COURT FILE NO.: 614/04

DATE: 2006-04-06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL J., MCCARTNEY R.S.J. AND SWINTON J.

B E T W E E N:

ROGER BARD, MARY CATHERINE BARD, KEVIN BARD AND JASON BARD Applicants

• and -

KENMAR DOORS LTD., AND THE WORKPLACE SAFETY AND INSURANCE BOARD (formerly Workers’ Compensation Board) Respondents

ENDORSEMENT AS TO COSTS

[1] On February 17, 2006, after the unanimous oral reasons of the Court dismissing the judicial review application had been given by Swinton J., counsel were asked for their submissions as to costs. Counsel for the Workplace Safety and Insurance Board (WSIB), Mr. P.E. Chisholm, handed up a draft bill of costs showing fees of $15,862.50 and disbursements of $4,076.66 for a total of $19,939.16. Mr. Chisholm said that he would be content with 60% of the fees claimed plus disbursements: $15,862.50 x 60% = $9,517.50 plus $4,076.66 for a total of $13,594.16. The other counsel asked that costs be reserved to await either agreement by counsel, or, failing agreement, written submissions. The Court’s further oral reasons reserved costs to await one or the other result. Agreement was not reached, submissions have been filed and it is our task to fix costs.

[2] In his letter of March 9, 2006, in response to the draft Bill of Costs submitted by counsel for WSIB, counsel for the Bards states: “[t]he costs sought by the WSIB counsel in the amount of $13,545.16 [sic], are reasonable costs in the submission of the Bards given that the WSIB should have been the primary respondent in charge of dealing with the application”. We assume that counsel for the Bards intended his letter to say “$13,594.16” and not “$13,545.16”. Accordingly, WSIB’s costs on the judicial review application are fixed at $13,594.16, all inclusive, payable by the Applicants within thirty (30) days of the date of release of this endorsement.

Costs of the February 9, 2006 motion before Jennings J.

[3] In our view, this motion resulted from an “in-house” disagreement between and amongst the Bards, their former solicitor, Mr. C.C. Mark, Q.C. and their present solicitors. Counsel for the Respondents may have had a watching brief for the proceedings of February 9, 2006 but, in our view, the Respondents on this judicial review application were “strangers” to that dispute. We see no reason to award Kenmar costs of $3,771.34, payable by the Bards, because the Bards were having disputes with their solicitors.

[4] There will be no costs of the proceedings before Jennings J.

[5] Moreover, if a costs order had been made regarding February 9, 2006, there is nothing on the record to justify, as claimed by counsel for the Bards, an order under rule 57.07(1)(c) of the Rules of Civil Procedure requiring C.C. Mark, Q.C. “personally to pay the costs of any party”. See: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (1998), 16 C.P.C. (4th) 201 (Gen. Div.) per Granger J.

Kenmar Doors Ltd.’s (Kenmar) claim for costs of $7,276.08 for a motion before Kealey J.

[6] This claim for costs arises out of a motion brought by Kenmar to stay the action. The motion was heard and dismissed by Kealey J. That motion had nothing to do with this judicial review application. This claim is disallowed.

Kenmar’s draft Bill of Costs on the judicial review application

[7] Kenmar’s draft bill claims $22,555.25 for fees plus G.S.T. of $1,578.87 plus disbursements of $3,230.00 plus G.S.T. of $226.10 for a total of $27,590.22.

[8] In his response, counsel for the Bards’ submits:

It is submitted that Kenmar’s request for approximately $27,500.00 in the circumstances is excessive. To bear some relationship to the costs requested by WSIB, it is submitted that an appropriate award of costs to Kenmar should not exceed $5,000.00.

[9] It must be remembered that in all this litigation, WSIB was dominus litis. In all the circumstances the costs of Kenmar on this judicial review application are fixed at $5,000 for fees plus G.S.T. of $350.00 plus disbursements of $3,230.00 plus G.S.T. of $226.10 for a total of $8,806.10.

O’Driscoll J.

McCartney R.S.J.

Swinton J.

Released: