Guindon et al. v. Minister of Natural Resources et al.

Court File No. 454/05

Date: 20060525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Guindon et al. v. Minister of Natural Resources et al.

Before: Then, Klowak and Swinton JJ.

Counsel: G. James Fyshe for the Applicants Heather McKay for the Respondent Minister of Natural Resources Richard J. Charney and Jordan D. Winch for the Respondent Domtar Inc. Christopher J. Matthews for the Respondent Tembec Inc.

ENDORSEMENT ON COSTS

[1] The Minister of Natural Resources and Domtar Inc. seek costs of the motion for production and the application for judicial review in the amounts of $22,366.68 and $67,480.14 respectively. Tembec Inc. does not seek costs.

[2] The applicants submitted that no costs should be awarded, given the public interest nature of the litigation, or in the alternative, that the quantum should be significantly reduced.

[3] In this application for judicial review, relief was sought in the nature of an order of mandamus against the Minister. There is no doubt that the issues were of great importance to the communities and workers affected by the mill closures. However, the applicants were not acting solely as public interest litigants, as they had a personal, proprietary and pecuniary interest in the outcome. Therefore, costs should be awarded to the successful parties.

[4] Nevertheless, the costs fixed should be an amount that is fair and reasonable and within the reasonable expectations of the losing party as to the costs likely to be awarded in the proceedings (Allen v. Ontario (Attorney General), [2005] O.J. No. 5634 (Div. Ct.) at paras. 15-16). Moreover, in that case the Court held that given the public interest aspect of the litigation, the amount awarded should not be so high as to create a barrier to litigants who seek to challenge the legality of government action (at para. 12).

[5] In this case, the Ministry seeks $22,366.68, reflecting an amount substantially lower than the actual time spent. They sought $14,000 for preparation, stating that this was less than one third of the actual time spent.

[6] Given the complexity of the statutory framework, the need to prepare for and attend both the motion for production and the application, and having regard to the extensive affidavits filed and the three days of cross-examinations on the affidavits, the Ministry’s request for costs of $20,000.00 plus $2,366.68 for disbursements is reasonable.

[7] Domtar’s bill of costs is substantially larger. While the submissions of Mr. Charney and his material were helpful, as were those of Tembec, the amount claimed is excessive. The Ministry was the primary respondent to this application. Although Tembec and Domtar clearly had significant interests at stake, no relief was claimed against them.

[8] The applicants were faced with three parties responding, each with two counsel, and all taking the same position. In considering what is a fair and reasonable amount that they should be required to pay, we have taken into account the duplication of counsels’ work among the three parties and the primary role of the Minister as respondent. We have determined that costs to Domtar should be fixed at $12,000.

[9] Costs to the Ministry are therefore fixed at $22,368.68 and costs to Domtar are fixed at $12,000 all inclusive.

Then J.

Klowak J.

Swinton J.

Released: May , 2006