Yuan et al. v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 1229

CITATION: Yuan et al. v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 1229

DIVISIONAL COURT FILE NO.: 343/13

DATE: 20140228

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Dr. James X.N. Yuan, Dr. Jia Li, Andre Rekai, Rui Fen Yao, Tong Liu and the Federation of Ontario Traditional Chinese Medicine Association, Applicants

AND:

Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and Minister of Health and Long-Term Care of Ontario, Respondents

BEFORE: Whalen, Lederman and Kiteley JJ.

COUNSEL: Rocco Galati, for the Applicants

Rebecca C. Durcan and Marc H. Spector, for the Respondent, Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

S. Zachary Green, for the Respondent, Minister of Health and Long-Term Care of Ontario

HEARD: in writing

COSTS ENDORSEMENT

[1] Following release of the endorsement dismissing the judicial review application[^1] we received written submissions from all counsel. Counsel for the Transitional Council asked for substantial indemnity costs in the amount of $125,297.56 or partial indemnity costs in the amount of $78,113.45. Each of those include disbursements in the amount of $5,224.44 most of which were payments on account of cross-examinations and copying and binding services. Counsel for the MHLTCO took the position that the Applicants should pay costs in the amount of $15,000 inclusive of disbursements.

[2] The applicants submit that this is either a case where each party should bear its own costs or alternatively, that the applicants should be awarded costs, even though unsuccessful, as the application was in the nature of public interest litigation. Mr. Galati did not provide a bill of costs nor did he request an amount. If costs are awarded to the respondents, he took the position that the amount sought by the MHLTCO was reasonable. He also asserted that the amount sought by the College was excessive and if costs were awarded to the College, it should be slightly less than the costs requested by the Ministry.

[3] We do not agree that this was public interest litigation as an important motivation for the judicial review application was the protection of the practitioner applicants’ commercial interests. We see no reason to depart from the principle that the successful respondents are entitled to recover their costs.

[4] Mr. Galati takes no issue with the amount of $15,000 all inclusive, sought by the respondent Minister which we agree is appropriate.

[5] The amounts claimed by the Transitional College on either a substantial indemnity scale or a partial indemnity scale are excessive and are not proportional to the costs of the other respondent. Nor are they proportional to what an unsuccessful party could reasonably expect to pay in relation to such proceedings.

[6] The factors that are relevant to the amount of costs payable are these. The Transitional College was responsible for assembling a substantial record that included cross-examinations. Some of that evidence and submissions in the factum were related to the position taken by the applicants that the respondent Transitional College had failed to consult them and others. The Transitional College carried the evidentiary burden in responding to that submission which was withdrawn just days before the hearing and after all of the extensive evidence and facta had been filed. In addition, as indicated in footnote 1 of the endorsement, the applicants withdrew other claims for relief. The Transitional College was justified in providing a comprehensive response to all of the claims asserted in the Notice of Application and in the factum. The cross-examinations were justified.

[7] To recognize the difference in effort by each respondent, we consider it fair to award the Transitional College double the amount of the costs awarded to the Minister, namely $30,000 all inclusive.

[8] In his submissions, Mr. Galati asked that if the applicants were directed to pay costs, that the patient applicants (Mr. Yao and Ms. Liu) should not be subject to that order. As far as the responsibility for these costs are concerned, we would make no distinction between the practitioner applicants and the patient applicants. They all brought this application together and the responsibility for the costs should be joint and several. It will be up to the other applicants to take steps to shield the patient applicants from the consequences of this order, should they choose to do so.

ORDER TO GO AS FOLLOWS:

[9] The applicants shall pay costs to the respondent Transitional Council in the sum of $30,000, all inclusive, and to the respondent MHLTCO in the sum of $15,000, all inclusive.

Whalen J.

Lederman J.

Kiteley J.

Date: February 28, 2014

[^1]: 2014 ONSC 351