COURT OF APPEAL FOR ONTARIO
LASKIN J.A. (in chambers)
BETWEEN:
NURI T. JAZAIRI
Professor Nuri T. Jazairi, the appellant in person
Applicant (Appellant)
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ONTARIO HUMAN RIGHTS COMMISSION, YORK UNIVERSITY, HARRY ARTHURS, SENATE COMMITTEE ON TENURE AND PROMOTION, FACULTY COMMITTEE ON TENURE AND PROMOTION, TOM TRAVES, JOHN C. EVANS, ELIE APPELBAUM and ROGER LATHAM
Jane Langford, for the respondent York University
Respondents (Respondents)
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THE ATTORNEY GENERAL OF ONTARIO, CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS (CAUT) and YORK UNIVERSITY FACULTY ASSOCIATION
Heard: February 22, 2001
On appeal from the certificate of assessment of costs dated January 17, 2001 and the reasons for decision of Assessment Officer Michael Kane dated January 18, 2001.
LASKIN J.A.:
1Nuri Jazairi appeals an assessment of a party-and-party bill of costs for a motion for leave to appeal and a one-day appeal in this court. The Assessment Officer assessed the bill of McCarthy Tétrault, solicitors for the successful litigant York University, at $39,641.14, including a counsel fee of $35,000. He confirmed his assessment following objections from Mr. Jazairi. Although Mr. Jazairi raised several grounds of appeal, in my view, only one has merit: the counsel fee was excessive.
2To put this ground of appeal in context, I will briefly review the background facts. Mr. Jazairi is an economics professor at York University. He is a Muslim from Iraq and he has publicly supported the Palestinian cause in the Israeli-Palestinian conflict. In the early 1980s, Mr. Jazairi applied for a promotion to a full professor. His application was denied. He then filed a complaint of discrimination against the University under the Ontario Human Rights Code. He alleged that the University discriminated against him because of his political opinion. Although “political opinion” or “political belief” is not a prohibited ground of discrimination under the Code, Mr. Jazairi contended that it was included within the meaning of “creed”, which is a prohibited ground. The Commission rejected Mr. Jazairi’s contention and therefore refused to appoint a board of inquiry.
3Mr. Jazairi sought judicial review of the Commission’s refusal to appoint a board of inquiry. He argued that creed included political opinion or, in the alternative, that the omission of political opinion from the Code contravened s. 15 of the Charter. The Divisional Court dismissed his application.
4Mr. Jazairi sought leave to appeal to this court. Initially, this court granted leave only on the question whether creed included political opinion. However, after the Supreme Court of Canada released its decision in Vriend v. Alberta, [1998] 1 S.C.R. 493, Mr. Jazairi asked the court to reconsider its earlier decision. The court did so and also granted leave on a second question: if the Code does not prohibit discrimination on the ground of political opinion, does its failure to do so violate the equality guarantee in s. 15(1) of the Charter and, if so, is the violation justified under s. 1?
5In written reasons delivered by Finlayson J.A. (1999), 175 D.L.R. (4th) 302, this court answered both questions against Mr. Jazairi and therefore dismissed his appeal. Following submissions in writing, the panel awarded York University its party-and-party costs of the appeal and of the motion for leave to appeal.
6The bill of costs of York University’s solicitors shows that a senior counsel (a 1978 call to the bar), two junior counsel, a junior law clerk and several law students worked on the appeal.1 The senior counsel did the bulk of the work.
7I accept that the lawyers and others working on the file did the work that they said they did. I also accept – as the Assessment Officer did – their hourly rates: $200 for senior counsel, $125 for junior counsel (1994 and 1996 calls), $50 for the law clerk and the law students.
8I also accept that the decisions of assessment officers are entitled to deference from a reviewing court. The assessment officers are the experts in taxing bills of costs. Appellate courts should not be quick to overturn their assessments, especially on a question of amount. But an appellate court is not powerless to intervene, even where only the amount of the assessment is in issue. Where the amount assessed is unreasonably high, or unreasonably low, an appellate court is justified in intervening. In my view, the assessed counsel fee of $35,000 is unreasonably high. It is unreasonably high for these reasons:
The appeal raised two pure questions of law. Because these questions went to the Commission’s jurisdiction to inquire into Mr. Jazairi’s complaint of discrimination, no evidence was taken and therefore counsel did not have to review a transcript.
The factual background – the history of the proceedings – was straightforward and largely uncontested. Counsel for the University filed a 22-page factum on the appeal. The facts section repeated almost verbatim the facts section in the University’s factum in the Divisional Court.
Although the appeal raised two issues of law, York University argued only the first issue, whether creed included political opinion. On the second issue, the “Vriend issue”, the University relied on the submissions of the Attorney General for Ontario, who intervened both in the Divisional Court and in this court.
Counsel for the University had already argued the issue whether creed included political opinion in the Divisional Court. I acknowledge that the issue was important – this court granted leave on it – and that counsel for the University undoubtedly did additional research and preparation for the appeal to this court. The University’s factum in this court refers to several authorities, including American case law, that are not cited in its Divisional Court factum. Nonetheless, I expect a good deal of the research was already done for the judicial review application in the Divisional Court.
The argument of the appeal was not lengthy. Before the argument, counsel considered whether this court had jurisdiction to grant leave on the “Vriend issue” and also appeared on the intervention motions. But the argument of the appeal itself took only one day. The leave to appeal motion was done in writing.
9Thus the Assessment Officer awarded a $35,000 counsel fee for a one-day appeal on uncontested facts in which counsel argued a single, albeit important, question of law, which they had already argued once before in the Divisional Court. In my view, that amount is unreasonable. My quarrel with the reasons of the Assessment Officer is that though he dealt in detail with the minor individual complaints about the bill raised by Mr. Jazairi (who represented himself on the assessment and before me), he did not stand back and critically question whether what reasonably needed to be done to prepare and argue this appeal justified a $35,000 counsel fee. In my view, it did not. The counsel fee should be cut in half. $17,500 is a very fair counsel fee for this appeal and the associated preliminary proceedings.
10I allow the appeal, set aside the certificate of assessment and, in its place, issue a certificate for a counsel fee of $17,500 plus G.S.T. I make no change to the disbursements or G.S.T. on disbursements allowed by the Assessment Officer.
Released: MAR 08 2001 Signed: “John Laskin J.A.”
JIL