Court File and Parties

Ontario Court of Justice

Date: February 16, 2017

Court File No.: Regional Municipality of Durham 2860 999 13 3400

Between:

The Corporation of the City of Oshawa

— and —

536813 Ontario Limited

Before: Justice of the Peace M. Coopersmith

Written Submissions Received: December 5, 2016, January 17, 2017 and January 20, 2017

Reasons for Decision Released: February 16, 2017

Counsel:

• Visha Sukdeo and Rhonda Vanderlinde for the prosecution
• Robert Fenn, Andy Wilson and Ashleigh Tomlinson for the defendant

JUSTICE OF THE PEACE COOPERSMITH:

I. INTRODUCTION

[1] On May 19, 2016, I found that the constitutional doctrine of interjurisdictional immunity applies, such that the Prosecutor, the Corporation of the City of Oshawa, cannot rely on provincial building code provisions to require the Defendant, 536813 Ontario Limited (now known as 1888798 Ontario Limited), to obtain a building permit for construction to its hangar at the Oshawa Airport complex. Hence, the charge against the defendant was void ab initio and the Information was quashed. [See: Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 287]

[2] Subsequently, on June 24, 2016, I heard submissions from both parties on whether I had jurisdiction to award costs and, if so, whether such costs were in order. On November 3, 2016, after careful consideration of these submissions, I determined that, indeed, I did have such jurisdiction. Furthermore, for reasons I had provided, the Corporation of the City of Oshawa, as Prosecutor, had displayed a marked and unacceptable departure from the reasonable standards expected of the prosecution. Consequently, I determined that an Order to award costs to the defendant was appropriate. [See: Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 665]

[3] On November 3, 2016, Ms. Tomlinson, on behalf of the Defendant, and Ms. Vanderlinde, on behalf of the Prosecutor, concurred that written submissions on the appropriate quantum of costs would be provided to me. Both parties agreed to a five-page limitation. A schedule was established: the deadline for the Defence submissions was December 5, 2016, while the Prosecution's submissions were due December 19, 2016. January 19, 2017 was set for me to render my ruling on the quantum of the costs award.

[4] In accordance with the schedule, on December 5, 2016, I received five and a half pages of submissions from Defence Counsel. Attached were authorities relied upon by the Defendant and a 'Bill of Costs'. Unfortunately, there had been a breakdown in communications between the Prosecutors, Ms. Vanderlinde and Ms. Sukdeo, such that on December 20, 2016, the City of Oshawa filed twenty-three pages of submissions and an attached list of the cited case law. Objecting to the length of the City's submissions, on December 29, 2016, Defence Counsel sent seven pages of Reply Cost Submissions, which were received by the Court on January 3, 2017.

[5] On January 5, 2017, I wrote to the parties to inform them that I would not accept the twenty-three pages of Cost Submissions from the Prosecution, as it significantly exceeded the five-page limit agreed to by the parties. This rejection of the Prosecution's submissions rendered the Reply Cost Submissions from the Defendant unnecessary. Consequently, I have given no consideration whatsoever to the Prosecutor's original twenty-three pages of submissions and the Defendant's original seven-page Reply to those Submissions.

[6] I then provided the Prosecution with additional time, to January 17, 2017, to re-submit its Cost Submissions in accordance with the five-page limitation. I advised the parties that this would cause a delay in my decision regarding the appropriate quantum of costs to be awarded. On January 19, 2017, the date originally set for me to render this ruling, I agreed to a half page Reply from the Defence (which was filed with the Courts the following day), and the matter was adjourned for me to provide my decision on February 16, 2017.

II. BACKGROUND

[7] In my November 3, 2016 ruling awarding costs to the Defendant, paragraphs 27 through 47 set out the background, my findings and the reasons I determined such an award is in order. [Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 665] For ease of reference, I have summarized my reasons for ordering costs against the Prosecution:

(a) The City of Oshawa as Prosecutor

The City is no ordinary litigant in these matters. It has more at stake in these proceedings than prosecuting in the public interest, as future development at the Oshawa Airport complex brings with it the potential for further significant revenues from building permits.

(b) Prosecution witnesses are City employees

No independent witnesses were proffered by the Prosecution. Furthermore, the Prosecution's witnesses were often evasive and less than forthcoming.

(c) City of Oshawa showcasing Hangarminiums as part of Oshawa Airport

Despite the City steadfastly denying during the proceedings that the Hangarminiums development, in which the Defendant's hangar is located, is a part of the Oshawa Airport, on a promotional, legal and operational basis, the City of Oshawa's actions speak otherwise.

(d) The Hangarminium development and building permits

Twenty-seven of the hangar units in the Hangarminium development were built without the City demanding that a building permit be obtained. It was only after development was well underway, when the Developer applied for condominium status and a stop-work order would have had a devastating financial effect on the Developer that the City demanded such permit be obtained, at a cost of $185,272.49. Moreover, this action by the City was in stark contrast to the Regional Municipality of Durham's determination that the Hangarminium development was under exclusive federal jurisdiction and development charges of $101,952.55 were refunded by the Region.

(e) City's failure to produce Airport Operations Manual

The City, as the Prosecutor, has a duty to disclose all relevant materials, in order to allow the Defendant to make full answer and defence. As the owner of the Oshawa Airport, it was unable to produce its Airport Operations Manual that was in effect at the time of the alleged offence.

(f) Building permit part of privileged resolution discussions

During the proceedings on the constitutional question, the City advised the Court that the Defendant had, indeed, obtained a building permit and, hence, had attorned or acceded to the City's jurisdiction over the requirement for building permits. It claimed that the process of applying for and receiving the building permit had no significant effect or impact on the Defendant. The Defendant advised the Court that obtaining the permit was done solely in an effort to resolve the dispute between the parties. I found that the City, as Prosecutor, breached its prosecutorial responsibilities by disclosing and using these resolution discussions against the defendant in order to gain a significant advantage in these proceedings. These actions clearly are a flagrant, marked departure from the usual and reasonable standards expected of the prosecution.

(g) Jurisprudence clearly gives broad and exclusive jurisdiction over aeronautics to the federal government

The case law is clear – the federal government has never relinquished its historical and exclusive jurisdiction over aeronautics. The jurisprudence on the doctrine of interjurisdictional immunity regarding aeronautics and airport-related building unmistakably holds that provincial building codes did not apply in the past and continue to not apply.

III. POSITIONS OF THE PARTIES

(a) Defendant's Cost Submissions

[8] The Defendant is requesting costs of $180,000 inclusive of HST and the costs for attendance in Court related to the awarding of costs. It bases its request on the Court of Appeal decision, R. v. Fercan Developments Inc., 2016 ONCA 269 where it was determined that the civil cost regime is not applicable. Instead, when costs are paid out of the public purse, a "reasonable" portion of costs incurred is what is appropriate. In undertaking the precise calculations, the judicial officer is to consider the following factors:

The nature of the case and the legal complexity of the work done:

The Defence submits that "[a]s a result of the unilateral actions by the City of Oshawa, the Defendant was obliged to expend considerable time and effort in dealing with this matter. In light of the conduct of the City, who was both the owner and operator of the Oshawa Airport, the Prosecutor in this case as well as the beneficiary of any fees collected for building permits, it is submitted that the Defendant was obliged to incur substantial costs in order to fully and properly defend itself."

The length of the proceeding:

Since the offence date of October 7, 2013, the Defendant has had to expend considerable resources in its defence. There were over fourteen court appearances and the trial took place over five days with an additional appearance for me to render my judgment. The Defendant is also claiming further time for submissions and appearances regarding costs.

The nature and extent of the Crown's misconduct:

In its submissions, the Defendant cites many of my November 3, 2016 findings and describes a number of factors that speak to the inappropriate conduct of the Prosecution. A synopsis has been provided in the "Background" section above.

The impact of the misconduct on the rights of the innocent third parties:

There was a significant impact on the Defendant, as its principal, Mr. Philip Sciuk, lost interest in and stopped flying during the proceedings, resuming these activities only after my judgment was rendered. Furthermore, the City's flagrant and marked departure from the usual and reasonable standards of prosecution targeted the Defendant's constitutional rights, despite the existence of unequivocal jurisprudence that provincial building codes do not apply to aeronautics.

The conduct (or lack thereof) of the innocent third parties:

The Defendant provided no submissions on this factor.

[9] The Defendant does not dispute that costs must be "reasonable" in the circumstances. It has attached a Bill of Costs totalling $178,410.72 for fees, disbursements and HST. As a result of the City's "hard ball attitude" towards the Defendant, the inappropriateness of the prosecution from the outset, the Prosecution's rejection of at least three offers to settle this matter without costs and the City's coercion of the Defendant to apply for a building permit and subsequently refusing to withdraw the charges, the Defendant submits that its costs are reasonable. Moreover, as outlined by Justice West, at paragraph 161, in R. v. Fercan Developments Inc., 2014 ONCJ 779, exception circumstances also apply, as "fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation". The Defendant asks that I also apply this factor to the circumstances of this case.

[10] The Defendant seeks $180,000.00 in costs. In the alternative, it seeks costs on a reduced basis of not less than $143,000.00 inclusive of HST. As well, the Defendant is requesting the costs it has incurred to attend court to deal with costs.

(b) The Prosecution's Cost Submissions

[11] The Cost Submissions from the Prosecution, the City of Oshawa, commence with much rehashing of its arguments that I have no jurisdiction to make an order for costs – a matter I put to rest in my November 3, 2016 ruling in which I determined I had jurisdiction to award costs and that such an award was in order in this matter. The City further submits that there is no basis in my decision for finding "a marked and unacceptable departure from the reasonable standards expected of the prosecution." I have no intention of re-addressing these issues, as my reasoned judgment and rulings are clear.

[12] Having said that, there are a few points about which I wish to set the record straight. The City states that the only witness it called and who, in fact, is a City employee is its Building Inspector, Robert Cook. The Airport Manager, Stephen Wilcox, is not a City employee, but is employed by a third party contractor with the City. Regardless, I re-iterate that the Airport Manager is not a witness independent from the City, as he acts through a contract, in a fashion akin to an agent on behalf of the City.

[13] It is the City's position that the other two witnesses, Mr. Wilcox and Ms. Symons-Milroy, were subpoenaed by the Defendant to give evidence on the constitutional motion and, hence, were not witnesses the Prosecution put forth. As I see it, the City was the first to put Mr. Wilcox's and Ms. Symons-Milroy's affidavit evidence before the Court in its written documents and submissions. In light of their respective relationships to the City, I find they are not independent witnesses. Moreover, no matter in what context the evidence from these witnesses first arose, the Defendant then had the right to call upon and question the affiants and to inquire about the affiants' respective documents.

[14] The City submits that its witnesses were proffered as fact witnesses, not experts and that concerns about a lack of impartiality on the part of a witness have been raised when witnesses are called to give expert evidence. Because a witness is employed in an investigative branch of a Ministry is an insufficient basis to find him or her incapable of providing an independent expert opinion. I have no issue with a witness, expert or not, providing his or her opinion in response to questions asked of him or her. What I do have difficulty with is a witness who is evasive, not forthright and at times is self-contradicting in answering questions asked of him or her.

[15] At no time did I reverse any onus, as the Defendant readily conceded that it had not applied for a building permit, as required under s. 8(1) of the Ontario Building Code, thereby making easy the Prosecution's onus of proving the elements of the offence beyond a reasonable doubt. I was very clear in my decision making to place the onus on the defendant to bring its defence on a balance of probabilities. The Defendant is entitled to being whatever defence it deems appropriate in the circumstances. Moreover, I am cognizant of the fact that the onus rests on the party bringing the motion to prove its case and I found the Defendant was successful in satisfying its onus in its motion on the constitutional doctrine of interjurisdictional immunity. I did not accept the City's response on this motion. Hence, I quashed the charge against the Defendant.

[16] Returning to the Prosecution's submissions on cost, the City claims the case was "overlawyered", with four lawyers and a student-at-law working on it. The work done by these lawyers was duplicative, for example, when, most often, two or three lawyers attended court during the trial and the motions brought in that trial.

[17] Furthermore, the City submits that the Bill of Costs is for full indemnity and there is no authority for this to be the default position for an award of costs. Rather, "reasonable costs" are what is contemplated. Full indemnity costs are awarded on very rare occasions, when a party has displayed reprehensible, scandalous or outrageous conduct.

[18] The City claims that the Bill of Costs is not clear on how and when the four hundred and sixteen hours of fees (equivalent to more than ten weeks' full time work) for work performed by four lawyers and the student-at-law were performed and, further, that this amount is obviously excessive. As well, the 25.8 hours for "inter-office communications" between lawyers, 5.3 hours for a lawyer to issue summonses and 33.9 hours for an unsuccessful s.11(b) Charter motion should not be accepted in the calculation of reasonable costs.

[19] The City submits that its prosecution was completed in a half-day and it was the Defendant's constitutional motion that took up the balance of the court time. Also, the Defendant added to the time by (a) choosing to cross-examine witnesses rather than rely on affidavit evidence, (b) file a legal opinion by another lawyer which required the City to respond, (c) file a "reply factum" over the City's objection, (d) file voluminous "written submissions" which included new information and evidence never put before the Court, again against the City's objection and (e) raise unsuccessful Charter claims to which the City was required to respond at length.

[20] The City claims that the hourly rates claimed by the Defendant do not comply with the Guidelines established by the Civil Rules Committee, but are far in excess of these Cost Bulletin rates. Moreover, the disbursements are excessive, for example, $7,200.00 for photocopies with no page count or price per page provided and $400.00 for travel expenses without details being provided.

[21] Finally, the City questions what, if any, amounts have actually been billed to the Defendant and whether any discounts may be given. It questions how much of the work for lawyers' fees is a duplication of work performed on the Application the Defendant brought in the Superior Court, which is still ongoing.

[22] In the end, the City requests that no costs be awarded to the defendant.

(c) The Defendant's Reply Cost Submissions

[23] The Defendant makes three points in reply to the City's submissions on costs. Firstly, it submits that most of the Prosecution's submissions address the Court's jurisdiction to award costs, which the Court has already addressed. Hence, these submissions are improper and should be ignored. Secondly, the Bill of Costs represents the charges actually billed to the client, including disbursements, and the student-at-law refers to Ms. Tomlinson prior to her call to the Bar. Paragraph 22 of the Defendant's Cost Submissions clearly states that the Bill of Costs relates only to the Provincial Offences matter and does not include any duplication of time and expense for the Application commenced in the Superior Court of Justice. Thirdly, the Defendant disagrees that it "chose to add to the time and cost of the proceedings". Instead, any lengthening of the proceedings was as a result of "the City's dogged contestation of obvious facts and clear points of law" and "these meritless proceedings in the first place". All steps taken by the Defendant were proper and well within its right and need to make full answer and defence.

IV. DETERMINING THE QUANTUM OF REASONABLE COSTS

[24] I have given the cost submissions of both parties careful consideration. I am guided by the decision of West J. in R. v. Fercan Developments Inc., 2015 ONCJ 695, as well as by LaForme J.A., writing the Ontario Court of Appeal's decision in R. v. Fercan Developments Inc., 2016 ONCA 269 (dismissing the appeal of Justice West's decision).

[25] Justice West considers partial indemnity as the starting point in a criminal costs award. The more serious the Crown misconduct, the more the award approaches costs on a substantial indemnity basis. As well, the Prosecution needs to seriously assess whether there is a reasonable prospect of a conviction before proceeding to trial.

[26] At paragraph 46 of his decision, Justice West writes:

It is my view FirstOntario's costs should be awarded on a substantial indemnity basis having regard to my findings of fact set out in paragraph 6 above. The principles applied in civil matters, although not wholly transferable to criminal matters, can be of assistance by way of analogy. In civil matters, substantial indemnity costs are appropriate where a party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit and whether the conduct of any party tended to shorten or lengthen unnecessarily the duration of the proceeding or whether any step in the proceeding was improper, vexatious or unnecessary. In criminal matters, as argued by Mr. Wilson, "the common law tends to treat costs as compensatory, in that there must be a "causal connection" between the costs claimed and the impugned conduct of the Crown." There can be no doubt FirstOntario's costs were caused entirely by what I have found to be serious Crown misconduct.

[27] In the matter before me, I have provided a plethora of factors and reasons for finding that the Prosecution's conduct was a marked and unacceptable departure of the reasonable standard expected of the prosecution. Given the untenable position into which the City placed the developer of the Hangarminiums once it had the development well underway, that corporation had no choice but to make a strategic business decision not to litigate when the City decided to impose the need for a building permit at a cost of over $180,000.00. Subsequently, it is 536813 Ontario Limited that has borne the brunt of the litigation necessary to send the message to the City of Oshawa that the Ontario Building Code and, in particular, building permits which produce revenues for the City, are not applicable to the Oshawa Airport complex.

[28] In determining whether the City properly assesses whether a prosecution was in order, as I have stated previously, while the City of Oshawa is obliged to prosecute in the public interest, in the case now before me, the City's own self-serving interests appear to have overtaken the broad public interest. Furthermore, the City proceeded with the charges against the Defendant in the face of unequivocal jurisprudence in which the constitutional doctrine of interjurisdictional immunity gives the federal government exclusive jurisdiction over matters relating to the field of aeronautics, including the construction of buildings for such use. Furthermore, the City cannot showcase the existence of the Hangarminiums as part of the Airport complex to further its own economic development, but turn this around when it comes to raising revenues from permit fees – it simply cannot have it both ways. Moreover, the City enticed the Defendant to obtain a building permit from the City in an attempt to resolve the matters without the need for litigation and then subsequently reneged on its word by not withdrawing the charges. The City's egregious conduct was further heightened when it then attempted to use these resolution talks at trial against the Defendant. Consequently, I find that costs are to be awarded on a substantial indemnity basis.

[29] In determining the appropriate cost award in this matter, there are many factors to consider. First, in making any order for an award of costs, I am acutely mindful that such costs will be made from the public purse.

[30] There are many other factors to consider. As stated by Thomas J., in R. v. Huard, 2009 O.J. No. 6221 (S.C.J.), at paragraph 70:

Perhaps a costs award calculated on the basis of hourly rates and billable hours constitutes the most reasonable structure to determine the amounts to be paid by the Crown for its misconduct. It is important to remember that costs are not to be equated to or confused with damages. Ultimately, to resolve the issue of the amount of these costs I have considered the following factors:

1. Costs here have a significant role in clearly denouncing Crown conduct. As such, I must consider all relief granted to date by the Court. The accused have had the benefit of a mistrial and the ability to start this trial over with a fresh jury. There has been significant publicity regarding this Crown and Police misconduct. I have previously ordered the Ministry of the Attorney General to pay for all trial and pre-trial motion transcripts ordered by the defence. The cost of those transcripts is $17,188.39.

2. The costs to be paid come from the public purse. Care must be taken not to view the respondent as a limitless "deep pocket." There are numerous worthy recipients for public funds.

3. The amount ordered must be meaningful. A nominal award, while symbolic, would fail to send the necessary message.

4. The amount ordered must be "fair and reasonable," as directed by the Court of Appeal in the civil costs cases cited above.

5. These costs are relief granted to the accused, and are not meant to supplement or indemnify defence counsel.

[31] The Defendant has received no cost relief to date. Keeping in mind that any order for costs comes from the "public purse", I am aware that the City of Oshawa does not have limitless "deep pockets". Nonetheless, the amount of the award of costs against the City cannot be merely nominal or symbolic, but must serve to send a clear, necessary and meaningful message to the Prosecution that its conduct has exhibited a marked and unacceptable departure from the usual and reasonable standards of prosecution. Having said this, I intend that any award I make will be "fair and reasonable".

[32] I also agree with the Defendant's submissions that there are other factors to consider in calculating the appropriate quantum of costs to award:

• The nature of the case and the legal complexity of the work done;
• The length of the proceeding;
• The nature and extent of the Crown's misconduct;
• The impact of the misconduct on the rights of the defendant; and
• The conduct (or lack thereof) of the defendant.

[See: R. v. Fercan Developments Inc., 2016 ONCA 269, at para. 138]

[33] The constitutional doctrine of interjurisdictional immunity rarely arises in our Provincial Offences Courts. It is a complex legal doctrine of limited application, making the nature of this case one that requires a considerable amount of work to be done. From the substantive proceedings, in-depth motions materials, written and oral submissions, volumes of authorities provided, etc., both parties exhibited to me that this proceeding was anything but routine and called upon comprehension and application of complex legal knowledge.

[34] The Defendant had every right to bring whatever reasonable defence available to it to have the charge against it defeated. Its constitutional motion was one such defence. I do not accept the City's submission that it took only half a day to complete its prosecution and it was because of the Defendant's actions that the balance of court time was taken. I must remind the Prosecution that the Defendant did not dispute that no building permit was obtained prior to modifications made to its hangar, making it simple for the Prosecutor to meet the onus of proving the elements of the offence beyond a reasonable doubt. Not so simple was the onus on the Defendant to bring the constitutional doctrine of interjurisdictional immunity, as its defence. The Defendant had the right to determine how to bring its defence, including the constitutional motion and, given the complexity of the doctrine of interjurisdictional immunity and the field or aeronautics, amongst other things, the voluminous written materials that the Defendant filed were not beyond the bounds of reasonableness. The City cannot claim that, in the circumstances before this Court, the manner and substance of any of the Defendant's arguments lacked merit. Moreover, the Defendant had every right to ask to question the City's affiants. It also was within its rights to provide a "reply factum", despite any objection the City may have had. Filing a legal opinion by another lawyer, which required the City to respond, did not take up an inordinate amount of time. And given that the alleged offence date was October 7, 2013 – almost two years before the trial proper commenced, it was not unreasonable for the Defendant to bring a section 11(b) Charter motion. In awarding costs in a civil proceeding, the success or failure of such a motion may be relevant. However, the basis for costs in this proceeding, which the Defendant claims was meritless in the first place, is directed at addressing the misconduct of the Prosecution. And, finally, given the nature of the case and its legal complexity, after many court appearances prior to the trial itself, five to six days for trial was not unreasonable.

[35] In considering the next factor addressing the nature and extent of the Prosecutor's misconduct, my November 3, 2016 ruling outlines my findings. And I provided an overview of that decision above. In the end, I found that the Prosecution exhibited conduct that was a marked departure from the usual and reasonable standards of prosecution. No more need be said on this factor.

[36] I accept that the charge against the Defendant had an adverse effect on the Principal of 536813 Ontario Limited, in that he lost his passion for flying from when this charge was laid against his company in 2013, until I rendered my judgment in May 2016. However, the greater impact has been the financial and emotional toll borne by one individual in these proceedings. Now that the charge against this particular defendant has been quashed, there is precedent upon which many developers and people owning hangars at the Oshawa Airport complex may rely in the future, all attributable to the time, legal costs, efforts and inroads 536813 Ontario Limited has made as a result of the positive outcome it has received in these proceedings.

[37] Finally, as I have stated, I have not found the conduct of the Defendant to be out of line in any part of the proceedings before me. In fact, the Defendant readily accepted the fact that it had not applied for a building permit prior to undertaking modifications to its hangar. It has every right to bring forth every reasonable defence available to it. I find there has been no egregious behaviour, nothing that reaches beyond the bounds of the conduct expected of a defendant exercising its rights to make full answer and defence to a charge brought against it.

[38] As cited at paragraph 19 of Justice West's ruling and reinforced at paragraph 150 of the Ontario Court of Appeal decision, in awarding costs where a defendant's rights have been breached (in this case, the rights provided under our Constitution that give the federal government exclusive jurisdiction over the field of aeronautics), the Court has a duty to clearly denounce and deter the Prosecution's conduct, so as not to bring the administration of justice into disrepute. The City of Oshawa cannot conduct itself as it did and cannot act ultra vires in bringing this action against the Defendant.

[39] At paragraph 26, Justice West states, "An important consideration in determining the appropriate quantum for a criminal costs award is the proportionality as between the property interest of the third party and the fees generated in attempting to protect that interest." In the matter before me, the Defendant claims that a $180,000.00 award for costs is not out of line with the $185,272.49 paid by the developer of the Hangarminium complex for a building permit. I am mindful that the Defendant before me is not the Developer of the Hangarminium complex, but an owner of one of the hangar condominiums. The price this Defendant eventually did pay for a building permit pales when compared to the legal fees and disbursements it has incurred. However, in assessing the proportionality between the property interest at stake and the amount of fees generated, I accept that the property interest is much larger than what this particular Defendant has at stake, as future development of the Oshawa Airport complex is anticipated. Consequently, there are upcoming significant interests at stake, all of which stand to benefit as a result of the interest this Defendant has asked this Court to protect.

[40] I have also considered the factors the City has brought for my consideration. They include:

• The case was "overlawyered" and the lawyers' work was duplicative;
• The Bill of Costs appears to be for full indemnity, which should not be the default position for an award of costs;
• Any award of costs is from the public purse;
• Full indemnity costs are awarded on very rare occasions for outrageous conduct and any award of costs needs to be fair and reasonable;
• The four hundred and sixteen hours of fees for work performed by the defence lawyers and the $7,200.00 for photocopies are excessive;
• The hourly rates claimed by the Defendant do not comply with the Guidelines established by the Civil Rules Committee.

[41] While the Prosecution had a lawyer and a licensed paralegal at all of the trial proceedings, at most trial appearances, the Defendant had two, and occasionally three, lawyers in attendance. Given the nature of the proceedings and, in particular the subject matter relating to the constitutional doctrine of interjurisdictional immunity as it applies to the specialized field of aeronautics, I do not consider such attendance by defence counsel to be inappropriate. I also am aware that significant preparation time and exchange of communications of legal and subject expertise is needed to produce a well-co-ordinated defence.

[42] I have scrutinized the Bill of Costs and the various "Items" or activities defence counsel is claiming. They are as follows:

FEE ITEM	TOTAL HOURS
1. To drafting, reviewing, revising and finalizing communications and meetings with client regarding instructions and comments with respect to documents, motions, trial and Decision of the Court	38.6
2. To inter-office communications relating to various matters	25.8
3. To communications from and to the City of Oshawa in respect of preliminary matters, scheduling of the motion, documents, adjournments, and related issues to the trial	9.6
4. To communications with the Attorney General of Canada and Attorney General of Ontario in regards to whether they would be intervening	0
5. To communications with the Court regarding scheduling, documents requirements and transcripts	10.6
6. To legal research with respect to all related issues	22.8
7. To review client documentation	3.3
8. To preparation of Notice of Constitutional Question	3.1
9. To preparation of Notice of Motion, Affidavit evidence, Motion Record and Supplementary Motion Record	41.5
10. To preparation of Factums and Book of Authorities	23
11. To preparing, reviewing, revising and confirming service on witnesses and filing Summons	5.3
12. To reviewing motion material from the City of Oshawa	0
13. To preparation of written submissions with respect to 11(b) arguments	33.9
14. To preparation of submissions with respect to jurisdiction to award costs	13.5
15. To preparation for Court appearances	65.9
16. To appearing at Court for the various issues, motions, trial, reading of the Court's Decisions, etc.	119.1
17. To preparation of costs submissions	0
TOTAL	416 hours

[43] The City claims that 25.8 hours for "inter-office communications" between the defence lawyers is inappropriate. I do not agree and I accept that inter-office communications is critical in order for the various defence lawyers to bring a seamless and an efficient and effective defence into the courtroom. Secondly, the City questions the 5.3 hours "for issuing summons when it is not clear why a lawyer was required to perform any of this work". However, as I read the Bill of Costs Defence Counsel is claiming these 5.3 hours to include, not just obtaining the issuance of witness summonses, but also for preparing, reviewing, revising and confirming service on witnesses, as well as filing the summonses with the Court. Ensuring witnesses are summonsed to court is critical to the Defence's case and, again, I do not find these hours, which were performed by the most junior lawyer, to be out of order. Thirdly, the City questions the 33.9 hours for an unsuccessful 11(b) motion. As I have stated, given the trial did not commence until almost two years from the alleged offence date, it was not inappropriate for the Defendant to consider that the proceedings were delayed and to bring a section 11(b) Charter motion before the Court. The fact that a Defendant is unsuccessful in a motion is relevant in civil proceedings. However, the basis for costs in this matter speaks not as much to success or failure, but to the conduct of the Prosecution. More important is the fact that, in the first place, the City brought this prosecution against the defendant for what I have determined to be self-serving purposes. The Defendant was well within its rights to bring a section 11(b) motion in the circumstances that unfolded over the course of this prosecution against it.

[44] To complete my application of the factors considered by Justice West, and in accordance with paragraph 31 of his ruling, he states that fees generated in bringing the costs application "are not generated as a result of the Crown conduct that amounts to a marked and unacceptable departure of the reasonable standards expected of the prosecution and are not part of [his] decision on June 25, 2014 to award costs for the Crown conduct in bringing the forfeiture application and their conduct throughout the proceedings." I note that the Defendant's Bill of Costs shows at Item 14. "To preparation of submissions with respect to jurisdiction to award costs". Consequently, I am deducting $5,104.50 for the 13.5 hours claimed for this activity. Furthermore, I will not be accepting any other request for payment of such fees. I find the remaining 402.5 hours appropriate in the circumstances of this case.

[45] I also note that of the 402.5 hours of legal fees, almost two-thirds are incurred by the most junior legal counsel, Ashleigh Tomlinson (196.8 hours as a lawyer and 57.7 hours as a student-at-law). During these proceedings it became quite evident that Ms. Ashleigh was integrally involved in the case brought by the Defendant. She appeared in court throughout the trial, providing materials and submissions on complex legal concepts that turned critical to the success of the Defendant in having the charge against it quashed. Robert Fenn, as Senior Counsel, reasonably accounts for 78.1 hours or less than twenty percent of the billed hours. The remaining seventeen percent or just under seventy hours were billed by Patrick Floyd and Andrew Wilson (12.3 hours and 57.6 hours respectively). Counsel Andrew Wilson, as a commercial pilot for Air Canada, brought with him his expertise in the field of aeronautics. His questioning of the witnesses, in particular, the Oshawa Airport Manager, Stephen Wilcox, clearly illustrated the exceptional knowledge, combining the rare combination of both the law and the field of aeronautics, that he brought on behalf of the Defendant. As already noted, these proceedings put forth complex legal issues which necessitated research and a co-ordinated presentation of the issues by the Defendant's legal counsel. Breaking down the 402.5 hours of fees into the "items" or various activities that were performed and by the number of hours billed by each of the lawyers, I find the amount of time spent by the various lawyers to perform these activities is not excessive.

[46] The City submits that the hourly rates of each of the Defendant's legal counsel "are in excess of the Costs Bulletin rates, even adjusted for inflation." The Prosecution presents the following 2016 hourly rates, after adjustments for inflation are applied:

• Student-at-law Maximum of $71.79 per hour
• Lawyer (less than 10 years) Maximum of $269.21 per hour
• Lawyer (10 to 20 years) Maximum of $358.94 per hour
• Lawyer (more than 20 years) Maximum of $418.77 per hour

[47] Robert Fenn's hourly rate is $550.00. While this amount is in excess of the Guidelines established by the Civil Rules Committee, as Senior Counsel with 33 years of experience, and with his name clearly contained in the firm's masthead "Rohmer & Fenn", I do not find Mr. Fenn's hourly rate to be excessive. Next, it is rare to find a commercial pilot who has the knowledge and talents Andrew Wilson brought to these proceedings. Coupled with twenty-five years' experience as a lawyer, I accept his hourly rate of $495.00. Patrick Floyd has just under twenty years of experience as a lawyer and his contribution to these proceedings is relatively insignificant, amounting to just over twelve hours billed at $425.00 per hour. I take no issue with these costs. Throughout the proceedings, it became apparent that Ashleigh Tomlinson brought more than what a student-at-law or first year lawyer would bring to the table. Her knowledge and appreciation of the legal issues were stellar. The various written summaries she provided throughout the proceedings served as comprehensive and organized roadmaps of the Defendant's submissions and, to some extent, assisted to shorten the time needed to present the Defendant's case before the Court. Consequently, as a student-at law, her hourly rate of $175.00 and her junior counsel rate of $295.00 for up to two years of experience as a lawyer are not inappropriate.

[48] In summary, after deducting the hours billed for cost submissions, I find the number of hours of lawyers' fees billed and the hourly rate of each lawyer to be reasonable. The number of hours times the respective hourly rates amount to $144,430.00 plus HST.

[49] The Defendant is claiming disbursements totalling $8,351.03. I find the costs for couriers, postage, facsimile, transcripts and service of summonses reasonable. Overall, photocopies account for $7,233.80 of the total disbursement amount. As noted above, costs and disbursements in bringing the costs application should not be part of this costs award. Hence, I am deducting $798.80 for photocopying of cost submissions from the total amount claimed for disbursements. That leaves $6435.00 in disbursement costs charged to the Defendant for photocopying. Defence Counsel has not provided me with the price per page to photocopy. Assuming the charge per page is $0.10, that equates to 64,350 pages of photocopying, which I find to be excessive. Assuming a charge of $0.25 per page, the result is 25,740 pages. In this case, I find the cost per page somewhat excessive. I am quite aware of the voluminous written submissions that were submitted on behalf of the Defendant, to include the Constitutional Application, Motion Record, Factums, Books of Authority, section 11(b) Charter motion materials, etc. The Defence and Prosecution materials filled well over a banker's box. Furthermore, I am aware of the number of copies of each written submission that the Defendant must serve on the Prosecution and the Court. However, I do find $6,435.00 for photocopies is excessive and hence, I am reducing this disbursement for photocopying by half to find a reasonable amount for this disbursement is $3,217.50. These reductions bring reasonable disbursements to $4,334.73.

[50] Adding reasonable fees of $144,430.00 to reasonable disbursements of $4,334.73, full reasonable costs total $148,764.73. However, as I have stated, these costs are payable on a substantial indemnity basis. Keeping in mind that substantial indemnity is not synonymous with full indemnity, and guided by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, along with section 1.03, Rule 57 and Tariff A of R.R.O. 1990, Reg. 194: Rules of Civil Procedure (made under the Courts of Justice Act), I am awarding reasonable costs on a substantial indemnity basis in the amount of $111,600.00 plus any applicable HST.

V. CONCLUSION

[51] I have determined that I have jurisdiction to award costs against the Prosecution and, in the circumstances of this case, such a cost award is appropriate. For all of the reasons I have provided, I have determined that reasonable fees are $144,430.00 and reasonable disbursements are $4,334.73, for total reasonable costs of $148,764.73. This amounts to an award on a substantial indemnity basis in the amount of $111,600.

[52] In conclusion, in order to meet the aims of denunciation, deterrence and an element of compensation for the costs incurred, on a substantial indemnity basis, I am making an Order for an Award of Costs for reasonable fees and disbursements, in favour of the Defendant and against the Prosecutor, the City of Oshawa, in the amount of $111,600.00. If appropriate, HST of $14,508.00 is to be added, for a total cost award of $126,108.00. This amount is to be paid within thirty days.

Released: February 16, 2017

Signed: Justice of the Peace M. Coopersmith