Court File and Parties
DIVISIONAL COURT FILE NO.: 461/01
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
LANE, MEEHAN and LINHARES de SOUSA JJ.
RE: COLLEEN KHAN, RAY KHAN, SHELLY KHAN, JAMES KHAN and SONNY KHAN v. METROLAND PRINTING, PUBLISHING & DISTRIBUTING LTD., IAN PROUDFOOT, BRENDA LARSON, DEBORA KELLY, DAVID TEETZEL, CHRISTOPHER DOURIS and WILLIAM F. BELL
COUNSEL: Philip P. Healey, for the Plaintiffs/Appellants, Colleen Khan, Ray Khan, James Khan and Sonny Khan Alison B. Woodbury, for the Defendants/Respondents, Metroland Printing, Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson Debora Kelly, David Teetzel and Christopher Douris
E N D O R S E M E N T R E G A R D I N G C O S T S
1This Court acknowledges that there is a longstanding principle of awarding costs to the successful party. In the usual course, costs should follow the event. See Bell Canada v. Olympia and York Developments Ltd. (1994), 17 O.R. (3d) 135 (C.A.). However, regardless of whom has been successful in the litigation, the ultimate discretion to award costs rests with the Court, which discretion is to be exercised judiciously, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. As set out in R. 57.01(1) of the Rules of Civil Procedure, the result in the proceedings is only one of the factors to be considered by the Court, along with a list of other enumerated factors, in its deliberation on the question of costs. Furthermore, R. 57.01(2) states that the “fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.”
2After examining the written submissions of counsel on the question of costs in this case and considering all of the circumstances of this case, the Court comes to the conclusion that there should be no order as to costs, both on the appeal itself as well as on the application for leave to appeal before Then J. for the following reasons:
3By not raising the jurisdictional issue before Nordheimer J. in the first instance, both parties equally contributed to the error being made and the necessity of the appeal. This is a strong argument for each party bearing their own costs in both proceedings.
4The appeal on the question of the interplay between s. 12 of the Libel and Slander Act, R.S.O. 1990 c. L.12 and R. 56.09 of the Rules of Civil Procedure, raised a novel, difficult and complex issue. The result was neither obvious nor predictable and neither position taken by the parties could be said to be unreasonable in the face of the existing jurisprudence. An appellate disposition on this matter is of public benefit beyond the individual advantages to either party. In Mahar v. Rogers Cablesystem Ltd. (1995), 25 O.R. (3d) 690, Sharpe J. concluded in the matter before him where the issue raised was novel and involved a matter of public interest, that it was appropriate to exercise his discretion in favour of the party against whom he decided the jurisdictional point by making no order as to costs.
5In relying on the case of Mahar, supra, I am cognizant of the fact that Sharpe J. recognized that many of the cases in which an unsuccessful public interest litigant has been relieved of the usual cost order have involved suits against the government. That was not the case of the unsuccessful litigant before him. He concluded, however, that the principle could still apply to an unsuccessful public interest litigant who enjoyed a “substantial benefit and protection of a statutory monopoly in the provision of its services to the public”. No such analogy can be made on the facts of this case. However, the conduct of the successful appellants is of relevance in this matter.
6While this Court found in its decision that the case management motions judge did not have the jurisdiction to make the order that he did because of the nature of the case before him, it did not, in any way, find that he was not justified on the merits of the question to make the order for the security of costs against the Appellants. On the contrary, as found in his reasons and in his clear assessment of the conduct of the Appellants throughout the proceedings before him, “he correctly concluded that there may have been and could be in the future an abuse of the court’s process” by the Appellants. The exercise of his discretion in awarding security for costs was justified and neither unfair nor unreasonable.
7Nordheimer J. did not make a direct and unequivocal finding that the Appellants participated in the abuse of the court’s process. However, neither does R. 57.01(1), when enumerating conduct of any party as a factor to be taken in consideration by the court in awarding costs in a matter, speak of conduct that is so egregious as to amount to an abuse of process. Less serious conduct, such as that discussed by Nordheimer J. in his assessment of the Appellants conduct throughout the proceedings, would certainly suffice to make the consideration of R. 57.01(1)(e), (f) and (h) relevant to the facts of this case. It warrants, in the view of this court, that there be no order as to costs in this matter.
8With respect to the question of costs on the motion before the case management motions judge, Nordheimer J. carefully considered the submissions of the parties on the question of costs on the various claims for relief on the motion before him. He refused the request of the Respondents for a stay of the proceedings and granted to the Respondents other relief in addition to the order for security for costs for the reasons given. This Court can find no justification for interfering with the exercise of the discretion of the case management motions judge on the question of costs.
9Having decided the question of costs in the way that we have, it is not necessary for this court to consider the argument of the Respondents that the Appellants’ claimed costs are excessive or improper.
Linhares de Sousa J.
Lane J.
Meehan J.
DATE:
COURT FILE NO.: 98-CV-140288
DIVISIONAL COURT FILE NO.: 461/01
DATE: by written submissions
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
LANE, MEEHAN and LINHARES de SOUSA JJ.
RE: COLLEEN KHAN, RAY KHAN, SHELLY KHAN, JAMES KHAN and SONNY KHAN v. METROLAND PRINTING, PUBLISHING & DISTRIBUTING LTD., IAN PROUDFOOT, BRENDA LARSON, DEBORA KELLY, DAVID TEETZEL, CHRISTOPHER DOURIS and WILLIAM F. BELL
COUNSEL: Philip P. Healey, for the Plaintiffs/Appellants, Colleen Khan, Ray Khan, James Khan and Sonny Khan Alison B. Woodbury, for the Defendants/Respondents, Metroland Printing, Publishing & Distributing Ltd., Ian Proudfoot, Brenda Larson Debora Kelly, David Teetzel and Christopher Douris
ENDORSEMENT REGARDING COSTS
DATE: