COURT OF APPEAL FOR ONTARIO
LASKIN, GOUDGE and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)
and
DAVID COSTA and RICARDO G. FEDERICO
(Appellant)
Alan J. Lenczner, Q.C. for the appellant
Jim W. Smith for the respondent
Heard: September 13, 2007
On appeal from the order of Justice Ian Nordheimer of the Superior Court of Justice dated December 20, 2006, reported at 2006 49284.
ENDORSEMENT
INTRODUCTION
1The appellant brought an application for costs incurred by him, including both fees and disbursements, in the representation of Rick Cabral on issues relating to solicitor/ client privilege. The application judge ordered the Crown to pay the appellant for his services at the prevailing rates under the Legal Aid Plan. The application judge further ordered that any disputes regarding the number of hours for which the appellant should be paid, should be referred to the Legal Aid Plan to be dealt with in accordance with its normal procedures.
2The appellant contends that the application judge should have determined the number of hours on the material before him, and because he failed to do so, this court should. The appellant says that the time spent on the file should be estimated at 140 hours.
3For the following reasons, the appeal is allowed and the compensation to the appellant is hereby fixed by this court.
BACKGROUND
4The Law Office of David Costa was searched and the police, pursuant to a warrant, seized files relating to Rick Cabral, a former client of Mr. Costa. Mr. Costa was charged with perjury relating to his representation of Mr. Cabral. The material seized was deposited with the Sheriff pending an application to determine if any of the seized material was covered by solicitor and client privilege.
5The Crown brought an application to determine which, if any, of the documents were subject to a proper claim of solicitor and client privilege so that those documents not covered could be released to the prosecution. Crown counsel with carriage of the case gave notice of the application to the appellant so that he could make submissions on behalf of Mr. Cabral.
6The appellant made a series of court appearances in response to the Crown’s application for access to documents seized from Mr. Costa’s law office. These appearances included a pre-hearing conference before Chief Justice LeSage resulting in the order creating the mandate, which was to govern the appellant’s conduct. A further order was issued by Chief Justice LeSage amending the earlier order.
7At no point in the time regarding the solicitor/client privilege application hearing did any Crown representative come to an agreement with the appellant as to the hourly rate payable to him in relation to the fees incurred for responding to the solicitor/client privilege issues. Nor did the appellant, at any time, request an order for costs in the motion to quash the search warrant.
8The Crown offered payment to the appellant at the Legal Aid rate, which the appellant refused. He brought this application seeking costs for 125 - 150 hours at the rate of $350 plus disbursements payable by the Crown. On appeal, he seeks fees of $350 per hour for 140 hours and disbursements of $8,521.25.
9The appellant did not keep dockets of the time he expended on the solicitor/client issues. He indicated that the total hours being claimed by him are estimates based on his best recollection.
ANALYSIS
10In our view, the application judge erred in concluding that he was bound to award the rate decided by the government that is appropriate for legal aid, and by declining to exercise his own judgment on what was a reasonable remuneration for the appellant. In doing so the application judge wrongly fettered his discretion, and erred in determining that this is a case where the appellant’s engagement was pursuant to the criminal interest of his client.
11It was the client’s interest in privilege only that was engaged so that the use of the criminal legal aid rate is not as directly relevant as the application judge assumed. While it is true that the privilege issue arose in a criminal case, it was not a criminal case in which the client’s interest was engaged, except for the issue of privilege. Indeed, we were advised that the criminal matter against the client in which the appellant acted had been concluded at this point.
12In addition, the application judge did not deal with how disbursements are to be dealt with. Nor is it clear from his reasons how Legal Aid’s process for dealing with the appropriate number of hours is applicable, given that this would be a case where legal aid would not have granted a certificate.
13Given the error in principle we would set aside his conclusion. Furthermore, the record is such that this court is able to exercise the proper discretion. In doing so, we believe it is however appropriate to take into account the fact that these are public funds and one marker for the level of expenditure of public funds on an hourly basis is what legal aid pays in criminal matters. However, it is not the only marker.
14In our view, a reasonable hourly rate for the appellant would be $200. The parties responded to our request to supply us with arguments about whether the 140 hours spent by the appellant is reasonable. After considering their submissions we are of the view that the time is reasonable.
15As to disbursements we are of the view that the appellant should receive them. These are for the retention of a computer expert and two lawyers to provide junioring services. Neither of the latter are significant amounts.
16This level of compensation is reasonable given that the interest of justice required that the appellant’s client be represented on the privileged debate. While the appellant was not strictly serving as an amicus, it is an apt comparison.
17The appeal is allowed. As noted, we are of the view that the record permits this court to exercise its discretion and fix the costs. Accordingly, the order of the application judge is varied to award the appellant fees of $200 per hour for 140 hours and disburse-ments of $8,521.25. There is no order as to costs as the appellant is not seeking any.
“John Laskin J.A.”
“S.T. Goudge J.A.”
“H.S. LaForme J.A.”
