COURT FILE NO.: 544/03
DATE: 20050207
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Russell Bajurny, Appellant
-and-
The College of Denturists of Ontario, Respondent
BEFORE: Lane, Matlow and Ground JJ.
COUNSEL: Heather C. Devine, for the Appellant
Richard Steinecke, for the Respondent
E N D O R S E M E N T
1Mr. Bajurny appealed from a decision of the College to discipline him. He raised twelve grounds of appeal and succeeded on one. We directed a new hearing on the sanction imposed because it appeared from the reasons that the Committee had not correctly understood certain facts relative to the timing of the taking of remedial courses.
2Both parties have declared victory, the appellant because he obtained a new hearing on sanction and the respondent because it was successful on eleven of the twelve points raised, including five allegations of professional misconduct. Both believing themselves victorious, both ask for costs.1
3It would not be accurate to suggest that success was evenly divided. The appellant failed to upset the basic findings against him. His real degree of success is as yet unknown, for the outcome of the new hearing on sanction is unknown. Given the findings of professional misconduct, it seems unlikely that there will be no sanction and nothing in our decision requires the College to do more than reconsider the earlier sanction.
4In our view, the College should have its costs on a partial indemnity basis, reduced by the impact of the limited success of the appellant. The respondent filed a Bill of Costs totalling $22,535.96 on a partial indemnity basis. Counsel’s hourly rate was set at $275 for this matter and a submission was made that, with twenty years of experience at the bar and a specialist practice, counsel should command a rate at or near the maximum of $350. Hence $275 was in recognition of partial success. This submission overlooks the principle that the maximum rate is reserved for the most experienced counsel engaged in the maximum case. This is not such a case.
5Bearing in mind these considerations, and applying the principle that the award should reflect the court’s view as to what is fair and reasonable for the opposite party to pay in all the circumstances, we fix the costs of the College at $9,000 inclusive of disbursements and GST, payable within thirty days.
Lane J.
Matlow J.
Ground J.
DATE: February 4, 2005