COURT OF APPEAL FOR ONTARIO

CITATION: Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542

DATE: 20210726

DOCKET: C67355

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Charlesfort Developments Limited

Plaintiff (Respondent)

and

The Corporation of the City of Ottawa

Defendant (Appellant)

Alyssa Tomkins and Anne Tardif, for the appellant

Timothy J. Hill and Mark van Zandvoort, for the respondent

Heard: in writing

On appeal from the judgment of Justice Sally A. Gomery of the Superior Court of Justice, dated July 24, 2019, with reasons reported at 2019 ONSC 4460.

COSTS ENDORSEMENT

[1] On June 11, 2021, we released our decision in which we allowed the appeal in this matter and dismissed the respondent’s action. We invited written submissions regarding the costs of the appeal and of the proceeding below.

[2] We have now received and reviewed the written submissions of the parties. The respondent does not dispute the amount sought for the costs of the appeal in the amount of $54,390.06, inclusive of disbursements and HST. The respondent also does not dispute the fees sought for the proceeding below in the amount of $258,071.53 plus HST. Where the respondent does take issue is with respect to the amount of $566,620.01 sought by the appellant as disbursements for the proceeding below.

[3] The single largest component of the disbursements sought is the amount of $478,860.28 for the fees of Deloitte & Touche, who were experts retained by the appellant. The respondent submits that these fees are not properly supported by the material filed and are, in any event, excessive. The first complaint was largely addressed when the appellant subsequently filed additional support for those fees.

[4] The fees of experts are subject to a reasonableness test, just as are the fees of counsel. The fees of experts are not, however, subject to further reduction based on the distinction between substantial indemnity costs and partial indemnity costs: 3664902 Canada Inc. v. Hudson's Bay Co. (c.o.b. Bay Department Stores), (2003), 2003 CanLII 26101 (ON CA), 169 O.A.C. 283, at para. 17. Put another way, the fact that a party may have paid its expert an exorbitant fee for their services does not mean that the other party must pay that amount. The other party must only pay what the court views as reasonable for the services provided: Yip v. HSBC Holdings plc, 2018 ONCA 626, 141 O.R. (3d) 641, at paras. 89, 91.

[5] In considering the reasonableness of the expert fees, we have taken into account the complexity of this matter as well as the fact that the appellant was facing a multi-million dollar claim which could also have had precedential impact, if sustained. We are also aware that the expert fees, while emanating from one firm, actually comprised four experts within their account. In the end result, none of the experts gave evidence because the parties were able to come to a partial agreement on damages that obviated the need to call the experts. Among other things, the agreement meant that the trial judge was not called to determine if the appellant would be given leave to call more than three experts: Evidence Act, R.S.O. 1990, c. E.23, s. 12.

[6] That said, a party is entitled to be paid appropriate amounts for expert reports reasonably necessary for the conduct of the proceeding, regardless of whether the expert is called to give evidence: Harding v. First Associates Investments Inc., [2003] O.J. No. 4652, at para. 49. We agree with that principle. The mere fact that the expert is not called does not mean that the expert report did not contribute to the advancement, or defence, of the claim. Indeed, an expert report may help resolve certain issues in the proceeding and thus promote settlement, or at least reduce the issues for trial. Indeed, that appears to have been what happened in this case.

[7] Nonetheless, the fact that the expert was not called to give evidence is a factor that ought to be taken into account in determining the reasonableness of the overall fees charged.

[8] We view the fees charged by Deloitte & Touche to be more than is reasonable for the other party to bear. We reach that conclusion, in part, by noting that the expert fees allowed to the respondent by the trial judge were about half what the appellant now claims. We also contrast the amount of fees charged by the experts to the fees to which counsel are entitled. While we recognize that the expert fees are, in essence, on a full indemnity basis whereas counsel fees are on a partial indemnity basis, the size differential is still noticeable. On that point, counsel must, of course, deal with all aspects of the claim whereas the experts’ tasks are more narrowly confined.

[9] In the result, we award the appellant the costs of the appeal fixed at $54,390.06, inclusive of disbursements and HST. We award the appellant the costs of the proceeding below fixed at $700,000, inclusive of disbursements and HST.

“Doherty J.A.”

“I.V.B. Nordheimer J.A.”

“A. Harvison Young J.A.”