In Huber v. Way, 2014 ONSC 6535 (CanLII), Mr Justice Patrick J. Flynn was dealing with costs of a simplified procedure case in which, to his dismay, the trial had lasted eight days. He had given judgment to the plaintiff for $134,994.40 and had found the defendant to be neither credible or reliable.
Although Justice Flynn said that he had been tempted to order full indemnity costs against the defendant, he reminded himself that “costs must still be reasonable”.
The first item that he disallowed was fees or disbursements relating to “legal research”: “[I]t is safe to say that lawyers are presumed to know the law and I would eliminate all time and expenses identified as ‘legal research’.”
The fees of the winning plaintiff’s counsel were cut back again, this time because he was from Toronto and the trial had taken place in Kitchener:
[20] When Boucher says “reasonable” as in “fair and reasonable” and within the “reasonable expectations of the losing party”, that definition of reasonableness must include a consideration of the legal marketplace where the proceedings were conducted.
[21] Mr. Wortzman is from Toronto. This case was conducted in Kitchener. There is a world of difference in those 100 kilometres as to what the market will bear.
[22] Mr. Wortzman’s actual hourly rate is set out as $650 before September 1, 2013 and $700 thereafter. He is 20 years to the bar. Those are rates which local counsel of similar experience could never demand.
[23] While Mr. Huber was certainly entitled to choose his own counsel for this case, it must be said that there are fine lawyers in Waterloo Region capable of conducting this Plaintiff’s case and able to do it for much less than Mr. Wortzman, while obtaining the same or similar results.
(In 2009, I posted about a decision of Mr. Justice McNamara, now our Regional Senior Justice, that was to similar effect. It was later followed by Justice Heidi Polowin in Young v. RBC Dominion Securities, 2009 CanLII 7181 (ON SC).)