Hassaram v. Ontario (Human Rights Commission), 2005 CanLII 5348 (ON SCDC)

1Dr. Hassaram applied for judicial review of the Ontario Human Rights Commission's decision not to deal with her complaint alleging discrimination by her former employer. In written reasons dated January 7, 2005, this court dismissed the application and ordered that, if the parties were unable to resolve the question of costs, they should file written submissions according to a timetable. We have now received and considered those submissions and provide our decision on costs.

POSITIONS OF THE PARTIES:

2The respondent Commission takes the position that costs should follow the cause and that since there was insufficient merit to the application, costs should be awarded in favour of the Commission. The Commission also argues that the applicant made the proceeding unnecessarily complicated. The Commission submits that the court should fix costs in its favour in the amount of $8,000 inclusive of disbursements for its response to the application for judicial review.

3The respondent Hospital and Dr. Sugar take the position that costs should be ordered in their favour on a partial indemnity scale in the amount of $7,500. They argue that this court should consider the result obtained, that there are no special circumstances to make an award of costs inappropriate, that the applicant made the proceeding unnecessarily complex and the respondent Hospital has been put to great expense.

4Dr. Hassaram takes the position that a costs award against her would impose a significant burden, that she had a legitimate argument that was not frivolous or vexatious, and that the court should exercise its discretion and make no order as to costs.

THE LAW:

5The jurisdiction of this court to deal with costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, C.43 which provides:

Subject to the provisions of an Act or rules of court, the costs of an 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.

Rule 57.01(1) of Rules of Civil Procedure sets out the factors which the court may consider in exercising its discretion.

6On January 2, 2002, a new costs regime came into effect in Ontario, pursuant to O. Reg. 284/01 which amended, inter alia, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Tariff A establishes a "costs grid" for costs on two scales: partial indemnity (replacing the former party and party scale) and substantial indemnity (replacing the former solicitor and client scale): see Delrina Corp. v. Triolet Systems Inc. (2002) 22 C.P.C. (4th) 332 (C.A.) However, the costs grid was not intended to involve a mechanical exercise of multiplying hours by rates. Rather the objective is to fix costs in an amount that is "fair and reasonable for the unsuccessful party to pay in a particular proceeding": Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.); Zesta Engineering v. Cloutier 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.). In the case of Moon v. Sher et al, a decision of the Ontario Court of Appeal released on November 16, 2004, Borins J.A. followed the approach taken in Boucher and Zesta Engineering that fairness and reasonableness are the fundamental concepts that govern in the fixing or assessing of costs. Again, in the decision of Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, a decision released on January 24, 2005, the Ontario Court of Appeal emphasized the "overriding principle of reasonableness" in reducing the award of costs.

RESULT:

7We are satisfied that procedural and substantive justice would be achieved by fixing costs in this case: see Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.). We note that the respondents have submitted their bills of costs, which set out all attendances and hourly rates but have asked the court to award reduced amounts which they agree are fair and reasonable in the circumstances. Having considered the factors in Rule 57.01, including the result obtained, the conduct of the parties, the nature of the services performed, the complexity of the proceeding and the importance of the issues, we exercise our discretion in accordance with section 131 of the Courts of Justice Act and make an order fixing costs in favour of the respondent Commission in the amount of $3,500 and in favour of the respondent Hospital and Dr. Sugar together in the amount of $3,500. These awards are inclusive of disbursements and GST and are payable within six months by Dr. Hassaram.