Court File and Parties

CITATION: Shoppers Drug Mart Inc. v. Ontario, 2011 ONSC 2323 COURT FILE NO.: 332/10 and 334/10 DATE: 20110429 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: SHOPPERS DRUG MART INC et al., Applicants AND: MINISTER OF HEALTH AND LONG-TERM CARE and LIEUTENANT GOVERNOR IN COUNCIL OF ONTARIO, Respondents

AND RE: KATZ GROUP CANADA INC. et al., Applicants AND: MINISTER OF HEALTH AND LONG-TERM CARE and LIEUTENANT GOVERNOR IN COUNCIL OF ONTARIO, Respondents

BEFORE: WHALEN, MOLLOY, and SWINTON, JJ.

COUNSEL: Mahmud Jamal and Craig Lockwood, for the Applicant Shoppers Drug Mart Inc. M. Paul Michell, for the Applicant Katz Group Canada Inc. Kim Twohig and Lise Favreau, for the Respondents

HEARD: In writing, in Toronto

ENDORSEMENT as to COSTS

[1] The applicants were wholly successful in these judicial review applications, as set out in our Reasons dated February 3, 2011. Accordingly, they are entitled to their costs.

[2] The Shoppers Drug Mart applicants claim costs in the total amount of $114, 479.05. Of that amount, $1,101.85 is for disbursements, plus $98.01 for taxes on those disbursements. There is no problem with those disbursements, and they are allowed in full.

[3] The Katz Group applicants claim costs in the total amount of $71,358.33. Of that, the total claim for disbursements is $2,106.23 (inclusive of tax). Again, there is no difficulty with the disbursements and they are allowed in full.

[4] Shoppers Drug Mart’s claim for fees is for a total amount of $104,354.00, not including tax, which represents a combined total of 403 hours worked by a four-person team of lawyers.

[5] The fees claimed by the solicitors for Katz Group (exclusive of tax) are $61,240.00, which represents just under 200 hours for the two lawyers who worked on the case.

[6] The respondents do not take issue with the hourly rates charged for any of the lawyers, nor do they challenge that the hours claimed were actually worked. However, the respondents submit that an appropriate assessment of costs is not a simple matter of arithmetic in which the number of hours worked is multiplied by the hourly rate. The respondents submit that the amounts claimed are simply excessive in light of awards made in other judicial review proceedings and the duplication between the two proceedings before the court.

[7] We agree that the assessment of costs is not an exercise in arithmetic. However, we do not agree that any reduction is required due to the overlap or duplication between the two proceedings. On the contrary, it was necessary to have both applications, and efficient to hear them together. In our view counsel did an admirable job in representing the interests of each of their clients while keeping time and costs down by working cooperatively in the production of materials and presentation of argument.

[8] We recognize that the costs claimed are higher than one typically sees in the Divisional Court. However, this was not a “typical” case. This was not an appeal or judicial review application that was preceded by another hearing of some nature, usually before an administrative tribunal. It was a case of first instance, and in that sense is more akin to an application for a determination of a point of law under Rule 14 or Rule 21, or a summary judgment motion under Rule 20. Costs awards in other judicial review proceedings must be considered with some care, and are often not comparable based solely on the length of time they took to argue.

[9] We agree with the applicants that this was a complex proceeding of considerable importance to all of the parties involved. It was a case in which it was appropriate to have multiple counsel involved, including counsel who did not appear in court but who contributed their expertise in the regulatory matters at issue. We also note that although the respondents asserted that the hours spent by the applicants’ counsel were excessive, they did not produce any details of the time spent by their own counsel. In those circumstances, it is an appropriate inference that the respondents’ counsel spent a comparable amount of time on the matter, such that the costs now claimed by the applicants must have been within their reasonable contemplation: Frazer v. Haukioja, 2010 ONCA 249.

[10] That said, the total hours spent by the Shoppers Drug Mart team seems excessive in all the circumstances. Further, we are concerned that there has been some duplication as a result of the number of lawyers involved. We are therefore reducing the allowable fees for the Shoppers applicant to $80,000 plus applicable GST/PST (rather than $104,000).

[11] We have no difficulty with the fees claimed by the solicitors for the Katz applicants. Those are allowed in full at $69,252.10 inclusive of GST/HST.

WHALEN J.

MOLLOY J.

SWINTON J.

Date: April , 2011