COURT FILE NO.: 665/04
DATE: 20050127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, kiteley and benotto jj.
B E T W E E N:
STEVEN HANLEY
Applicant
- and -
DR. DAVID EDEN, CORONER
Respondent
T.S.B. Danson, for the Applicant
J. Olah for Craigleith Ski Club
P.J. Pliszka for Bombardier Recreational Products
K.G. Crompton for the Ontario Snow Resorts Association
C. O’Donnell for the Respondent, Dr. Eden
W. Teggart for the family of the late Moira Caswell
HEARD AT TORONTO: January 11, 2005
ENDORSEMENT AS TO COSTS
THE COURT:
[1] On January 7, 2005, this application for a judicial review was dismissed with reasons to be delivered on January 11, 2005 at 9:30 a.m. At that time, written reasons were given to counsel. Thereafter, we heard submissions as to costs.
[2] Counsel for the Attorney General of Ontario (AG (Ont.)), representing the Coroner, filed a Bill of Costs claiming costs in the sum of $20,968.94. That total is made up of preparation of 90.1 hours at $190.00 per hour (substantial indemnity rate), $3,000 for the attendance of Ms. O'Donnell and Mr. D. Carruthers on January 7, 2005, $500 (3 hours) for preparation of the Bill of Costs and $279.94 (including PST paid) for photocopies. The Ontario Crown does not collect G.S.T.
[3] Of the counsel appearing before us on the judicial review, Ms. O'Donnell was the only counsel who had not appeared before the Coroner on December 3, 2004.
[4] Counsel for the Caswell family filed a Bill of Costs claiming $7,215.25 made up of $3,650 for 14.6 hours of preparation at $250 per hour (substantial indemnity), plus $3,000 counsel fee for his court appearance on January 7, 2005 plus $465.50 of G.S.T. calculated on the above amounts. The total sum of $99.95 is claimed for disbursements. Counsel for the Caswell family did not file a factum.
[5] Counsel for the AG (Ont.) submits that costs should be fixed and payable by the Applicant and the Craigleith Ski Club. Counsel for the AG (Ont.) makes no claim for costs against Bombardier and/or Ontario Snow Resorts Association (OSRA).
[6] Counsel for the Applicant submitted that this was not a case for costs, but if costs were to be awarded, those costs should be fixed in the sum of $5,000 payable to the AG (Ont.) and $1,500 to the Caswell family.
[7] Counsel for Craigleith took the position that his client was not an "applicant" and should not be saddled with costs. However, if Craigleith were ordered to pay costs, then Bombardier and OSRA should also be ordered to pay costs. Not surprisingly, counsel for Bombardier and counsel for OSRA resisted the idea of paying costs, especially when neither respondent was seeking costs against either of them.
[8] Our decision set aside Item 3 at page 32 of the Coroner's reasons (Conflict of Interest). In that sense, it might be argued that counsel for Hanley had achieved some success. However, "the principal objective of this judicial review is to quash or adjourn the January 17, 2005 commencement date for the inquest" (Applicant's Factum: paragraph 1). On that issue, the application did not succeed. The adjournment of the January 17, 2005 start date of the inquest was pursued as persistently by Craigleith's counsel as it was by counsel for its employee, Steven Hanley. It will be recalled that Craigleith had issued its own application for judicial review of the decisions made by the Coroner. Counsel for Craigleith and for AG (Ont.) had agreed that the issues raised in Craigleith’s application were the same as those raised in the Hanley application, and consequently, while it was served, it was not pursued. It will also be recalled that some forty-five (45) minutes of court time were consumed on January 7, 2005 with Craigleith's counsel's motion to admit "fresh evidence" on the application for judicial review.
[9] In these unusual circumstances, we see no reason why Craigleith should not bear the same burden as to costs as does Steven Hanley, the Applicant. Moreover, because counsel for Bombardier and counsel for OSRA each filed a factum, attended and made submissions, all in support of the Applicant, it could be submitted that because each party supported the application, although not an "applicant", should be liable for costs. However, because neither the AG (Ont.) nor the Caswell family seek an order for costs against either Bombardier and/or OSRA, we see no need to pursue that line of reasoning.
[10] Without analyzing the detail of the bills of costs, in general we consider the bills to be excessive in terms of the complexity of the case. After considering the material filed and the submissions of all counsel regarding costs, we make the following orders:
(1) costs fixed at $7,500 all inclusive, shall be paid by Steven Hanley and by Craigleith Ski Club to the Respondent Coroner, Dr. David Eden, and
(2) costs fixed at $2,500 shall be paid by Steven Hanley and by Craigleith to the Caswell family, and
(3) the fixed costs set out above, for which Steven Hanley and Craigleith are jointly and severally liable, shall be paid within thirty (30) days of the date of this endorsement.
________________________
O’Driscoll J.
Kiteley J.
Benotto J.
Released:
COURT FILE NO.: 665/04
DATE: 20050127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll, kiteley and benotto jj.
B E T W E E N:
STEVEN HANLEY
Applicant
- and -
DR. DAVID EDEN, CORONER
ENDORSEMENT AS TO COSTS
THE COURT
Released: January 27, 2005