Authorson (Litigation Guardian of) v. Canada (Attorney General), 2002 CanLII 6658 (ON SCDC)

Court File and Parties

COURT FILE NO.: 739/01 DATE: 20020912 SUPERIOR COURT OF JUSTICE - ONTARIO (Divisional Court)

RE: JOSEPH PATRICK AUTHORSON, by his Litigation Guardian, LENORE MAJOROS v. THE ATTORNEY GENERAL OF CANADA

BEFORE: JUSTICES FARLEY, ROY AND SANDERSON

ENDORSEMENT RE COSTS

Endorsement re Costs

1The parties made written submissions in respect of the Plaintiff's request for costs. The AG accepted that the Plaintiff was entitled to his costs of appeal to the Divisional Court but objected to such costs being on a substantial indemnity basis. We are of the view that an award on a partial indemnity basis is appropriate in these circumstances. See Gonawati v. Teitsson, [2002] O.J. No. 1340 (C.A.) where the Court of Appeal indicated that a substantial indemnity award would require something akin to the prosecution of an appeal being egregious, vexatious or completely devoid of merit.

2Since Messrs. Sengbusch and Greenaway were affiants, they were requested to withdraw as counsel on the hearing of the appeal. There should be no costs awarded for their attendance on the appeal and travel costs. However it appears that Mr. Sengbusch did legal work on the appeal (as opposed to his work on his affidavit) in the amount of 15 hours for which costs should be awarded. It does not appear that Mr. Greenaway was being claimed for other than his attendance in court.

3The AG does not doubt that counsel for the Plaintiff spent the time as outlined in the written submission. Mr. Colautti is senior counsel of 25 years experience. He has requested $300 per hour for his 29.5 hours of preparation work on a substantial indemnity basis which is quite reasonable given that he is "entitled" to ask for "up to $450 per hour" according to the Costs Grid. On a partial indemnity basis, we have no difficulty with the AG's suggestion that his preparation work be calculated at $250 per hour. Similarly we are in agreement with the AG's proposal that his 1½ days of counsel fee be calculated at $2,750. The student at law involvement of 0.4 hours is to be calculated at $20. Mr. Sengbusch is a lawyer of 26 years standing. We would calculate his time at $200 per hour as he was not spearheading the work for the Plaintiff.

Disposition

4In the result, the AG is to pay the Plaintiff costs of $13,145 plus the requested disbursements (subject to the above adjustment) plus applicable G.S.T.