Brown v. Attorney General (Canada), 2015 ONSC 717

CITATION: Brown v. Attorney General (Canada), 2015 ONSC 717

DIVISIONAL COURT FILE NO.: 523/13

COURT FILE NO.: CV-09-372025-00CP

DATE: 20150205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MARCIA BROWN and ROBERT COMMANDA, Plaintiffs (Respondents)

AND: THE ATTORNEY GENERAL OF CANADA, Defendant (Appellant)

BEFORE: Sachs, Nordheimer and Pomerance JJ.

COUNSEL: Jeffrey Wilson, Jessica Gagné & Morris Cooper, for the Plaintiffs/Respondents

Owen Young, Paul Evraire, Q.C. & Michael Bader, Q.C., for the Defendants/Appellants

HEARD at Toronto: in writing

COSTS ENDORSEMENT

1This panel dismissed an appeal by the Defendant from the certification order of Belobaba J. These are our reasons as to costs.

2The Plaintiffs, as the successful parties on the appeal, seek their costs of the motion for leave to appeal and the appeal itself on a substantial indemnity basis. They do so on the basis that the action is one that is brought by a seriously-disadvantaged group and that the Defendant’s conduct in pursuing the appeal is part of a litigation strategy to obfuscate and delay the proceedings. We see no merit to this submission nor do we see any other basis that would justify an award of substantial indemnity costs. Ordinarily substantial indemnity costs are only awarded where r. 49.10 applies or there is a clear finding of reprehensible conduct on the part of the party against which the costs award is being made: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R.(3d) 66 (C.A.) at para. 40. Neither of those situations is present in this case.

3On a partial indemnity basis, the Plaintiffs have requested a total amount of $61,657.49, inclusive of fees and disbursements. The Defendant also submitted a costs outline, which showed that their partial indemnity costs for the same work totaled $34,416.93, all inclusive. In our view, this amount is much closer to a fair and reasonable amount for two half day hearings.

4For these reasons, the Plaintiffs are awarded their partial indemnity costs for both the leave to appeal and the appeal, fixed in the amount of $35,000, all inclusive.