Court File and Parties
COURT FILE NO.: CV-16-553147 DATE: 20170530 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDRÉ MARIN, Plaintiff (Responding Party) AND: THE OFFICE OF THE OMBUDSMAN OF ONTARIO, THE LEGISLATIVE ASSEMBLY OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants (Moving Parties)
BEFORE: Mr. Justice P. J. Cavanagh
COUNSEL: Michael D. Wright and Elichai Shaffir, for the Plaintiff Catherine Beagan Flood and Iris Antonios for the Legislative Assembly of Ontario Robert W. Little for the Office of the Ombudsman of Ontario
HEARD: Submissions in Writing
Costs Endorsement
[1] The Defendant the Legislative Assembly of Ontario (the “Assembly”) seeks costs on a partial indemnity scale of its successful motion to have the Plaintiff’s action as against it dismissed for lack of jurisdiction. The Defendant The Office of the Ombudsman of Ontario (the “Ombudsman”) seeks costs on a partial indemnity scale of its successful motion to have the Plaintiff’s statement of claim struck out on the ground that it discloses no reasonable cause of action.
Costs Claimed by the Assembly
[2] The Assembly requests an award of costs in the amount of $88,353.13, inclusive of fees, disbursements and applicable HST, on a partial indemnity scale.
[3] The Assembly submits that the objective in fixing an amount for costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than an amount fixed by the actual costs incurred by a successful litigant, and that in deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is relevant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at paras. 26, 38. I agree.
[4] The Assembly submits that the Plaintiff sought over $3 million in damages and that the Assembly was entirely successful on its motion. It submits that the motion was very important to both of the parties, that the motion was legally complex, and that the amount claimed is what the Plaintiff should reasonably have expected to pay were the Assembly to succeed on the motion.
[5] The Plaintiff submits that: a. The time spent by counsel for the Assembly and the amount sought by the Assembly are not proportional to the nature and complexity of the motion. The motion was heard in one day and there was one brief cross-examination on an affidavit in advance of the motion. b. The Plaintiff’s bill of costs, prepared for both of the motions, sought $48,969.78 on a partial indemnity scale and that the amount claimed by the Assembly is far in excess of the amount that the Plaintiff could reasonably have expected to pay if the Assembly were to succeed on its motion. c. The Plaintiff should not be responsible for disbursements for legal research. d. The Plaintiff’s economic circumstances and ability to pay costs should be taken into consideration. e. Given all of the circumstances, it is not fair and reasonable for the Plaintiff to pay costs. In the alternative, he should only be required to pay a small fraction of the amount sought by the Assembly.
[6] In my view, having succeeded on its motion, the Assembly is entitled to an award of costs on a partial indemnity scale. The amount must be fair and reasonable in the circumstances and, in determining what is fair and reasonable, I consider the reasonable expectations of the parties concerning the quantum of a costs award as a relevant factor.
[7] I have reviewed the Assembly’s costs outline. I accept that the motion was important to both of the parties and that the motion was legally complex and required considerable legal research and work to be done for the factum, as well as considerable work to be done to prepare the affidavit that was filed on behalf of the Assembly. Nevertheless, in my view, the motion was not factually complex and the amount requested exceeds the amount that is fair and reasonable in the circumstances. In my view, the number of hours expended for preparing the motion materials and reviewing the responding motion materials, preparing for and attending the cross-examination of Ms. Deller, and preparing the Assembly’s Factum exceeds the amount of time that for which the Plaintiff could reasonably have expected to be responsible in an award of partial indemnity costs.
[8] I do not consider that this motion qualifies as one where the maximum partial indemnity rates are appropriate. I consider the partial indemnity rates that the Assembly used, without the added inflation factor, to be reasonable for this motion. I would allow the disbursement for legal research: Austin Pharma Drugs Ltd. v. Albion Kipling Medical Building Corp., 2012 ONSC 4044 at para. 6. Although I agree that a party’s financial situation is a factor that a court may consider when deciding the issue of costs, it is not determinative. In my view, having been unsuccessful, the Plaintiff must bear the cost consequences that follow.
[9] In my view, the amount that is fair and reasonable for fees to be paid to the Assembly for this motion on a partial indemnity scale is $40,000, including the counsel fee for the attendance at the hearing of the motions, which, with HST, is $45,200. The disbursements of $4,783.67, inclusive of HST, are proper.
[10] The total award of costs in favour of the Assembly is, therefore, $49,983.67.
Costs Claimed by the Ombudsman
[11] The Ombudsman seeks costs in the amount of $34,835.11, inclusive of fees, disbursements and HST on a partial indemnity scale.
[12] The Ombudsman submits that the action would have been long and complex and that the Ombudsman’s motion was an efficient and timely step that saved both parties from incurring the significant legal costs that the litigation would have entailed. The Ombudsman also submits that the legal issues were novel and that the Ombudsman staffed the file appropriately.
[13] The Plaintiff makes essentially the same submissions as were made in response to the Assembly’s claim for costs including that the amount claimed is not fair and reasonable in the circumstances.
[14] In my view, the Ombudsman’s claim for costs exceeds the amount that would be fair and reasonable for the Plaintiff to pay in the circumstances.
[15] I have reviewed the Ombudsman’s costs outline. In my view, the partial indemnity rates used are somewhat higher than is appropriate for this motion. The partial indemnity rates that I consider appropriate for the Assembly for senior and junior counsel are also appropriate for the Ombudsman. In my view, this motion does not qualify as one where the maximum partial indemnity rates are appropriate.
[16] The legal ground upon which the Ombudsman moved, although perhaps somewhat novel, was not complex. The motion was not factually complex. There were no cross-examinations that the Ombudsman attended. I regard the number of hours claimed to exceed the number for which the Plaintiff could reasonably have expected to be responsible.
[17] In my view, the amount of fees that is fair and reasonable on a partial indemnity scale to be paid to the Ombudsman is $15,000, inclusive of counsel fee at the hearing of the motion, which, with HST, is $16,950. The disbursements of $1,601.81 inclusive of HST are proper.
[18] The total award of costs in favour of the Ombudsman is, therefore, $18,551.81.