Court Information

Court: Ontario Court of Justice, St. Catharines Date: 2012-07-13 File Number: 2111 - St. Catharines

Parties

Appellant: Eleanor Lancaster

Respondent: Compliance Audit Committee of the Corporation of the City of St. Catharines

Added Parties: Matthew Harris, Mathew Siscoe, Len Stack, Brian Dorsey

Before the Court

Justice D.A. Harris

Heard: April 13, 2012 Ruling Delivered: July 13, 2012

Counsel

• L. De Lisio – for the Appellant, Eleanor Lancaster
• N. Auty – for the Respondent, Compliance Audit Committee
• T.A. Richardson and J.P. Maloney – for Added Parties, Matthew Harris, Mathew Siscoe and Len Stack
• Brian Dorsey – Added Party in Person

Ruling on Costs

HARRIS J.:

Background

[1] The Appellant applied to the Compliance Audit Committee of the Corporation of the City of St. Catharines (hereinafter referred to as the "Committee") pursuant to section 81 of the Municipal Elections Act, 1996 (the "Act") for a compliance audit of the campaign finances of candidates Brian Dorsey, Matthew Harris, Mathew Siscoe and Len Stack.

[2] The Committee dismissed that application on July 19, 2011.

[3] The Appellant appealed to the Ontario Court of Justice requesting that the decision of the Committee be set aside and that the Committee be directed to appoint an auditor to conduct a complete compliance audit of the campaign finances of the four named candidates.

[4] The Notice of Appeal was served on all four candidates and I granted all of them status as Added Parties.

[5] At the conclusion of these proceedings I found no reason to interfere in any way with the decision of the Committee and I dismissed the Appeal.[1]

[6] I invited the parties to address the issue of costs, if they saw fit, in court, by appointment. The Respondent Compliance Audit Committee of the City of St. Catharines declined to do so. All of the Added Parties however chose to apply for an order for costs.

[7] I heard submissions with respect to that on April 13, 2012.

[8] This is my decision with respect to that application.

Authority to Order Costs

[9] I note from the outset that all of the parties agreed that I had the authority to make a costs order.[2]

[10] This was an appeal pursuant to the Municipal Elections Act. The Act contains no provision for making an order respecting costs in respect of such an appeal. The authority is found instead in the Courts of Justice Act which provides:

S. 131(1) Subject to the provisions of an Act or the Rules of Court, the costs 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 costs shall be paid.

[11] This section is found in Part VII of the Act which applies to civil proceedings in courts in Ontario (s. 95). That clearly includes an appeal under the Municipal Elections Act.

[12] However, there are no rules dealing specifically with the assessment of costs in the Ontario Court of Justice and reference must be made to s. 146 of the Courts of Justice Act which states:

Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.

Should Costs Be Ordered Here and If So On What Scale?

[13] The usual practice in civil proceedings is that the successful party is paid its reasonable costs by the unsuccessful party. However, in some cases the usual practice need not apply. Counsel for the Appellant argued that the usual practice should not apply here because the Appellant was a public interest litigant and because the Appeal had been against the Committee only and not the Added Parties personally.

[14] Counsel for the Added Parties countered that the appeal was a direct personal attack on the integrity of the Added Parties and that by pursuing this matter beyond the Committee stage the Appellant could more appropriately be categorized as "a busybody, a mischief-maker".[3]

[15] Quite frankly, neither side put any evidence before me to address the issue of how I might categorize the Appellant's role in this appeal. Based on the materials before me, I did not have sufficient information to allow me to reach the conclusion that she was either a busybody or a public interest litigant.

[16] With respect to the suggestion that this was not a matter that required the participation of the Added Parties, I reject that argument completely. The Appellant not only continued to allege in her Notice of Appeal that the Added Parties had violated the provisions of the Municipal Elections Act, she continued to pursue allegations against them that she had abandoned before the Committee. I note also that if the appeal was successful, an audit would have been ordered and these allegations would have remained unresolved until after the audit was completed. It was therefore only natural that the Added Parties would participate in the Appeal process in order to defend their reputations against these very public allegations, especially when one considers the fact that all of the Added Parties had been candidates for public office and three of them had in fact been elected as municipal councillors. It would very obviously have been contrary to their interests to sit back and allow such allegations against them to go unanswered.

[17] In light of the fact that after her allegations had been heard and thoroughly addressed and dealt with by the Committee, the Appellant continued to pursue by way of an Appeal allegations that she had abandoned before Committee, along with other allegations that were clearly technical in nature, I am not satisfied at all that the Appellant could be classified as a public interest litigant.

[18] On the other hand, I am also not satisfied, based on the evidence before me, that she could be categorized as a busybody either.

[19] I therefore conclude that the usual practice should be followed here and the successful parties should be paid their reasonable costs. There is no reason however for these costs to be calculated on a substantial indemnity basis. Rather, they will be calculated on a partial indemnity basis.

Calculation of Costs

[20] So what constitutes reasonable costs here?

[21] It has been said that costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. The party required to pay costs must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings. The reasonable expectations of the losing party must be considered. The losing party should not pay for over-preparation by the successful party.[4]

[22] Counsel for the three Added Parties submitted a Costs Outline claiming 16.1 hours of preparation time and 6.7 hours of time spent in court by senior counsel, for a total of 22.8 hours and 46.6 hours of preparation time and 5.9 hours of time spent in court by junior counsel, for a total of 52.5 hours.

[23] Counsel for the Appellant conceded that these times were reasonable and that the rates applied were also reasonable. He did question however whether there was a need for two counsel to be involved.

[24] I find that the use of two counsel was quite appropriate here. They were representing the interests of three separate individuals whose positions overlapped to a substantial extent but not entirely. They could have each hired their own separate counsel. Instead, they collectively retained one law firm. Most of the preparation of the case was done by junior counsel. Both counsel shared in the courtroom presentation. This was a very reasonable arrangement. I am accepting the figures prepared by these three Added Parties, subject to some minor modification.

[25] I am allowing 20 hours of the senior partner's time at $425 per hour. That totals $8,500. I am allowing 50 hours of junior counsel's time at $200 per hour. That totals $10,000. Disbursements totalled $2,526.53. These add up to approximately $21,000. Sixty per cent[5] of that is $12,600.

[26] The Added Party Brian Dorsey filed his own Affidavit setting out the time he spent preparing for and arguing the appeal and his disbursements. His time, charged at $20 per hour plus his disbursements totalled $1,580. I find that those figures are reasonable. Mr. Dorsey claimed another $500 for "inconvenience". I find that this is not something that should be included in an order for costs and I am not allowing that claim. Sixty per cent of $1,580 is about $52 short of $1,000. The time spent by Mr. Dorsey preparing for and arguing this costs application greatly exceeds that $52 difference.

Order for Costs

[27] The Added Parties Harris, Siscoe and Stack are collectively awarded costs against the Appellant fixed in the amount of $12,600.

[28] The Added Party Brian Dorsey is awarded costs against the Appellant fixed in the amount of $1,000.

Released: July 13, 2012

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] [2012] O.J. No. 626 (Ont. C.J.).

[2] Counsel directed me to Savage v. Niagara Falls (City), [2005] O.J. No. 4828 (Ont. C.J.) per Duncan J. which sets out an excellent analysis of this authority.

[3] Ibid, para. 11.

[4] Ibid, para. 12. See also Boucher v. Public Accounts Council for Ontario (2004), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 246 D.L.R. (4th) 440 (Ont. C.A.).

[5] I am accepting 60 per cent as the appropriate figure for calculating costs on a partial indemnity basis.