Court File and Parties

COURT FILE NO.: 525/07 DATE: 20080310

SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

RE: LAFONTAINE-RISH MEDICAL GROUP LIMITED, MEDICAL GROUP RESEARCH ASSOCIATES LIMITED, LAFONTAINE-RISH MEDICAL ASSOCIATES, SONIA LAFONTAINE AND ARTHUR FROOM, Plaintiffs/Appellants - and - GLOBAL TV NEWS INC., PETER VINER, JAMES SWARD, ROBERT DAVIDSON, PETER KENT, MARLEEN TROTTER, GREGORY DENNIS, PAUL ROGERS, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, JERRY LEVITAN, THOMAS BELL, M.D., TRACY HYNES, RAQUEL NAVARRO, RALPH NAVARRO and OLGA NAVARRO, Defendants/Respondents

BEFORE: Mr. Justice Carnwath

COUNSEL: Robert Zigler, for the appellants, Lafontaine-Rish Medical Group Limited & Arthur Froom Bruce Thomas, for the respondents, Global TV News Inc., Peter Viner, James Sward, Robert Davidson, Peter Kent, Marleen Trotter, Gregory Dennis and Paul Rogers Marcela Saitua, for the respondent, College of Physicians and Surgeons of Ontario Lorne Honickman, for the respondent, Jerry Levitan Roy Stephenson & Trevor Shaw, for the respondent, Thomas Bell, M.D.

COSTS ENDORSEMENT

CARNWATH J.:

[1] The appellants' action against the respondents was dismissed for delay by Master Hawkins on March 23, 2007.

[2] The appellants then moved to set aside or vary the Master's decision in the wrong court. By order, dated October 24, 2007, Pattillo J. ordered the matter transferred to the Divisional Court as an appeal from a Master's order, pursuant to s. 19(1)(c) of the Courts of Justice Act. The costs of that motion were reserved to the disposing judge.

[3] When the appeal came on before me, the appellants moved to lead fresh evidence. I dismissed the motion as it related to the appellants' intended use of the evidence. I then dismissed the appeal.

[4] Costs submissions have been received whereby the respondents seek costs for the motion before Pattillo J., a motion before Kiteley J. and the costs for the appeal as follows:

	PARTIAL INDEMNITY	SUBSTANTIAL INDEMNITY
Global Defendants	$67,568.55	$101,352.83
Thomas Bell, M.D.	$22,180.78	$32,820.76
Jerry Levitan	$13,481.08	$20,044.27
College of Physicians & Surgeons	$8,295.88	$12,038.88

[5] The appellants submit that the Global defendants should receive $15,000 and the other respondents $2,500 each.

[6] It is perhaps not surprising that the disparity in the submissions is so great. Mr. Froom's conduct in this matter renders his counsel's submissions on costs of no value.

[7] In the exercise of my discretion, I decline to assess Dr. Bell's costs of the action. Further, in the exercise of my discretion, I propose to fix costs on a partial indemnity scale.

[8] The fixing of costs does not begin or end with the calculation of hours times rate. The overall objective is to fix an amount that is fair and reasonable, having regard to the broad range of factors in Rule 57.01(3), for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, (C.A.))

[9] I find the proposed partial indemnity costs of the respondents to be far beyond what results from the application of the principles in Boucher.

[10] The respondents shall have their costs, payable by the plaintiffs, on a partial indemnity basis payable in thirty days, as follows:

(a) The Global defendants shall have fees of $30,000, inclusive of GST, and disbursements of $5,928.42, inclusive of GST, for a total award of $35,928.42;

(b) Dr. Bell shall have fees of $10,000, inclusive of GST, and disbursements of $900.81, inclusive of GST, for a total award of $10,900.81;

(c) Jerry Levitan shall have fees of $7,500, inclusive of GST, and disbursements of $762.92, inclusive of GST, for a total award of $8,262.92; and,

(d) The College of Physicians and Surgeons shall have fees of $4,000, inclusive of GST, and disbursements of $759.88, inclusive of GST, for a total award of $4,759.88.

CARNWATH J. DATE: 20080310