Court File and Parties

COURT FILE NO.: 579/04

DATE: 2005-12-05

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: ROBERT CHARLES WATT, Appellant

A N D:

THE LAW SOCIETY OF UPPER CANADA, Respondent

BEFORE: LANE, JENNINGS and MOLLOY JJ.

COUNSEL: Richard H. Parker, for the Appellant Lisa Freeman, for the Respondent

HEARD: In writing

ENDORSEMENT AS TO COSTS

1The Appellant has been successful and is entitled to his costs. However, there is nothing about this case that would warrant costs on a substantial indemnity basis. The Law Society, although unsuccessful, took a reasonable position and did not unduly lengthen the proceedings. The usual partial indemnity scale is appropriate.

2On a partial indemnity basis, the Appellant claims costs of approximately $16,000 for the appeal from the hearing tribunal to the appeal tribunal and an additional $13,000 for the appeal to the Divisional Court. Ms Freeman, for the Law Society, does not dispute the Appellant’s entitlement to partial indemnity costs at both levels, but submits that the amounts claimed are excessive.

3The costs claimed for the Divisional Court appeal are primarily composed of a fee for approximately 39 hours of counsel’s time. We accept that this time was actually spent and we do not have any significant issue with the hourly rate charged. The appropriate hourly rate and the number of hours spent on an application are among the relevant factors in fixing costs. They are not, however, the only factors. The Court must also be concerned about the overall reasonableness of the costs bearing in mind the legitimate expectation of the parties: Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). In this case, we are of the view that the total amount claimed is excessive. Much of the time spent was devoted to an issue which had no merit and which it was not reasonable to pursue (i.e. whether the question of misappropriation/negligence had been determined by the court in other proceedings). We are also mindful that historically costs in these types of appeals have been on a modest scale. Counsel for The Law Society points out that up to now the highest award for costs in a Divisional Court appeal involving the Law Society has been $5000.00. In all of the circumstances, including the importance of the issues to the appellant and to the public and the reasonable expectation of the losing party, we consider $7500.00 (plus GST) to be an appropriate amount for fees at the Divisional Court level. We have no difficulty with the disbursements, which are allowed as claimed at $1191.54, plus applicable GST.

4The costs claimed for the appeal to the appeal tribunal are based primarily on 44 hours of counsel time. We recognize that more time was required to prepare for the appeal tribunal hearing because counsel needed to review substantial material to learn the factual background. Also, expert evidence was introduced at the appeal tribunal, which required additional time to consider and prepare. Given the issues involved, we do not find the time spent to be unreasonable. However, again because of the “reasonable expectation” factor, the total claimed is on the high side and we would reduce it to $12,000 (plus GST) for fees. The disbursements of $1470.33 inclusive of GST are allowed in full.