Court File and Parties

Court File No.: DC-18-947-JR (Hamilton) Date: 2018-11-05 Superior Court of Justice – Ontario Divisional Court

Re: Manoj K. Talwar, Applicant And: Grand River Hospital Board of Directors, St. Mary’s General Hospital Board of Trustees, Panel of Grand River Hospital Board of Directors, St. Mary’s General Hospital Board of Trustees, Joint Medical Advisory Committee, St. Mary’s General Hospital and Grand River Hospital, Intervenor Surgeons Group, and Health Professions Appeal and Review Board, Respondents

Before: Justice D.A. Broad

Counsel: Applicant – Self-Represented John Morris and Henry Ngan, for the Respondents Grand River Hospital Board of Directors, St. Mary’s General Hospital Board Of Trustees, Panel of Grand River Hospital Board of Directors St. Mary’s General Hospital Board of Trustees, Joint Medical Advisory Committee St. Mary’s General Hospital and Grand River Hospital Steven G. Bosnick, for the Respondent Health Professions Appeal and Review Board

Costs Endorsement

[1] The parties have been unable to resolve the issue of costs. The Hospital respondents and the applicant have each delivered submissions on costs. The Health Professions Appeal and Review Board has not delivered any submission on costs.

Positions of the Parties

[2] The Hospital respondents seek costs against the applicant on a substantial indemnity basis in the sum of $22,175.70. This amount is comprised of fees attributable to the time spent by the three individuals - being 14.5 hours for Mr. Morris at an hourly rate of $753, 30.9 hours for Mr. Ngan at an hourly rate of $308, and 8.7 hours for Mr. Hawker at an hourly rate of $200. It is not clear whether Mr. Hawker is a lawyer, articling student or clerk. Messrs Morris and Ngan’s respective years of call to bar are not provided. There is no provision in the Hospital respondents’ Costs Outline for disbursements or HST.

[3] The Hospital respondents submit that the situation warrants costs on a substantial indemnity basis because the applicant was aware of the cost consequences of bringing his motion, was notified of the potential lack of merit of the relief he was seeking, and submitted an unreasonably lengthy motion record.

[4] The Hospital respondents submit that despite being self-represented, the applicant is a highly-educated litigant who has represented himself in numerous legal proceedings and has represented himself as a holder of a LLM from Osgoode Hall Law School.

[5] The Hospital respondents submit that the court may consider the conduct of the applicant in unnecessarily lengthening the duration of the proceedings by his submission of an unreasonable motion record that was 498 pages in length, as well as an “Appeal Book” and a “Final Supplementary Will Say Statement” comprising of 130 and 1,908 pages, respectively. They further submit that the motion brought by the applicant was completely unnecessary as he had a statutory right to a de novo appeal before the HPARB available to him. They say that there are therefore strong indications that the motion brought by the applicant was improper, vexatious, unnecessary, and an abuse of process.

[6] In response, the applicant submits that no costs should be awarded in respect of the motion or any award of costs should be stayed pending the outcome of his motion for leave to appeal the decision on the motion.

[7] The applicant submits that the Hospital respondents’ costs submissions are excessive, unreasonable and unrealistic. He submits that their Costs Outline includes time spent prior to his email request in August 20, 2018 for a motion hearing to stay the HPARB appeal pending the outcome of his judicial review application. He also submits that the motion was a very simple matter not requiring significant preparation time or two lawyers to represent the Hospital respondents.

[8] Moreover, the applicant disputes that the situation warrants costs on a substantial indemnity basis. He points out that he is self-represented and is not familiar with the court processes in Ontario. Although he holds an LLM, he never articled nor was he called to the bar and his law degree did not cover the procedural and practical aspects of the civil justice system.

[9] The applicant submitted that he did not enter into evidence an “Appeal Book” and a “Final Supplementary Will Say Statement” for the motion hearing. He says that a substantial amount of time would not have been required to review the material even if they had been entered into evidence for the motion hearing.

[10] The applicant denies that any step he took on the motion was improper, vexatious, unnecessary or an abuse of process. He says that he did not act in bad faith or unreasonably in relation to the motion.

Guiding Principles

[11] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid."

[12] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in subrule 57.01(1), including, in particular:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

[13] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, 1999 2052 (ON CA), [1999] O.J. No. 4600 (Ont. C.A.) at para. 24).

[14] Justice Perrell in the case of 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (Ont. S.C.J.) reformulated the purposes of the modern costs rules, at para. 10, as follows:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.

[15] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), 2004 14579, [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042, [2005] O.J. No. 160 (Ont. C.A.)).

Disposition

[16] As the successful parties, the Hospital respondents are, in my view, entitled to costs of the motion. There is no basis to decline to make an award of costs or to stay a costs disposition pending the outcome of the applicant’s motion for leave to appeal the decision.

[17] However, I am not of the view that an award of substantial indemnity costs is warranted in this case.

[18] In the case of Net Connect Installation Inc. v. Mobile Zone Inc. 2017 ONCA 766 (C.A.) the Court of Appeal stated at para. 8:

An award of costs on an elevated scale is justified in only very narrow circumstances — where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.) at para. 28. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation.

[19] In the circumstances of this case, the applicant’s conduct in simply bringing the motion cannot justify the imposition of substantial indemnity costs. Similarly, the applicant’s delivery of voluminous and largely extraneous materials does not give rise to substantial indemnity costs. However, his delivery of voluminous materials to counsel for the Hospital respondents would give rise to a reasonable expectation on his part that they would be obliged to at least review those materials, thereby increasing their time involvement on a partial indemnity basis.

[20] I agree with the applicant that any time spent by counsel for the Hospital respondents prior to his communication of an intention to bring the motion is not properly included in the costs of the motion. It also appears from the time dockets submitted that time spent on the Judicial Review Application proper was included rather than exclusively on the motion.

[21] Mr. Morris and Mr. Ngan both appeared as counsel on the motion hearing, although Mr. Ngan did not participate in oral submissions. Although it may be fully appropriate to have two counsel in attendance as between the law firm and their clients, it is not necessarily the responsibility of the opposing party to pay the costs arising that decision.

[22] I would allow on a partial indemnity basis 14.2 hours to Mr. Morris at $350 per hour, 14.9 hours to Mr. Ngan at $250 per hour and 8.7 hours to Mr. Hawker at $125 per hour, for a total of $9,782.50, rounded to $9,780.

[23] It is ordered that the applicant pay costs to the Hospital respondents in the sum of $9,780 within 30 days hereof.

D.A. Broad Date: November 5, 2018