COURT FILE NO.: 400/03

DATE: 20060531

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JARVIS and MOLLOY JJ.

B E T W E E N:

ANNE LARCADE and ALEXANDRE LARCADE, a minor, by his Litigation Guardian, Anne Larcade

Appellants (Plaintiffs)

• and -

ONTARIO (MINISTRY OF COMMUNITY AND SOCIAL SERVICES)

Respondent (Defendant)

ENDORSEMENT AS TO COSTS

1After a two (2) day appeal on March 29 and 30, 2005, for written reasons released on May 13, 2005, and now reported: (2006), 2005 16608 (ON SCDC), 77 O.R. (3d) 422, the appeal was allowed, the order of the motions judge, dated June 16, 2003, was set aside and the action was certified under the Class Proceedings Act, S.O. 1992, c. 6.

2On November 21, 2005, the Court of Appeal for Ontario granted leave to the Defendant to appeal to that Court. That appeal is pending.

3Counsel have been unable to agree on costs and following para. [23] of the Court’s reasons, have filed written submissions.

4Counsel for the Appellants have submitted a bill of costs in the sum of $186,293.81, all-inclusive, for their costs on the appeal. It is said to be on a “partial indemnity basis”. The substantial indemnity figure is shown as $251,646.90.

5In exercising our discretion in fixing costs under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and Rule 57.01(1) of the Rules of Civil Procedure, the Court of Appeal for Ontario has stated in Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634, para. [37], that the overriding principle is fairness and “reasonableness”. What were the reasonable expectations of the parties as to costs?

6It has been held that the court should strive for a range that is consistent with awards in similar actions.

7In Gariepy v. Shell Oil Co., [2005] O.J. No. 505, the Divisional Court awarded $15,000 for a one (1) day appeal.

8In Pearson v. Inco Ltd., [2004] O.J. No. 3074, the Divisional Court fixed costs at $60,149.00 for a three (3) day appeal.

9In Cloud v. Canada (A.G.), [2005] O.J. No. 733. The plaintiffs were successful in the Court of Appeal and were awarded $60,000, all-inclusive, fixed costs for the Divisional Court appeal.

10In Chadha v. Bayer Inc., [2003] O.J. No. 1162 (Ont. C.A.), the Divisional Court set aside the certification of the action as a class action. The plaintiff appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and awarded the defendant/respondent costs at $50,000. The sum of $90,000 had been requested.

11In the “Cost Submissions of the Respondent/Defendant”, it is stated:

It is respectfully submitted that the appropriate range for an award of costs in this appeal is $30,000.00 to $60,000.00 and that the award should be closer to the low end of this range.

12The Respondent/Defendant does not quarrel with the disbursements claimed.

13In our view, all things considered, the costs of the Appellants/Plaintiffs for their successful appeal to the Divisional Court are fixed at $60,000, plus disbursements as claimed, plus G.S.T., where applicable.

14As set out above, an appeal is pending before the Court of Appeal. If the Plaintiffs are successful in the Court of Appeal, the fixed costs are payable within thirty (30) days of the date of the judgment of the Court of Appeal.