Court of Appeal for Ontario

Date: 2019-12-04 Docket: C65418

Judges: Sharpe, van Rensburg and Thorburn JJ.A.

Between

Roderick MacLeod Plaintiff (Respondent)

and

William Hodgson Marshall, The Basilian Fathers of Toronto, The Sudbury Catholic District School Board, The Roman Catholic Episcopal Corporation of The Diocese of Sault Ste. Marie Defendants (Appellant)

Counsel

Chris T. Blom and Susan Metzler, for the appellant The Basilian Fathers of Toronto

Paul Pape, Shantona Chaudhury, and Cristina Senese, for the respondent Roderick MacLeod

Heard

September 6, 2019

On Appeal

On appeal from the judgment of Justice Arthur M. Gans of the Superior Court of Justice, sitting with a jury, dated April 26, 2018 and from his order dated August 29, 2018, with reasons reported at 2018 ONSC 5100.

Costs Endorsement

[1] On appeal, The Basilian Fathers of Toronto ("the Appellant") took the position that the jury instruction on how to assess damages for past income loss was wrong, the punitive damages award was excessive, and prejudgment interest ought not to have been awarded at the rate of five percent for non-pecuniary damages. They also raised a fourth issue which was abandoned prior to the hearing of the appeal.

[2] The entitlement to and quantum of damages for loss of income and punitive damages were upheld, but the award of prejudgment interest was not.

[3] The parties agree that the Respondent is entitled to disbursements in the amount of $3,683.21. The parties do not agree on the quantum to be awarded to the Respondent for fees or the fee scale of the costs award.

[4] The Appellant claims fees should be awarded on a partial indemnity scale, while the Respondent claims fees should be awarded on a substantial indemnity scale in the amount of $179,660.31, including disbursements and HST. The Respondent notes that the Victims' Bill of Rights, 1995, S.O. 1995, c. 6 ("the Act") creates a presumption that substantial indemnity costs will be awarded "unless the judge considers that to do so would not be in the interest of justice."

[5] We have considered the factors set out in s. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in particular, the importance of the issues, the conduct of the parties, the fact that the appeal was neither improper nor vexatious, and the amount the losing party could reasonably expect to pay. We have also taken into account the provision in s. 4(6) of the Act.

[6] A substantial award was made at trial for general damages, punitive damages, aggravated damages, future treatment and income loss.

[7] Liability and vicarious liability were admitted prior to trial and funding was provided for the Respondent's psychological treatment upon learning of the claim. Moreover, the Appellant did not appeal the jury award of general damages, treatment expenses, or trial costs assessed on a substantial indemnity basis.

[8] The issues pursued on appeal were important. This is one of the first cases in Ontario to instruct a jury on the manner in which to assess a claim for loss of income in a case involving a historical sexual assault.

[9] The Appellant was unsuccessful on the appeal of the first two issues but successful on the appeal of the third issue of prejudgment interest.

[10] The costs award sought does not reflect any duplication of time given that three counsel worked on the appeal.

[11] It is also important to note that the fees sought by the Respondent on appeal are disproportionate to the amount granted at trial. At trial, the Respondent was awarded $298,000.00 plus HST in substantial indemnity costs minus $3,078.33 plus HST – the hearing lasted thirteen days, covered five issues, and involved twelve witnesses. The Respondent now seeks $179,660.31 for a hearing that lasted less than one day and addressed three issues.

[12] For these reasons, we believe a costs award of $179,660.31 would not be in the interest of justice. However, in view of the issues outlined above, especially the Act and the presumption that substantial indemnity costs are to be awarded unless to do so would be contrary to the interest of justice, we award substantial indemnity costs in the amount of $100,000, inclusive of all taxes and disbursements to the Respondent.

"Robert J. Sharpe J.A."

"K. van Rensburg J.A."

"Thorburn J.A."