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Loye v. Bowers, 2020 ONSC 456 (CanLII), <http://canlii.ca/t/j4vgp
[33] The defendants claim $60,047.40 for disbursements. I will review some of them which cause me concern.
[34] Dr. Marks was called as a defence expert witness in the area of orthopedic surgery. Dr. Mark’s wrote a reply medical report which was 82 pages in length, compared to the plaintiff’s expert report of 18 pages. In fairness to Dr. Marks, he had to review in detail the lengthy pre-accident and post-accident medical history of the plaintiff in rendering his opinion. He charged $11,300 for the written report which is somewhat on the high side but not unreasonably so. His evidence was clear and persuasive and in my view, it was important in assisting the jury to render its verdict, which was favourable to the defendant.
[35] Counsel for the plaintiff objects to the fact that in addition to the fee for his written report, the defendant also claims $24,182 as a witness fee for Dr. Marks’ preparation and appearance to testify during one day of this trial. He provided counsel with his docketed hours of preparation which amounted to 14.25 hours at $800 per hour. He further charged $10,000 for his appearance to testify for a full day.
[36] It appears that he had 9 teleconference calls with counsel between November 4, 2019 and November 12, 2019 which was supposed to be the day that the trial started. In fact, it did not start until a week later due to a number of pre-trial motions brought by the defendant.
[37] I find the time and fees charged by Dr. Marks to be totally excessive. His hourly rate of $800 is jaw dropping. I find that he should have been able to be prepared to give his evidence in three hours of consultation with counsel and personal review of his report. I will allow the defendant $3,000 for preparation of Dr. Marks to testify. I allow the sum of $5,000 for his attendance at trial and giving his testimony. Thus, I allow preparation and attendance fees for Dr. Marks of $8,000 plus HST of $1,040.00 for a total of $9,040.00, reduced from the amount claimed of $24,182.00.
Hotel Accommodation and Meals for Counsel:
[38] In the defendant’s Bill of Cost, there are significant claims made for the cost of meals, accommodation and car rentals for each counsel. They are as follow:
Ms. Van Rensburg: Hotel accommodation and parking $5,687.65
Car Rental and Gas: $800.80
Meal Expenses: $1201.25.
Ms. Panno: Hotel accommodation and meals: $6,000.
Meal Expenses: $1200.00
Mileage: $371.52.
[39] The total claimed by both of the defendant’s trial counsel for hotel accommodations and meals is $14,088.90.
[40] Section 30 of the Tariff gives the court discretion to allow accommodation and travelling expenses incurred by a party. I must say that I find the hotel expenses claimed to be excessive. Personally, I stayed at the Radisson Hotel in Kitchener on a number of occasions during this trial at a government rate of $115 per night plus taxes (which included breakfast). The total bill each night was approximately $138.00. It is a clean, safe hotel located within a ten-minute drive from the court house.
[41] I have no idea from the information given to me of the rate charged for the room at the hotel where they were staying. I am aware that I checked the cost of another hotel in Waterloo and it would have cost $229 per night and hence I did not stay there.
[42] I feel that it is incumbent on counsel to search out and find the most reasonably priced appropriate hotel in the region of a courthouse if it is expected that their client would be asking the adverse party to pay their expenses. I have no evidence in that regard.
[43] I have no information with respect to the number of nights each counsel stayed at a hotel, which hotel they stayed at, the cost per night, whether they sought and obtained a reduced “business” rate. I have no idea of the costs incurred for each meal nor whether alcohol was included in the bills.
[44] I also take into account the fact that counsel are employed by TD Insurance as “in house counsel”. This accident occurred in London but was tried in
Kitchener. While TD is entitled to counsel of its choice, it seems to me to be unreasonable to require the plaintiff to have to pay the hotel and meal costs of two counsel from out of town. I must ask myself why a lawyer from the Kitchener/Waterloo region could not have been retained to act as co-counsel to help limit the costs incurred in this matter and which now are demanded from the plaintiff.
[45] I therefore allow the defendant’s claim for hotel accommodations in the amount of $6,000. I allow the sum of $1200.00 for meals.
[46] I further disallow the claim for $1160.00 related to a consultation with 30 Forensic Engineering, as no report or witness was called by the defendant from that firm.
[47] In all other respects, I accept the amounts claimed for disbursements as being appropriate and assessable.
Conclusion:
[48] The defendant shall have judgment against the plaintiff for his partial indemnity costs, disbursements and HST tax as follows:
a. Total Fees: $134,995.00
b. HST $ 17,549.50
c. Disbursements: $ 36,754.18
Total: $189,298.68