CITATION: Avery v. Pointes Protection Association, 2017 ONSC 495
DIVISIONAL COURT FILE NO.: 999-15-ML
DATE: 2017/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JEFF AVERY, PATRICIA AVERY and 1704604 ONTARIO LTD.
Orlando M. Rosa, J. Paul R. Cassan and Tim J. Harmar, for the Appellants
Appellants
- and -
POINTES PROTECTION ASSOCIATION, THE CORPORATION OF THE CITY OF SAULT STE. MARIE and KLAAS OSWALD
Mark Wiffen, for the Respondents
Respondents
HEARD: In writing
REASONS FOR DECISION ON COSTS
ellies j.
[1] For reasons delivered on November 28, 2016 (2016 ONSC 6463), I dismissed the appellants’ motion for leave to appeal the OMB decision in question to the Divisional Court. The parties were unable to agree on costs and have made written submissions in accordance with the directions provided in my reasons.
[2] The Pointes Protection Association (the “PPA”) was the only respondent that participated in the motion for leave to appeal. It opposed the request for leave and was successful. The appellants concede that the PPA is entitled to costs as the successful party. However, they dispute the PPA’s request for costs on a substantial indemnity basis and the amounts sought on a partial indemnity basis.
THE SCALE OF COSTS
[3] The PPA seeks substantial indemnity costs in the amount of $32,484.98. It contends that it should be awarded costs on a substantial indemnity scale because of the “aggressive” approach taken by the appellants, “with little consideration for matters of efficiency and costs”. It sites a number of examples, including the “shotgun” approach referred to in my reasons (para. 18), the appellants’ failure to restrict their initial factum to 30 pages as required by this court’s practice direction, the appellants’ failure to adhere to the provisions of rule 61.03 by filing a reply factum, the fact that counsel for the appellants wrote to the court on two occasions without seeking leave from the court or the consent of the parties, and the fact that the appellants have also brought an application for judicial review regarding the same OMB decision, in which they have raised the same grounds as those raised in the motion for leave to appeal.
[4] In my view, none of these acts on the part of the appellants justify the imposition of a costs award on a substantial indemnity basis. The failure of the appellants to narrow the issues and their failure to adhere to the provisions of rule 61.03 are both factors that are more properly reflected in the increased amount of preparation time on the part of opposing counsel for which they liable, rather than in an increased hourly rate. The appellants can hardly complain about the time counsel for the PPA spent preparing his client’s response, when they themselves have taken such a broad approach to the scope of the appeal.
[5] I agree with the appellants’ submission that counsel should seek the consent of opposing parties, or the court’s leave, before corresponding with the court. However, the correspondence here was obviously sent solely for the purpose of assisting the court, and not in an effort to persuade it. For that reason, the conduct of counsel for the appellants in this case is distinguishable from that of the offending counsel in Canada Forgings Inc. v. Atomic Energy of Canada Ltd., 2014 ONSC 853, the case relied upon by the PPA.
[6] Lastly, the costs consequences, if any, of the appellants’ act of seeking judicial review of the OMB decision on the same basis as it sought leave to appeal ought to be dealt with at the conclusion of the application for judicial review, and not here. If the court before which the judicial review application proceeds concludes that it ought not to have been brought in light of my decision on the motion for leave to appeal, that court has the power to reflect that finding in its costs award.
[7] For these reasons, the PPA’s request for costs of a substantial indemnity basis is denied.
QUANTUM
[8] As an alternative to costs on a substantial indemnity basis, the PPA seeks partial indemnity costs in the amount of $22,055.64. The appellants submit that this is excessive for three principle reasons.
[9] First, the appellants submit that costs on a motion for leave to appeal to the Divisional Court should usually fall in the range of $3,500. They rely on the decision in Tucci v. Pugliese, 2010 ONSC 2144. In Tucci, Price J. agreed with the view expressed by J.M. Wilson J. in Fernicola (In Trust) v. Creview Development Inc., 2009 492 (Ont. S.C.) (para. 15) that “a standard award for costs in an unsuccessful motion for leave to appeal is in the vicinity of $3,500.”
[10] Assuming the accuracy of that statement for the sake of this case, it is quite clear that this was anything but a standard motion for leave to appeal. As I outlined in my reasons, the appellants alleged 34 errors of law in their notice of motion for leave and 20 such errors in their factum. Frankly, it seems to me that the appellants were fortunate that counsel for the PPA managed to address so many issues in such a succinct fashion, which leads me to the next ground relied upon by the appellants in challenging the quantum of the partial indemnity costs sought.
[11] The appellants submit that they are being asked to pay for additional preparation time for counsel because the PPA retained a different lawyer on the leave motion than the one that appeared before the OMB. The appellants argue that less time would have been spent had the PPA continued to retain the same lawyer, because she would not have been required to familiarize herself with the facts.
[12] I find no merit in this submission. It is very common, and often wise, to retain new counsel on an appeal. There are many reasons for this. They include the fact that appellate work is a unique area of practice in which many counsel have limited experience. They also include the benefit of having a fresh set of eyes on a matter. Where different counsel is retained for the purpose of an appeal, the experience of counsel at the hearing is not lost. It is expected that counsel on the hearing will brief counsel on appeal. Moreover, even where hearing counsel undertake an appeal, a thorough review of the transcript is necessary in order to acquire the proper mastery of the record.
[13] Lastly, the appellants submit that the quantum of costs sought by the PPA on a partial indemnity basis exceeds what the appellants might reasonably have expected to pay for costs, if unsuccessful. The appellants rely on the “standard award” of $3,500 referred to above.
[14] I have already explained why the decisions in Tucci and Fernicola are distinguishable. I agree wholeheartedly with the submission of counsel for the PPA that the appellants are in no position to argue that partial indemnity costs sought by the PPA are beyond their reasonable expectations in light of their failure to provide any information as to the amount of costs incurred by the appellants themselves: see 2012865 Ontario Inc. (c.o.b. Higgins Cohn Brand Management) v. Kinnikinnick Foods Inc., 2016 ONSC 2701, at paras. 38-40.
[15] In light of the many issues raised by the appellants, I find the partial indemnity fees sought by the PPA to be fair and reasonable in this case. They properly reflect the broad scope of the issues raised by the appellants, the importance of the issues to the parties, and the complexity of those issues.
CONCLUSION
[16] For these reasons the appellants shall pay to the PPA partial indemnity costs in the amount of $20,858.67, inclusive of fees, disbursements and HST.
Ellies J.
Released: February 1, 2017
CITATION: Avery v. Pointes Protection Association, 2017 ONSC 495
DIVISIONAL COURT FILE NO.: 999-15-ML
DATE: 2017/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JEFF AVERY, PATRICIA AVERY and 1704604 ONTARIO LTD.
Appellants
– and –
POINTES PROTECTION ASSOCIATION, THE CORPORATION OF THE CITY OF SAULT STE. MARIE and KLAAS OSWALD
Respondents
REASONS FOR decision ON COSTS
Released: February 1, 2017