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March 14, 2012

Costs - Reasonableness of Disbursements

Hamfler v. 1682787 Ontario Inc., [2011] O.J. No. 6190 (S.C.J.)

This is a useful case with respect to recovery of disbursements for expert reports following a trial. Justice Edwards applied a deep discount on several of the plaintiff's doctors’ and accountant’s fees for reports and trial preparation.

The jury awarded the plaintiff $188,000 in damages. He sought $87,600 in fees and $93,500 in disbursements. The main issue was the reasonableness of the disbursements.

Justice Edwards quoted Justice Borins in Moon v. Sher (2004), 246 D.L.R. (4th) 440 (C.A.) in holding that “a disbursement will be recoverable provided that it is both reasonable, not excessive and has been charged to the client." The following factors should be taken into account in determining reasonableness:

1. Did the evidence of the expert make a contribution to the case, and was it relevant to the issues?
2. Was the evidence of marginal value or was it crucial to the ultimate outcome at trial?
3. Was the cost of the expert or experts disproportionate to the economic value of the issue at risk?
4. Was the evidence of the expert duplicated by other experts called by the same party? Was the report of the expert overkill or did it provide the court with the necessary tools to properly conduct its assessment of a material issue?
(paragraph 17).

- Tara Pollitt

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