COURT FILE NO.: 75/06
DATE: 20070228
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: T. F., Appellant
-and-
General Manager of the Ontario Health Insurance Plan and
The Chiropractic Review Committee of the College of Chiropractors
of Ontario
HEARD: In writing November 27, December 14, 21, 2006;
BEFORE: Lane, Chapnik and G. P. Smith JJ.
COUNSEL: Joseph J. Colangelo, for the Appellant;
Jeffrey S. Leon, for the Chiropractic Review Committee;
Lise G. Favreau, for the General Manager
E N D O R S E M E N T A S T O C O S T S
[1] On October 30, 2006, we dismissed this appeal as premature without prejudice to the appellant bringing further proceedings with respect to the issues raised after the matter has been dealt with on the merits. The issue on this appeal related to a pre-hearing motion on a procedural matter.
[2] The respondent Chiropractic Review Committee seeks costs of $9163.26 based on 42 hours of preparation and one half day counsel fee, plus disbursements. It opposed the appeal as premature, but acknowledged in its factum at paragraph 42 that the appellant could appeal on the same points after the full hearing had been completed.
[3] The respondent General Manager seeks costs of $4,825 based on 21.5 hours of preparation and a counsel fee of $565. The General Manager did not make the same concession as the Committee did in paragraph 42 of its factum cited above.
[4] The appellant submits that there should be no costs or, alternatively, the parties should include these costs in their Bills of Costs pertaining to the whole matter to be submitted at the end of the proceeding. He also submits that his interests in preserving the issues in the appeal for future determination were only protected by the order that we made specifically doing so, and therefore the appeal was necessary. That really amounts to a submission that the appeal was not premature and we do not accept it for the reasons already given last October. The appellant does make an important point when he submits that, if the respondents believed the appeal to be premature, the cost-effective way of determining that would have been to move at once to dismiss it, before the expense of preparing appeal books and factums had been incurred.
[5] The appellant also compares the time spent by the various counsel on the appeal as follows:
Lawyer/party Call year Hours P.I. Rate
J. Colangelo/App 1978 9 $264/hr.
J. Leon/CRC 1979 10 300/hr
S. Armstrong/CRC 2003 32 150/hr
L. Favreau/OHIP 1996 21.5 225/hr
[6] Based on this comparison, counsel submits that the costs of the respondents cannot be reasonable when the ratios are as great as shown. There is much to be said for this point in a relatively straightforward case such as this one, although the roles of appellants and respondents are not identical and the lowest figure is not always the most reasonable.
[7] Bearing these submissions in mind, we think that there should be a costs award at this time. The appeal is a discrete episode and not so connected to the ultimate result that the costs should await that result. As to the quantum, the question is only partly an arithmetic one derived from hours and rates. To the extent that it is arithmetic, the rates are not unreasonable, although Mr. Leon’s is somewhat high for a partial indemnity costs claim. The hours for the two CRC lawyers seem out of line in total with what would be required for this case. More importantly, however, following the case law, the court asks: 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, which was neither complex nor lengthy?[^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. The reasonable expectations of the paying party are also a factor to be considered. This is not a subjective inquiry, but an objective one. What would the reasonable person in the shoes of the appellant expect might be his or her exposure to costs?
[8] In our view, the sum of $4,000 plus disbursements and GST is in line with the level of awards made in this court in similar cases and is a reasonable award having regard to the arithmetic, the circumstances, the submissions and the expectations based on the court’s practice. The CRC appears to have taken the lead for the respondent parties. It will have its costs fixed at $4,000 plus disbursements as claimed, except for the charge for “stationary” (sic), since stationery is an overhead item. The General Manager will have costs fixed at $3,000 and GST, no disbursements were claimed. Bearing in mind that the respondents are institutions, one of which is demanding repayment of substantial sums by the appellant before the case is decided, the appellant will have six months to pay.
Lane J.
Chapnik J.
G.P. Smith J.
DATE:
[^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, (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3rd) 161 (Ont. C.A.); Boucher v. Public Accountants Council (Ontario), (2004) 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.)