Supreme Court of Nova Scotia
Citation: Wadden v BMO Nesbitt Burns, 2014 NSSC 11
Date: 2014-01-13
Docket: Hfx No. 216059
Registry: Halifax
Between:
Calvin Wadden, 3019620 Nova Scotia Limited
and Andrea Wadden
Plaintiffs
v.
BMO Nesbitt Burns
Defendant
|
Judge: |
The Honourable Justice Gregory M. Warner |
|
Heard By Written Submissions to: |
October 7, 2013 |
|
Counsel: |
W. Dale Dunlop, for the Plaintiffs Calvin Wadden, 3019620 Nova Scotia Limited and Andrea Wadden
Linda L. Fuerst, for the Defendant BMO Nesbitt Burns |
By the Court:
[1] This costs decision relates to BMO Nesbitt Burns’ (“BMO”) successful defence of the Plaintiffs’ claim, one of several actions in the “Knowledge House” litigation determined after a joint trial. The trial decision is reported as 2013 NSSC 248.
[2] The Plaintiffs were one of two groups to claim wrongdoing by BMO in respect of the Knowledge House litigation. The other, Plastics Maritime Limited and Derek Banks, settled with BMO in or about May 2011.
BMO Nesbitt Burns’ Submissions
[3] The case was lengthy, complex and expensive. It spanned 9½ years from original notice to trial. Until 2011, the Plaintiffs claimed that BMO participated in a conspiracy to manipulate KHI’s share price on the Toronto Stock Exchange. At trial, the Plaintiffs pursued claims that BMO acted negligently and in breach of their contract with the Plaintiffs. BMO’s counsel attended for 17 days of the Knowledge House trial held in the spring of 2012. That trial ended prematurely and abruptly, after only two months, when BMO elected to call only one short witness and NBFL called none.
[4] BMO’s participation in the pretrial processes included attendance at discovery examinations of five defence (BMO) witnesses, two Plaintiffs and two witnesses advanced by the Plaintiffs (on more than one occasion); motions to compel answers to undertakings, and personal attendance by counsel at 16 case management conferences between January 2008 and April 2011.
[5] On February 3, 2012, 10 days before the trial actually commenced, BMO made a formal offer to settle (pursuant to CPR 10) for $475,000.00. The offer was not accepted.
[6] BMO seeks an award of lump costs of $725,000.00 plus disbursements of $200,000.00.
[7] This action was commenced on February 24, 2004, when this Court’s cost regime was the “old” (1989) cost regime, which regime was replaced a few months after the action commenced (on September 24, 2004) by a “new” costs regime. Counsel notes that technically the 1989 costs regime for party and party costs applies, but the actual costs of litigation have increased significantly since the 1989 costs regime so that awards of party and party costs under the 1989 old tariff no longer provide for substantial indemnity to successful litigants, as they were intended when implemented.
[8] By the present Costs Rule - CPR 77, last revised as part of the 2009 general revision of the Civil Procedure Rules, the Court gave itself discretion, despite the party and party costs tariff, to award costs that “will do justice between the parties” (CPR 77.02), and specifically to award lump sum costs (CPR 77.08) to provide partial but substantial indemnity to successful litigants.
[9] BMO cites decisions in which, despite the old 1989 party and party tariff, this Court has granted lump sum awards in actions commenced shortly before September 24, 2004, and in which most of the pretrial processes and the trial itself occurred after the September 24, 2004 tariff became effective. They include Bevis v CTV Inc., 2004 NSSC 209; Willis v Bernard L. Mailman Projects Ltd., 2008 NSSC 94 and Burns v Sobeys Inc., 2008 NSSC 102. These decisions took guidance from the “new” 2004 tariff in awarding lump sums higher than the 1989 tariff in actions commenced before September 2004 but completed after.
[10] Counsel notes that the starting point for determining party and party costs is the tariff. The tariff provides that where the main issue is a monetary claim which is dismissed, the “amount involved” is determined having regard to: (i) the amount provisionally assessed if any; (ii) the amount claimed; (iii) the complexity of the proceeding; and (iv) the importance of the issues.
[11] For a long time the Plaintiffs did not disclose or particularize the amount claimed. Only in their pretrial brief of January 16, 2012, did they claim $11,729,893.51.
[12] BMO itemizes eleven items that made the litigation factually and legally complex, in addition to the pretrial motions, the evidentiary issues and the voluminous documentary evidence.
[13] BMO submits that the issues were important. The allegation of conspiracy to manipulate KHI stock price, only abandoned in February 2011, in a high profile case caused real risk to the reputation of BMO, both locally and nationally.
[14] As part of the first step in the determination of party and party costs, BMO calculates costs based on the amount claimed by the Plaintiffs using the 1989 Tariff, Scales 3 (basic scale), 4 and 5. Based on an 11.7 million dollar claim, these totaled between $359,000.00 (Scale 3 basic) and $597,000.00 (Scale 5 highest scale).
[15] The 2004 tariff consolidated the 5 old scales into three scales, and added $2,000.00 per day for each day of trial. Applying Scale 2 (basic scale) of the 2004 Tariff to the amount claimed, costs would be $798,000.00 and using Scale 3, $987,000.00 (including $34,000.00 for 17 trial days).
[16] Counsel then applies the non-exclusive list of eight factors enumerated in CPR 77.07(2) when considering whether to add to or subtract from tariff costs. Again, BMO notes that the Plaintiffs were completely unsuccessful and that their pretrial conduct (failing to drop the conspiracy claim until a year before trial as well as delays in answering undertaking) and conduct during trial (inadmissible evidence and submissions) justify increased costs.
[17] Pursuant to CPR 10, it made a formal offer to settle 10 days before trial. Counsel submits that, pursuant to CPR 10.09(2), a judge may award costs to a party who successful defends a proceeding and obtains a favorable judgment in an amount based on the tariffs increased by 25%, if the offer is made after the finish date.
[18] BMO attached to its submissions an unsworn listing of disbursements incurred by it, totalling $220,591.64. The 40-page list contained over 700 entries but no invoices or other supporting documents. These disbursements included in-house copying at 15¢ per page and one-half the travel expenses for case management meetings. BMO rounded down its claim for disbursements to $200,000.00.
[19] Without providing evidence of its actual fees to its client, BMO’s counsel submitted that “an award of 1.2 million dollars would approach complete indemnification of the actual fees incurred by BMO Nesbitt Burns.” There was no other evidence or submissions with respect to actual fees incurred by BMO, nor whether any of those actual fees related to BMO’s defence of the Plastics Maritimes Ltd./Banks action, settled in May 2011.
Plaintiffs’ Submissions
[20] The Plaintiffs’ brief addresses only two points.
[21] First it disputes BMO’s entitlement to disbursements related to travel expenses for out of province counsel. It cites Wall v Haney, 2007 NSSC 153, at paras 15 and 17. It argues that neither of the two exceptions permitting claims for disbursements for travel by non-local counsel in the Wall v Haney case applies to the facts of this case. BMO has not established that it could not have retained local counsel by reason of potential conflicts of interest or otherwise.
[22] Second, the Plaintiffs note that the costs claimed by BMO, if ordered jointly against all three Plaintiffs, would exceed the claims of two of the three Plaintiffs against BMO. Andrea Wadden’s claim was for approximately $305,000.00 and the 3019620 Nova Scotia Limited claim was for approximately $696,000.00 or, in total, about 10% of the amount claimed by all Plaintiffs. Counsel submits that the costs award against each Plaintiff should be proportional to the amount claimed by each of the Plaintiffs, and not joint and several.
BMO’s Response Submissions
[23] In a reply brief, BMO addresses the second issue raised in the Plaintiffs’ brief.
[24] It argues that the Plaintiffs acted jointly and as “a common enterprise” throughout. Counsel cites Mark M. Orkin, The Law of Costs, (2nd ed., looseleaf, Toronto: Canada Law Book, 2013) at s. 2.96 where the author writes that liability of unsuccessful plaintiffs is joint and several, unless the Court otherwise exercises its discretion. Said differently, the presumptive rule favors joint liability.
[25]
Counsel cites Griffin
v Corcoran, [2001] NSJ No. 158 (NSCA) at paras 85 and 89; Ontario v
Rothmans Inc., [2013] ONCA No. 353 at para 62 and King v On-Stream
Natural Gas Management Inc., [1993] BCJ No. 2283 (BCSC) at para 17.
Counsel distinguishes Delellis v Delellis and Delellis, 2005 CanLII
36447 (ONSC), where the losing respondent’s claims differed and their defenses
were conducted differently.
Analysis
Overview
[26] The Knowledge House litigation, with each of the separate actions, claims, counterclaims, cross-claims and third-party claims, managed together but not consolidated, and either settled along the way or tried together, differs from the conventional procedure for civil litigation.
[27] The uniqueness of this litigation extends to the costs analysis in this Action (Wadden/BMO) and the yet-to-be-argued-and-decided costs decisions in related actions.
[28] Some other costs decisions, unrelated to this litigation, have involved larger claims, counterclaims, cross-claims and third-party claims. Some have involved actions with multiple parties. Some have involved multiple and complex legal and factual issues.
[29] None of the precedents cited by the parties or reviewed by the Court for this costs decision appear to have involved the same combination of multiple parties, multiple actions, mix of claims, counterclaims, cross-claims and third-party claims or the complexity and extent of pre-trial processes, as was evident in this litigation.
[30] The period of time from the commencement of the first action (October 2001) to the commencement of trial (February 2012) is reflective of the fact that this was not ordinary litigation. The length of the litigation was not the result of unreasonable foot dragging by the Plaintiffs or BMO.
[31] When the initial litigation was commenced in 2001, the costs regime for party and party costs was governed by a 1989 tariff, intended to reflect a portion of actual litigation costs before 1989. Effective September 24, 2004, shortly after the time that most of these actions were commenced, the 1989 scale was updated to reflect what was perceived to be the substantial increase in actual litigation costs up to 2004. In addition, the “new” tariff was intended to incorporate the principle of substantial, but not total, indemnity of successful litigants’ reasonable litigation costs. The 2009 overhaul of the Civil Procedure Rules did not include a revision of the costs regime or update of the 2004 schedule of tariffs for party and party costs (except new rules in CPR 10 respecting the effect of settlement offers).
[32] In a seminal 1992 costs decision – Landymore v Hardy, 1992 NSSC 70, Saunders J (as he then was), adopted the principle that when awarding costs to a successful party, the award should reflect a substantial contribution towards, but not total indemnity of, that party’s objectively reasonable litigation costs.
[33] The Nova Scotia Court of Appeal endorsed this principle in Williamson v Williams, [1998] NSJ No. 498. Freeman J.A. added that “substantial” meant more than fifty percent and less than one hundred percent of a lawyer’s reasonable bill, and more specifically might have been between two-thirds and three-quarters. These decisions adopted lump sum awards to implement the principle of substantial indemnity. The courts sought to avoid “artificial” application (or manipulation) of the tariff for party and party costs as a means to implement the principle.
[34] The principle enunciated in Landymore and defined in Williamson, has been repeatedly applied by our courts. See: Bevis v CTV, 2004 NSSC 209 (para 13); Driscoll v Crombie Developments, 2006 NSSC 262; Morash v Burke, 2007 NSSC 68 and, very recently, Armoyan v Armoyan, 2013 NSCA 136.
[35] In DRL Coachlines v GE Canada, 2011 NSCA 23, at para 34, the Court of Appeal specifically rejected the necessity of tendering information as to the actual legal costs of the successful party to satisfy the principle that a costs award is to provide a substantial but not total indemnity for the legal fees incurred by the successful party. The Court’s statement is consistent with the analysis in Landymore and Williamson. The principle of substantial indemnity by lump sum award is not dependent on actual legal costs charged the party. It is related to an objectively-determined assessment of what constitutes reasonable legal fees.
[36] This point is relevant by reason of BMO’s request for substantial but not total indemnity of its legal costs by means of a lump sum award. It is not necessary that BMO produce evidence of its actual legal costs.
[37] Civil Procedure Rule 77.06 provides that party and party costs are quantified in accordance with the tariff determined under the Costs and Fees Act. For a decision after trial, Tariff A appended to CPR 77 applies.
[38] Civil Procedure Rule 77.07 authorizes a judge to add to or subtract from the tariff amount, using a non-exclusive list of factors relevant to the costs assessment.
[39] Civil Procedure Rule 77.02 authorizes a judge to make any order about costs “as the judge is satisfied will do justice between the parties”.
[40] Tariff A under the Costs and Fees Act applicable to decisions in a proceeding after trial as of 1989 reads in part as follows:
|
Amount Involved |
Scale 1 |
Scale 2 |
Scale 3 |
Scale 4 |
Scale 5 |
||
|
|
|
(3/5) |
(4/5) |
(basic) |
(6/5) |
(7/5)
|
|
|
|
. . .
|
||||||
|
100,000 |
4,425 |
5,900 |
7,375 |
8,850 |
10,325 |
||
|
|
|
|
|
|
|
|
|
|
Over $100,000 add a percentage of the amount over, as shown in each column |
up to 1% |
up to 2% |
up to 3% |
up to 4% |
up to 5% |
||
[41] That Tariff defined the “amount involved” where the main issue is a monetary claim which is dismissed as:
. . . an amount determined having regard to
(i) the amount of damages provisionally assessed by the court, if any,
(ii) the amount claimed, if any,
(iii) the complexity of the proceeding, and
(iv) the importance of the issues;
[42] As of September 24, 2004, the relevant portion of Tariff A under the Costs and Fees Act was changed to read as follows:
|
Amount Involved |
Scale 1 (-25%) |
Scale 2 (Basic) |
Scale 3 (+25%) |
|
. . . |
|
|
|
|
more than $1,000,000 |
The Basic Scale is derived by multiplying the “amount involved” by 6.5%. |
||
[43] Tariff A also reads:
TARIFF A
Tariff of Fees for Solicitor’s Services Allowable to a Party
Entitled to Costs on a Decision or Order in a Proceeding
In applying this Schedule the “length of trial” is to be fixed by a Trial Judge.
The length of trial is an additional factor to be included in calculating costs under this Tariff and therefore two thousand dollars ($2000) shall be added to the amount calculated under this tariff for each day of trial as determined by the trial judge
[44] The “amount involved” definition remained unchanged from 1989.
[45] The precondition to application of one of these scales to either the 1989 or the 2004 Tariff is determination of the “amount involved”. Where a monetary claim is dismissed, the four factors are the amount provisionally assessed, the amount claimed, the complexity of the case, and the importance of the issues.
[46] No amount was provisionally assessed. BMO says the amount claimed in Wadden’s pretrial brief was 11.7 million dollars. Wadden’s pretrial brief, apparently the first quantification of the Wadden claim was $11,729,893.51. It had four components:
|
Net loss from stock portfolio |
$5,257,874.00 |
|
|
|
|
Interest for 11½ years at 7% |
$4,452,935.00 |
|
|
|
|
Consequential losses |
$815,169.00 |
|
|
|
|
Interest on consequential losses at about 7% |
$1,203,915.00 |
[47] There is a dearth of authority with respect to whether prejudgment interest rate at any rate should be included in the “amount involved”. In the early 1990s, Justice Goodfellow wrote several decisions where he excluded prejudgment interest. None of these decisions include an analysis of why prejudgment interest was excluded. Their factual matrices differed from this case.
[48] I am unaware of any reason why prejudgment interest, especially in proceedings that extended over 12 years and in which prejudgment interest is such a significant portion of the damages, absent evidence of foot dragging by the successful party, ought to be excluded from the assessment of costs.
[49] The only modification I would make to BMO’s submission that the “amount involved” be 11.7 million dollars is that the claim by the Plaintiffs for prejudgment interest at 7% over 11½ years is and was a non-starter. The default prejudgment interest rate is 5%; alternatively such other actual amount as is established. In the trial decision, this Court accepted the detailed submission of NBFL that the appropriate prejudgment rate for the relevant period should be 2.614% based on the average of the rate of return of the one-year treasury bill and the two-year Government of Canada bond.
[50] I would adjust the amount of the interest portion of the “amount involved” ($6,656,150) by 50% to reflect the realistic risk to BMO if damages had been awarded against it, and prejudgment interest was awarded. The extreme length of time taken by the litigation, and the fact that the prejudgment interest is such a large portion of the claim, make it fair that it be included in the “amount involved”. Said differently, it would be unjust to penalize a successful party, who had not caused unreasonable delay in the proceeding, to exclude a major element of the claim or who was subject to the risk of a very substantial prejudgment interest claim.
[51] Applying the second factor, $8,901,468.00, rounded to $8,900,000.00, is the appropriate figure for the “amount involved”.
[52] The third and fourth factors relevant to calculation of the “amount involved” - complexity of the proceeding and importance of the issues, does not alter the justification for using the calculation based on the second factor.
[53] The trial issues between BMO and the Plaintiffs were less complicated than those between NBFL and the Dunlop clients. They primarily consisted of determinations of fact, but nothing in the actions in this litigation was straightforward.
[54] Applying the 1989 Tariff A to $8,900,000.00, using the Basic Scale (Scale 3), would lead to an award of $271,375.00; applying Scale 5 (the top scale) would lead to an award of $450,325.00.
[55] Applying the 2004 Tariff A, and adding 17 trial days, using Scale 2 (Basic) would lead to an award of $615,500.00; applying Scale 3, $757,125.00.
[56] BMO made a formal offer to settle under CPR 10 on February 3, 2012, ten days before the commencement of trial. It offered to settle for $475,000.00, all inclusive. The offer was open for acceptance until 10 minutes after the commencement of the trial.
[57] Civil Procedure 10.09(1) and (2) apply. They read as follows:
Determining costs if formal offer not accepted
10.09 (1) A party obtains a “favourable judgment” when each of the following have occurred:
(a) the party delivers a formal offer to settle an action, or a counterclaim, crossclaim, or third party claim, at least one week before a trial;
(b) the offer is not withdrawn or accepted;
(c) a judgment is given providing the other party with a result no better than that party would have received by accepting the offer.
(2) A judge may award costs to a party who starts or who successfully defends a proceeding and obtains a favourable judgment, in an amount based on the tariffs increased by one of the following percentages:
(a) one hundred percent, if the offer is made less than twenty-five days after pleadings close;
(b) seventy-five percent, if the offer is made more than twenty-five days after pleadings close and before setting down;
(c) fifty percent, if the offer is made after setting down and before the finish date;
(d) twenty-five percent, if the offer is made after the finish date.
[58] BMO received a favorable judgment. It delivered a formal offer to settle at least one week before trial. The offer was not withdrawn or accepted. The Plaintiffs were completely unsuccessful.
[59] This litigation was subject to a formal case management process. Decisions with respect to how the litigation proceeded and the dates for the hearing of motions as well as for the trial itself were discussed between January 2008 and late 2011 at 16 case management conferences, attended in person by counsel or parties, together with several telephone conference calls.
[60] This was in lieu of a request for a date assignment conference pursuant to CPR 4.13, or a formal date assignment conference “setting down” the trial commencement. On 2010, at a case management conference, the parties agreed to a tentative commencement date for the trial of October 3, 2011. Shortly after the start date was changed to October 31, 2011. As that date approached, the availability of counsel and a few outstanding procedures pushed back the agreed-upon trial dates from October 2011. On November 16, 2011, timelines for exhibit books and briefs, and the final (actual) start date for the trial were set. On December 19, 2011, a timeline for exchange of witness lists was fixed and counsel confirmed that no outstanding pretrial matters remained outstanding.
[61] In my view, the absence of a request for date assignment conference and formal “date assignment conference”, setting down the trial dates and fixing a finish date, do not detract from the entitlement of BMO to receive the benefit of the settlement provisions contained in CPR 10. Losing the benefits of making offers of settlement, because the pretrial management of the litigation was more flexible than the conventional case to which CPR 4.13 to 4.19 apply, would detract from an important principle of civil procedure rules – encouragement of pretrial settlement in particular, and the just, speedy and inexpensive determination of every proceeding (CPR 1).
[62] Civil Procedure Rule 10.09(2)(d) gives a court discretion to increase party and party costs by 25%.
[63] Applying this arithmetic to Scale 3 or Scale 5 of the 1989 version of Tariff A would increase BMO’s costs award to between $339,000.00 and $562,000.00.
[64] Applying the arithmetic to the 2004 version of Tariff A, Scale 2 (basic) and 3 (highest), would increase BMO’s costs award to between $765,000.00 and $946,000.00.
[65] BMO does not provide evidence of the actual legal fees charged in relation to the Plaintiffs’ claims against it, nor is it clear from counsel’s brief whether its defence costs of approximately 1.2 million dollars included defence of the other action against it, settled in May 2011. It is not necessary that the Court know BMO’s actual legal costs. Based on the Court’s knowledge of the pretrial procedures and the complexity of the litigation, BMO’s submissions as to its legal costs are not out of order or unexpected.
Conclusion
[66] BMO seeks an order awarding it lump sum costs of $725,000.00 plus disbursements in the amount of $200,000.00 against the Plaintiffs on a joint and several basis.
[67] Its claim for a lump sum of $725,000.00 is consistent with the application of the principle of substantial but not total indemnity of its reasonable legal bill. It is significantly above the 1989 Tariff but well within the range for party and party costs for a complex matter applying the 2004 Tariff.
[68] The Court awards BMO Nesbitt Burns legal fees in the amount of the $725,000.00.
Disbursements
[69] BMO produced a 40-page schedule, listing over 700 items, of its solicitor’s record of disbursements. They total $220,591.64 and include long distance charges, photocopying, printing, binding, faxing, couriering, filing fees, transcripts, travel costs and expert costs. BMO reduces its claim to $200,000.00.
[70] As noted, the Plaintiffs submit that the disbursements related to travel by out of province counsel should not be awarded. In Wall v Haney, the Court ruled that there was no authority to award as disbursements travel costs for away counsel to attend discovery and trial, subject to two exceptions: (1) when it was specifically authorized in the Court’s decision; and (2) where the party was able to establish that the retention of local counsel was not appropriate.
[71] The Plaintiffs submit that BMO has not established any valid reason why it could not have retained local counsel. Despite the large number of litigants, BMO has not shown that it could not have retained Nova Scotia counsel.
[72] BMO’s reply brief does not respond to this submission.
[73] I have carefully reviewed the 40-page list of disbursements. No actual invoices or detailed explanation of the disbursements is contained in the schedule attached to BMO’s brief. The categories of disbursements are not summarized. My summary of the totals is therefore approximate.
[74] I have problems with three elements of BMO’s claim for disbursements.
[75] First, while a party has the right to retain the lawyer of their choice, recovery of travel disbursements by a successful party against the losing party must not only be actual but reasonable in the circumstances. Ms. Fuerst showed herself to be as good a counsel as a client could possibly retain for this kind of litigation. That is not the test for claims of travel disbursements for lawyers from away. I agree with the Plaintiff that BMO has not shown why it was necessary to obtain Toronto counsel. The total travel expenses claimed appear to exceed $37,000.00.
[76] Secondly I have problems with the disbursements claimed in four lines without supporting invoices from Deloitte & Touche totaling $91,520.00. No invoices or itemization of the work done or its relevance to the proceeding was produced. The invoices appear to relate to the “assessment of losses” report and two letter addenda (Exhibit 91 to 93) tendered at trial and the evidence relating to these reports given by Robert Low over a few hours on the morning of April 17, 2012.
[77] My review of those reports, including hearing the evidence of Mr. Low, and my assessment of the insignificance of that evidence, combined with the absence of an itemization of the charges in relation to the report and evidence, are concerning. I am not satisfied that the expenditure was reasonable.
[78] Mr. Low’s evidence was not relied upon by the Court. Its relevance was marginal in the sense that even if the Plaintiffs had been successful in establishing that, for a six week period, BMO had improperly tied up the Plaintiffs’ shares and prevented them from being sold, the report and evidence would not have made any difference as to what the Court would have found. BMO’s expert evidence was to the effect that the Plaintiffs could have mitigated their losses from BMO’s freezing of their accounts by sale of large quantities of KHI shares after their accounts were released.
[79] At trial I concluded that there was not sufficient market or float for KHI shares after August 2000 such that any significant quantity of KHI shares could have been sold on the open market. I did not understand the basis for the $91,520.00 cost of Deloitte’s analysis.
[80] My third concern is common to most taxation of fees and disbursements made by the Court for party and party costs after trial. The issue is what disbursements are properly part of the general overhead of counsel, meaning part of counsel’s fee, versus what are proper disbursements related to the particular litigation that should be assessed separate from counsel’s normal overhead.
[81] As between a solicitor and his/her client, the allocation of expenses incurred by a lawyer - as part of the overhead or a separate disbursement, is a matter of contract. Contract does not apply in claims for disbursements on a party and party basis against a losing litigant.
[82] A related concern involves the amounts charged for disbursements. A lawyer and his/her own client may agree to a charge for certain services and disbursements at a rate that may or may not be the actual cost to the solicitor. As against losing litigants, costs must be both actual and reasonable.
[83] There are several entries in BMO’s list of disbursements for the cost of on-line research. At least eight were in the amount of $250.00, clearly an artificial figure. It has been my practice to consider these as part of the overhead of a lawyer and not a separate disbursement, as against losing litigants.
[84] Similarly, in-house copying charges are claimed in this case at 15¢ per copy. This Court has been in the practice of allowing, particularly where there are a significant number of copies, a disbursement for in-house copies of 10¢ per copy, unless some evidence of actual cost is provided.
[85] In summary, from the $220,591.64 listed as disbursements incurred, I deduct $30,000.00 respecting travel expenses; half the amount claimed for the Deloitte’s report and evidence, and about $5,000.00 for on-line research and copy charges. I approve $140,000.00 as actual and reasonable disbursements against the Plaintiffs.
Joint and Several Liability
[86] BMO claims jointly and severally against the three Plaintiffs. The Plaintiffs submit that the costs should be assessed against the three Plaintiffs pro-rata, based on their respective claims against BMO.
[87] I agree with BMO’s reply brief that the usual rule is that liability of unsuccessful plaintiffs for costs is joint and several. In this case, the claim of the Plaintiffs, who are related parties, overlap in respect of the factual and legal issues. They adopted a single common argument against BMO. One counsel acted for all three Plaintiffs in this action. The Plaintiffs’ goal and basis for imposing liability was common to all of the Plaintiffs.
[88] There is no principled basis, or circumstances special to this case, for the Court to depart from the general rule that liability for costs should be joint and several.
Warner, J.