Counsel Time In Bill of Costs Not To Be Reduced Unless Clearly Unreasonable

Today's Superior Court decision in Song v. Hong, 2008 CanLII 21420 (ON S.C.) is useful for the proposition that, in reviewing a bill of costs, the Court ought to allow some margin and not reduce time spent unless it was clear unreasonable.

The Court notes:

"The Court must decide if the hours spent are reasonable. In Carpenter v. Malcolm, Mr. Justice Catzman, as he then was, held that counsel was entitled to be paid for the full amount of docketed time. He said in his reasons that counsel are entitled to discharge their obligations without expecting an arbitrary reduction.

If counsel are to discharge the functions which the Courts expect them to discharge, and on occasion fault them for not discharging, they ought to be able, in my view, to expect that their clients' party-and-party costs will be assessed in a manner that reasonably and without arbitrary diminution acknowledges the effects legitimately expended in that connection. (Carpenter v. Malcolm, [1985]O.J.No.1889(H.C.J.))

See also: Roberts. v. Morana, supra, at para 7, which cites Carpenter v. Malcom with approval.

...

[T]he function of the Court is not to assess the amount of time with hindsight, but rather to determine if any of the time claimed is so grossly excessive as to be obvious overkill. In Tri-S Investments v. Vong, Madam Justice Feldman said the following:

I do not view it to be the courts function when fixing costs to second guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be overkill. (Tri-S Investments v. Vong, [1991] O.J. No. 2292 (Gen. Div)). "

James Morton
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