COURT FILE NO.: 525/07
DATE: 20071211
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Lafontaine-Rish Medical Group Limited, Arthur Froom et al. Plaintiffs/Appellants
-and-
Global TV News Inc. et al. Defendants/Respondents
HEARD: December 6, 2007;
BEFORE: Lane, J.
COUNSEL: Robert Zigler, for the Plaintiffs/Appellants;
Arthur Froom, in person;
Catherine Clark, for the Global defendants.
E N D O R S E M E N T
[1] The Global defendants brought a motion for security for the costs of this appeal, but abandoned it shortly before it was to be heard. This is a motion regarding the disposition of the costs of that motion. There is also a motion to require the attendance of the solicitor for the plaintiff to be examined. An agreement has been reached and that motion is adjourned on consent to be brought on if the agreement is not performed.
[2] The action is for defamation arising from a news broadcast by Global on its network on July 18, 1998, referring to the plaintiffs and the plastic surgery clinics which they operated in New York City and in Toronto. The action has been dismissed for delay by Master Hawkins and the appeal is from that order.
[3] Rule 37.09(3) provides that when a motion is abandoned, the respondent is entitled to the costs of the motion forthwith unless the court orders otherwise. The defendant contended that I should make an “order otherwise” because the plaintiff Froom was not forthcoming about his assets in Ontario and was being held for extradition from Canada to face charges in the United States arising from the operations described in the broadcast. Hence his status as a resident of Ontario was likely to be short-lived. Counsel explained that the defendant had little information about Mr. Froom or the corporations despite credit bureau searches and other efforts and had doubts if the latter were even still active. Hence the motion was brought. When the responding material was filed it became apparent that Mr. Froom did have assets in Ontario and so it was decided not to proceed with the motion for security for costs. Counsel submitted that the costs should be reserved to the judge hearing the appeal, but in my view the motion is a discrete event and I should decide the issue.
[4] Mr. Froom explained that he had been incarcerated for a period due to the extradition proceedings which could account for any difficulty in locating him. Nevertheless, he had assets and drew attention to the absence of any prior request for such information and to a Court of Appeal judgment which made it clear that he had at least some ownership interest in certain condominiums. I am not satisfied that Mr. Froom brought the motion on himself by attempts to conceal his assets. In the absence of any request to do so, he cannot be faulted for not volunteering disclosure. I think that the costs of the motion should follow the event and be awarded to the plaintiffs.
[5] Both Mr. Zigler and Mr. Froom have put in Bills of Costs and have asserted that there is no overlap between the two as they had divided up the work. Mr. Zigler spent some time with Mr. Froom coaching him on how to conduct a cross-examination which Mr. Froom then conducted on his own. Mr. Zigler suggested that the result was a saving in expense, but I observe that Mr. Froom sets his partial indemnity rate at $350 versus Mr. Zigler’s $275. Mr. Zigler was called in 1985 and his total partial indemnity claim for fees is $6875 based on 25 hours. Mr. Froom is not a lawyer but asserts that he has some 20 years of experience in personal litigation and that he has been able to attract fees of up to $1200 per hour from persons in litigation whom he has assisted with his experience. He set his rate at $500 per hour, reduced to $375 for a partial indemnity claim. His total fees claim is $7945, representing 22.45 hours.
[6] Thus the total costs claim by the plaintiffs for fees is $14,520 for 47.45 hours. In my view the amount is excessive for a number of reasons. The number of hours is high for such a motion. Ms. Clark pointed out that part of the cross-examination had to do with a different motion, one for fresh evidence, and that there cannot help but be some overlap between the two persons doing essentially the same task. I agree that overlap is highly probable. The case was not so complex that it required two persons, nor is it obvious that there was any saving in involving Mr. Froom, considering the value he attributes to his time. That value is much overstated; his 20 years of experience as a lay litigant does not make him a qualified lawyer and I will not award fees as if he was. He is, as a lay litigant, entitled to reasonable fees for performing work for which he would otherwise have had to pay a lawyer, but not at lawyers’ rates.
[7] Finally, I ask the question: At the end of the day, what is the total for fees and disbursements that would be a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[^1] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award.
[8] In my opinion, an appropriate figure is $8,000 in total for fees. Since the costs belong to the client in any event, the fairest way to determine the apportionment is to leave it to Mr. Zigler and Mr. Froom to work out. To the fees must be added the disbursements as claimed (no objection having been made to them), and the GST. These amounts may be paid by offset against any outstanding costs orders owed by the plaintiffs. In the circumstances there will be no costs of this hearing.
Lane, J.
DATE: December 11, 2007
[^1]: See Murano v. Bank of Montreal (1998) 1998 5633 (ON CA), 41 O.R. (3rd) 222, at page 247; Zesta Engineering Ltd. v. Cloutier, Ont. C.A. Nov. 27, 2002; Boucher v Public Accountants Council (Ontario) (2004) 71 0.R. (3rd) 291 (C.A.)