COURT FILE NO.: D03-0011

DATE: 2004-01-29

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DONALD MACALPINE,

The Plaintiff (Appellant) being self represented

Plaintiff (Appellant)

• and -

EXECUTIVE OFFICERS AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY AND MEMBERS OF THE ONTARIO PROGRESSIVE CONSERVATIVE PARTY CAUCUS AND SPECIFIC BOARDS AND DIRECTORS OF CORPORATIONS NAMED,

Daniel Guttman and Chantal Brochu for the Attorney General of Ontario

Mr. G. D’Alessandro for Bell Canada, Bell Mobility Inc. & B.C.E. Inc.

Ms. K. Jolley for the Certified General Accountants of Ontario

A. Weiss and Onofrio Ferlisi for the Bank of Nova Scotia, TD Bank and Royal Bank of Canada

Defendants (Respondents)

HEARD: Via Written Submissions

Justice Patrick Smith

Decision On Costs

1In my reasons released on December 30, 2003 I requested written submissions regarding costs.

2I have now had the opportunity of receiving submissions from the Plaintiff (Appellant), the Certified General Accountants of Ontario, the Attorney General of Ontario, “the Bell Defendants” (Bell Canada, Bell Mobility Inc. and BCE Inc.), the Bank of Nova Scotia, TD Bank and the Royal Bank of Canada.

3Mr. MacAlpine sought leave to appeal the decision of Pierce J. dated June 25, 2003 striking out his statement of claim. Leave was refused and the Appellant’s motion dismissed.

4This is a situation where costs should follow the event. The Defendants were completely successful in having the Appellant’s motion for leave dismissed. The question is whether those costs should be awarded on a partial or substantial indemnity basis.

5In view of the Province’s recent adoption of a cost grid a brief discussion of the general principles regarding the issue of costs is required.

6Subrule 57.01(3) of the Regulations has been revoked and substituted with the following:

Fixing Costs: Tariffs

(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.

7The court’s general statutory authority with respect to costs is found in s. 131(1) of the Courts of Justice Act which provides as follows:

Subject to the provision of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

8The new cost grid does not replace the court’s overall discretion regarding costs. As stated by Blair J. in Upper Canada District School Board v. Conseil de District des Écoles Publiques de langue française No. 59, [2002] O.J. No. 1525 (Sup. Ct. Jus.):

The implementation of the new cost grid, effective January 1, 2002, does not override the court’s discretion with respect to an award of costs under s. 132 [sic] of the Courts of Justice Act. This is clear, in my view, when subsection 131(1) and subrule 57.01(1) and amended subrule 57.01(3) are read together.

10The case of 80 Wellesley St. East Ltd. v. Fundy Bay Builders, [1972] 2 O.R. 280 (C.A.) sets out the general rule with respect to the inherent jurisdiction of the Superior Court. A judge possesses all the powers necessary to do justice between the parties except where provided specifically to the contrary.

11Turning to the new cost provisions, rule 57.01(3) requires a court to fix costs except in exceptional cases. The fixing of costs according to the Ontario Court of Appeal in Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 is “something akin to an assessment, with the judge reviewing the factors an Assessment Office would review.” Rule 57.03 also provides that the court shall fix the costs of a motion and order them to be paid within 30 days.

12Since the new costs grid has come into force a number of cases have sought to set out the proper approach to follow.

13I adopt the reason of Nordheimer J. in Basdeo v. University Health Network, [2002] O.J. No. 597 (S.C.J.) and Blair J. in Upper Canada District School, supra. Those principles were succinctly set out by Kozak J. in Audziss v. Santa (26 November 2003), Thunder Bay 01/0456 (Sup. Ct. Jus.) at paragraph 11 as follows:

• A party is entitled to its costs of preparing for a motion, trial or appeal based upon the time spent at the hourly rates which the court permits in accordance with the ranges set out in Item 1 of the Costs Grid.

• In addition to the amount which the court fixes for the time spent prior to the actual hearing, a counsel fee is to be fixed in accordance with the range of counsel fees provided for in Item 2 of the Costs Grid for the actual hearing of the motion or application. The counsel fee is presumably to be set within the range taking into account not only the amount of time spent on the actual hearing but also the importance and complexity of the matters argued along with the other factors set out in Rule 57.01(1). It should also be set taking into account whether there was one counsel on the matter or two or more counsel, with the necessary determination of the reasonableness of having more than one counsel in attendance for the hearing of the issues involved.

• A similar approach would appear to be dictated for the fixing of costs of trials and appeals except that Item 3 of the Costs Grid provides different counsel fees for trial days and Item 4 provides yet another range of counsel fees for appeals.

14When deciding whether or not to award costs, Rule 58.06(1) directs the court to consider a number of factors. Some of the relevant factors to consider in this case are:

• complexity – the issues in this case were not complex nor unusual.

• court time – the motion took most of one day

• conduct of the parties - the conduct of the parties on this motion was unremarkable although there is reference in the order of Pierce J. to the improper conduct of Mr. MacAlpine on the motion to strike his statement of claim.

15Having reviewed the principles set out above I find that the Defendants are entitled to their costs on a partial indemnity basis and that there are no compelling reasons to order costs on a substantial indemnity basis.

16Turning now to the bills of costs that have been submitted the following awards are made.

The Attorney General of Ontario

17I accept the suggested counsel fee of counsel: Daniel Guttman-$150.00 per hour and Chantal Brochu-$125.00 per hour based upon their four and three years at the bar respectively.

18I also accept the description of the numbers of hours worked by both counsel and the disbursements listed at $18.77

19An order shall issue requiring the Appellant to pay costs fixed at $3,830.65 including G.S.T. to the defendant, The Attorney General of Ontario.

The “Bell Defendants”

20The “Bell Defendants” only seek their disbursements of $1,559.44 and nothing for counsel fee.

21An order shall issue requiring the Appellant to pay costs fixed at $1,559.44 to Bell Canada, Bell Mobility Inc. and BCE Inc.

The Certified General Accountants of Ontario

22Having reviewed the bill of costs submitted by this Defendant I find that an appropriate counsel for Ms. Jolley with 14 years of experience is $225.00 per hour. Further, I find that reasonable disbursements total $1,622.62 including G.S.T.

23An order shall issue requiring the Appellant to pay the sum of $5,000.00 for counsel fee, (taking into account the contribution made by the remaining co-defendants) plus disbursements of $1,622.62, making a total of $6,622.62.

The Bank of Nova Scotia, TD Bank and Royal Bank of Canada:

24Mr. Weiss acted as senior counsel for these Defendants utilizing the services of Onofrio Ferlisi as his associate. A factum was prepared and filed by the Defendants although they employed the services of Ms. Jolley who appeared on the motion on their behalf. Costs for receipt of and review of the Appellant’s motion for leave as well as for the preparation of a factum are appropriate. An order shall issue requiring the Appellant to pay the following costs and disbursements to this Defendant:

(1) counsel fee for Mr. Weiss and Mr. Ferlisi $1,000.00

(2) agent’s fee 2,977.00

(3) other disbursements including G.S.T. 168.37

Total $4,145.37

Patrick Smith