CITATION: Groia v. The Law Society of Upper Canada 2015 ONSC 1680
DIVISIONAL COURT FILE NO.: 288/13
DATE: 20150316
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JOSEPH PETER PAUL GROIA v. THE LAW SOCIETY OF UPPER CANADA
BEFORE: SACHS, NORDHEMER & HARVISON YOUNG JJ.
COUNSEL: E. A. Cherniak, Q.C. & J. Akbarali, for the appellant J. T. Curry & J. E. Lilles, for the respondent
HEARD: Written submissions
ENDORSEMENT – COSTS
[1] On February 2, 2015, this court released its decision dismissing Mr. Groia’s appeal from a decision of the Law Society Appeal Panel. A cross-appeal by the Law Society was also dismissed. We invited written submissions on what the disposition should be of the costs of the appeal and cross-appeal. We have now received and reviewed those submissions.
[2] The Law Society submits that it should receive costs of the appeal in the amount of $50,000. It bases this amount on a total bill of costs of $67,130.49[^1] but reduced by approximately one-third to reflect its lack of success on the cross-appeal. Mr. Groia submits that there should be no award of costs on either the appeal or the cross-appeal or, alternatively, the Law Society should receive costs of the appeal not to exceed $20,000 and that Mr. Groia should receive costs of the cross-appeal in the amount of 23,950.04 that would almost achieve the same net result.
[3] In support of his submission that there should be no award of costs, Mr. Groia says that this proceeding involved matters of public interest and also raised novel issues. We accept that there was a measure of public interest (or at least the interest of the legal profession) engaged by the appeal and that it raised matters that have not previously been considered by this court. That, by itself, does not dictate that costs are not to be awarded, however. As Spence J. said in Baldwin v. Daubney, [2006] O.J. No. 3919 (S.C.J.) at para. 31:
With this view of judicial discretion in mind, it is appropriate to regard the “novel issue” factor in respect of a costs award not as a rule requiring rejection of a costs award, but rather as a consideration to be taken into account in determining whether there should be a costs award and if so, in what amount.
[4] Similarly, there is no rule that the first case to raise a particular issue should not attract a costs award. Someone always has to be first and there is always a public benefit to having a court clarify any legal issue. That reality does not mean, though, that no costs should be awarded in all such cases. As Smith J. said in Sierra Club of Western Canada v. British Columbia (Chief Forester), [1994] B.C.J. No. 1713 (S.C.) at para. 25:
I think there is a public benefit any time a court decision clarifies the law, but I do not think there is a general rule that no costs should be awarded in all such cases.
[5] The fact is that Mr. Groia appealed the finding of professional misconduct and he lost. The principles or tests to be applied in such situations may have been developed or refined by the decision of this court but that fact does not distinguish this appeal from any number of other appeals that raise important legal issues. Mr. Groia was unsuccessful in the result and we do not see any compelling reason why he should not bear the costs of his lack of success.
[6] At the same time, we recognize that the Law Society cross-appealed and it was equally unsuccessful in that effort. Rather than assess the costs of the appeal and the cross-appeal separately, and then net out the difference, we are of the view that the Law Society’s lack of success on the cross-appeal should be reflected in a reduction of the costs award that the Law Society would otherwise receive for its success on the main appeal.
[7] In approaching the task of fixing costs, we are cognizant of the general principles applicable to that task. In particular, we are aware that costs should be fixed in an amount that is fair and reasonable – see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). In that regard, we are cognizant of the general level of costs awards made by this court for similar matters in terms of their complexity and length of hearing.
[8] The appeal and cross-appeal took a total of two full days. The appeal consumed at least two-thirds or more of that time. The issues on the cross-appeal were the focus of the submissions of the interveners. Mr. Groia benefitted from the presence and participation of the interveners in terms, among others, of the time that he had to devote to the cross-appeal.
[9] In the end result, we consider the amount sought by the Law Society for the costs of the total proceeding to be somewhat higher than we would assess those costs at but not excessively so. We agree that a reduction of approximately one-third is an appropriate reduction for the unsuccessful cross-appeal.
[10] With those considerations in mind, we award the costs of the appeal to the Law Society fixed in the amount of $30,000, inclusive of disbursements and HST, to be paid by Mr. Groia within thirty days.
SACHS J.
NORDHEIMER J.
HARVISON YOUNG J.
DATE: March 16, 2015
[^1]: In its reply submissions, the Law Society adjusted its claim for disbursements down to $7,000 plus HST which would have the effect of reducing the total bill of costs to $58,740. If a one-third reduction is applied to that amount, the result would be $39,160.