COURT FILE NO.: 757/00
DATE: 20021129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SALLY ANNE BOUCHER, RANDOLPH BROWN, PAUL TURNER, and DAVID VENN
David Wires and Gregory Banks, for the Applicants
Applicants
- and -
PUBLIC ACCOUNTANTS COUNCIL FOR THE PROVINCE OF ONTARIO, DOUGLAS J. WHYTE, ALASTAIR SKINNER, GILBERT H. RIOU, RALPH T. NEVILLE, RONALD W. MIKULA, BARRY G. BLAY, DAVID H. ATKINS, JENNIFER L. FISHER, JERALD D. WHELAN, PRISCILLA M. RANDOLPH, BRYAN D. MEYER THOMAS A. HARDS and THE INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO
Michael D. Lipton Q.C., and Patrick Monahan, for the Public Accountants Council Robert D. Peck, for the Institute of Chartered Accountants of Ontario Cynthia Amsterdam, for the Individual Respondents
Respondents
HEARD: June 19 and September 4, 2002
REASONS FOR DECISION
EPSTEIN J.:
[1] This matter raises issues relevant to determining costs of a withdrawn or abandoned motion or application.
[2] The applicants applied for judicial review of the application, hearing and adjudication process for the granting of licenses to practise public accounting under the Public Accountancy Act, R.S.O. 1990, c. P-37 (the "PAA"). In response, the respondents brought a motion to quash the judicial review application. A few days before the date set for hearing the motion to quash, the applicants abandoned their application. The respondents seek costs of the application, including the motion to quash. The applicants do not challenge the respondents' entitlement to costs. The dispute is whether I should fix the costs or refer them to assessment. In anticipation of my decision, the parties have taken positions as to quantum if I decide to fix costs, and the terms of any assessment I might order.
Factual Background
[3] The litigation between the parties has a long history. It involves a protracted dispute about the practice of public accountancy in Ontario. Specifically, it is a dispute between Chartered Accountants, whose designation entitles them to be licensed to practise public accounting in Ontario, and those who are not Chartered Accountants.
[4] The Institute of Chartered Accountants of Ontario (the "ICAO") holds a monopoly in the field of public accounting in this province. The licensing regime is controlled by the ICAO through a statutory tribunal, the Public Accountants Council for the Province of Ontario (the "Council"). The Council is empowered to grant licenses under the PAA. Each of the applicants in this case is a Certified General Accountant. In order to practise public accountancy in Ontario, they must obtain a license by way of exemption under section 14 of the PAA.
[5] The applicants take strong exception to the current licensing system. The litigation involves their efforts to challenge and ultimately change it.
[6] The applicants initially brought a motion before the Council asking it to disqualify itself, by reason of "interest", from hearing and adjudicating their applications for licenses (the "Disqualification Motion"). In the motion, the applicants also asked Council to declare that this court appoint twelve persons not disqualified by interest to hear and adjudicate a second motion (the "Constitutional Motion") in which the applicants were to seek a declaration that a certain subsection of the PAA was unconstitutional.
[7] On October 22, 1999, the Council decided that the Disqualification Motion was premature since the applicants had not yet submitted applications for an exemption under the PAA. The Council directed the applicants to complete their applications for licensure and then if the applicants were dissatisfied with the Council's decision on the merits of their applications, they had a right of appeal to the Divisional Court. Since the applicants were unsuccessful in their Disqualification Motion, they did not proceed with the Constitutional Motion.
[8] The applicants did not seek judicial review of the Council's decision of October 22, 1999. Rather, they commenced a fresh proceeding under the Public Officers Act, R.S.O. 1990, c. P-45 (the "POA") seeking an order appointing twelve disinterested persons to hear and adjudicate their applications for licensure under the PAA the ("POA proceeding").
[9] At this point I note that a few years earlier two individuals, Moynes and Potter, had applied for licenses. On March 5, 1997 the Council denied their applications. Moynes and Potter appealed to the Divisional Court and those appeals remained outstanding as of the commencement of the POA proceeding.
[10] On August 22, 2000 Lax J. ordered the POA proceeding stayed on the ground that the court lacked jurisdiction under that statute to grant the remedy sought. The learned motions judge noted that the applicants had specific remedies available to them at law regarding their bias allegations. Lax J. noted that Moynes and Potter, who had actually applied for licenses and been turned down, had launched appeals of the Council's decisions and those appeals remained outstanding as of August 2000. As for the applicants in this proceeding, in the event they elected to apply to the Council for licenses under subsection 14(2) of the PAA, they too had a full statutory right of appeal under section 21 of that Act. Lax J. further noted that the applicants could pursue a judicial review of the October 1999 decision in which their Disqualification Motion was found to be premature.
[11] Notwithstanding Lax J.'s suggestions, the applicants commenced this judicial review application in December of 2000 in which they proposed a general inquiry into the process for the granting of licenses to practise public accounting. Additionally, they sought a declaration that subsection 24(1)(b) of the PAA was inoperative in relation to them. The effect of such an order would have been to permit the applicants to practise public accounting in Ontario without the necessity of obtaining a license of any kind.
[12] The respondents reacted by indicating they were going to bring a motion to quash or stay the judicial review application on the basis it was premature (the "Prematurity Motion"). During the months of April through August, counsel for all parties corresponded about these and other issues having to do with timing.
[13] In May of 2001, the respondents asked the Divisional Court for 3 days in October to hear the Prematurity Motion and obtained a date. The applicants then advised the respondents that they wanted the Prematurity Motion heard with the pending statutory appeals and so the date of the motion was changed. On August 13, 2001 the respondents sent their Notice of Motion on the Prematurity Motion to the applicants and asked if the applicants intended to move to consolidate. It was not until December 5, 2001 that counsel for the applicants advised the respondents they had received instructions to bring a motion to consolidate with the Moynes and Potter appeal. The date set for the hearing of the consolidation motion was January 22, 2002.
[14] On December 12, 2001 the respondents served their Notice of Motion in the Prematurity Motion. On January 4, 2002 the applicants delivered their Notice of Motion to consolidation.
[15] By order dated January 24, 2002 Dunnet J. dismissed the motion to consolidate.
[16] On February 25, 2002 the statutory appeals of Moynes and Potter and others were dismissed on the consent of the parties.
[17] Starting on February 27, 2002, in light of the results of the motion to consolidate, the respondents' counsel returned to the issue of dates for the Prematurity Motion. The dates of May 27 through 29, 2002 were obtained from the Divisional Court and the motion records of the various respondents were served on March 4, 6, and 23, 2002.
[18] On May 8, 2002 counsel for the applicants wrote a letter to respondents' counsel advising that the applicants had given instructions to agree to a withdrawal of the application for judicial review and a dismissal of the motion to quash, both on a without costs basis.
[19] On May 10, 13, and 14, 2002 the respondents replied indicating essentially that they would consent to the termination of the proceedings but only upon payment of costs. In their correspondence, counsel for the respondents made it clear that pending resolution of the matter, they would be continuing to prepare for the hearing that was set to start within days. In a letter dated May 13, 2002, Ms. Amsterdam, counsel for the individual respondents, put the applicants on notice that she would be seeking recovery of all further costs incurred to finalize and serve their materials while the matter remained unresolved.
[20] Mr. Lipton, on behalf of the Council, served his materials on May 14, 2002 and Ms. Amsterdam served hers on May 16, 2002. On May 17, 2002, counsel for the applicants, Mr. Wires, served a Notice of Abandonment of the judicial review application.
[21] The parties then made arrangements to deal with the issue of costs.
The Issues
[22] As previously mentioned, argument proceeded on the issues as follows:
Should I fix costs or order that they be referred for assessment?
If I fix costs, what are the appropriate considerations and ultimately what is the appropriate amount?
If I refer the costs for assessment, on what terms should the referral be made?
The Arguments
Public Accountants Council for the Province of Ontario (the “Council”)
[23] Mr. Lipton submits that his client is entitled to the costs of the application including the costs of the motion to quash. He argues that I should award these costs on a substantial indemnity basis and that I should fix them and make them payable forthwith. The amount of costs he seeks on behalf of his client, including fees, disbursements, and GST, is $92,112.33 on a substantial indemnity scale or $88,896.45 on a partial indemnity scale.
[24] Mr. Lipton's argument that the costs in favour of his client should be awarded on a substantial indemnity is premised on what he describes as unfounded allegations of improper conduct prejudicial to the character and reputation of Council members. He argues that to strike recklessly at the integrity of a professional is a serious matter that should attract serious consequences in order to discourage such action.
[25] According to Mr. Lipton, the applicants sought to support the existence of a "reasonable apprehension of bias" by making numerous unfounded allegations of improper and dishonest conduct against the Council. They accuse Council members not only of partiality but also of corruption. Mr. Lipton further submitted that when allegations of this nature are made against professionals carrying out their professional duties, a higher cost order is warranted.
[26] Further, it is submitted that in bringing the application itself, the applicants took a step that was improper and vexatious. Lax J. had observed, in dismissing the POA proceeding, that the applicants had specific remedies available to them regarding their bias allegations. These remedies included applying for exemption from the usual requirements for licensure and, if unsuccessful, applying to the Divisional Court. Alternatively, they could have pursued judicial review of the October 1999 decision of the Council that found the Disqualification Motion to be premature.
[27] Mr. Lipton says that disregarding Lax J.'s advice by bringing this application, combined with abandoning it at the last moment, demonstrates that the application was commenced "without good reasons and was totally unnecessary". This, he submits, is ground for an award of costs on a substantial indemnity scale.
[28] In terms of whether I should fix costs or refer them to assessment, Mr. Lipton argues that it is a presumptive rule that costs on a motion are to be fixed by the court and ordered payable forthwith. According to the Rules of Civil Procedure, costs should only be referred to assessment in "exceptional cases". Mr. Lipton submits that this is not such a case.
ICAO
[29] The ICAO also asks for its costs on a substantial indemnity scale. Mr. Peck, counsel for the ICAO, seeks costs in the amount of $44,252.10 on a substantial indemnity basis or $38,752.10 on a partial indemnity basis (including fees, disbursements, and GST).
[30] The ICAO adopts the submissions made by Mr. Lipton on behalf of the Council.
[31] Mr. Peck argues that the allegations leveled against his client are serious and unsubstantiated, and this ought to be reflected in an appropriate costs order. He claims that the applicants made allegations of improper conduct against the Council and its individual members and then proceeded to allege that they were all mere puppets of the ICAO. The “puppet-master” (ICAO), according to the Notice of Application, used the "threat of discipline", publicly exhorted the ICAO councilors to oppose granting licenses to the CGA applicants, and directly interfered with matters before the Council. Since the Chartered Accountants Act, 1956, S.O. 1956, c.7 that continues the ICAO is a public act and the ICAO is responsible to the legislature through the Attorney-General and as well, the ICAO is a qualifying body under the PAA, the applicants allege deliberate breaches of statutory duty and now abandon those allegations.
[32] Mr. Peck also relies on certain timing issues in support of his argument for costs to be awarded on a substantial indemnity basis. He submits that the applicants knew on February 25, 2002 that the respondents were preparing the motion to quash but they did not abandon the application until May 17, 2002. Therefore, they should substantially indemnify the respondents for needlessly causing them to incur significant costs.
Individual Respondents
[33] The individual respondents' position is that costs should be fixed and made payable by the applicants, jointly and severally, on a substantial indemnity basis, or alternatively, on a partial indemnity scale.
[34] The general thrust of the submissions of the individual respondents is similar to that of the other respondents. They submit that the applicants acted irresponsibly not only in bringing this application but also in the manner in which they pursued it and brought it to an end. They made frivolous, vexatious, and totally unfounded allegations of impropriety against certain of the individual respondents. These are allegations that strike at the heart of the integrity of the accounting profession. These reasons warrant that costs be awarded on a substantial indemnity basis.
[35] On a substantial indemnity basis, the individual respondents seek $65,846.94 and on a partial indemnity basis they claim $60,033.96 (including fees, disbursements, and GST).
The Applicants
[36] The applicants' primary submission is that I should refer the parties for assessment of costs. Mr. Wires, counsel for the applicants, argues that it is inappropriate to fix costs where one party takes the position that costs should be assessed. In the alternative, if costs are fixed, the applicants submit that the appropriate amount is $2,500 in favour of each set of respondents.
[37] If I decide to fix the costs, Mr. Wires’ has made a number of submissions to be considered. Legal and factual issues identified in Lax J.'s decision motivated the application. The applicants have acted in good faith, motivated by matters in the public interest as identified in other proceedings. The applicants contend that it would not be conducive to the proper and legal resolution of a case of significant public interest to penalize the applicants. The applicants have actually facilitated the prompt and economic disposition of issues of provincial concern and they have rendered a service to the public at large. Therefore, it follows that a cost award containing a penal component would not be appropriate.
[38] The applicants argue that costs should be awarded on a partial indemnity basis. They further argue that such costs should be limited to the respondents' receipt and review of the Notice of Application and the preparation of the Notice of Motion to quash, on the basis that the record in this proceeding was the same as in the matter heard by Lax J. in which she ordered the applicants to pay costs in excess of $100,000.
[39] To put all of this in perspective, the total amount of fees only claimed by the respondents on a substantial indemnity basis is $187,643 and on a partial indemnity basis is $173,762.50. These amounts are to be compared with the applicants' submission that the appropriate amount of fees would be in the order of $7,500.
Analysis
[40] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43 sets out the general statutory authority of a court to award costs. It provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or 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."
[41] Rule 38.08(3) of the Rules of Civil Procedure provides the specific power to award costs in an abandoned application. Unless the court orders otherwise, a respondent on whom a notice of abandonment is served is entitled to the costs of the abandoned matter.
- Fixing Costs
[42] My decision to fix costs has been significantly influenced by the recent change in the Rules with respect to costs. Section 57.01(3) of the old rules stated that “the court may fix all or part of the costs with or without reference to the Tariffs, instead of referring them for assessment, and where the costs are not fixed, they may be assessed under Rule 58.”
[43] On January 1, 2002, the new ‘costs grid’ came into effect and rule 57.01 was changed to read as follows:
(3) Fixing Costs: Tariffs – When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.
(3.1) Assessment in Exceptional Cases – Despite subrule (3), in an exceptional case the court may refer costs for assessment under Rule 58.
[44] Over the objection of the respondents, counsel for the applicants submit that I should not fix costs. They rely upon decisions such as such as Amcan Industries Corp. v. Toronto Dominion Bank, [1999] O.J. No. 853 to the effect that it is not appropriate to fix costs where one party takes the position that they should be referred to an assessment officer.
[45] Although the applicants wish the matter to be assessed, the recent amendment provides for a presumption that costs will be fixed. In my view, because the rule now incorporates this presumption, the decisions that pre-dated the amendments are no longer relevant. The court may refer costs for assessment under rule 58 only in an exceptional case. This raises the question as to what constitutes an “exceptional case”. There is no definition for “exceptional” in the Rules of Civil Procedure.
[46] Turning first to dictionary definitions, The Oxford English Dictionary defines "exceptional" essentially as "extraordinary". It defines "extraordinary" as "out of the usual or regular course or order". Black’s Law Dictionary, 5th ed. provides marginally more assistance by defining “exceptional” as conditions which are “out of the ordinary course of events”; “unusual or extraordinary circumstances”; “uncommon” or “special.”
[47] I now deal with the jurisprudence. The case law falls into two categories. Namely, those cases affected by the new costs grid as of January 1, 2002 and those where the old rules applied. Regardless of the regime, researching the jurisprudence for insight into a clear definition of "exceptional" or the test to be applied to determine if the case is "exceptional" has, at first blush, proven not to be particularly helpful. Most cases simply mention the rule and then make statement that the case is, or more likely, is not, an exceptional one.
[48] Under the old regime, the leading case is Murano v. Bank of Montreal , 1998 5633 (ON CA), [1998] O.J. No.2897, 41 O.R. (3d) 222 (Ont.C.A.) (Murano), in which Morden A.C.J.O. held that there should not be a substantive difference between costs awarded by a judge and those awarded by an Assessment Officer. He indicated that each case has its own circumstances and there were a number of considerations in deciding whether or not to fix costs or refer the parties to assessment. The key to this appears to be that the judge should receive submissions and then only if he or she is satisfied that they are in a position to do procedural and substantive justice, should costs be fixed.
[49] Against the background of this expression of the test to be applied, the Civil Rules Committee introduced the new costs grid. They did so because the awards were inconsistent, untimely, unpredictable, and not in accordance with the expense of contemporary litigation. The object of fixing costs is to avoid the delay and extra costs involved with having an assessment: Apotex Inc. v. Egis Pharmaceuticals, 1990 6829 (ON SC), [1990] O.J. No.2187, 2 O.R. (3d) 126 (Gen. Div.) (Apotex). .
[50] The Court of Appeal in the recently released decision of Delrina Corporation v. Triolet Systems Inc., 2002 45083 (ON CA), [2002] O.J. No. 3729 (Ont.C.A.) (Delrina) has provided some insight into how the phrase "exceptional case" should be interpreted. The Court reasoned that the case was not exceptional, notwithstanding that the claim was for costs of almost $900,000. In the decision the observations were made that the Rules do not contain any definition of “exceptional” and the basic rule, which clearly was intended to operate in the substantial majority of cases, is that the Court should fix costs. Drawing from the principles articulated in Murano, the Court of Appeal said that taking a functional view of the issue, it seems that a primary exception would be where it is likely that the assessment process is more suited to effect procedural and substantive justice than in the fixing process by the Court.
[51] The Court of Appeal in Delrina found it had all of the information needed to fix costs properly. Namely, the bill of costs, detailed time and expense reports, docket entries detailing the work that was done, and the disbursements.
[52] While I earlier suggested that a review of the authorities was not particularly helpful in defining "exceptional", it does assist in understanding the test to be applied. The jurisprudence makes it clear that the determination of whether a case is ”exceptional” or not is fact specific and will depend on the circumstances of each individual case. Only if the assessment process will be more suited to effect procedural and substantive justice should the Court refer the matter for assessment. There must be some element to the case that is out of the ordinary or unusual that would warrant deviating from the presumption that costs are to be fixed. Neither complex litigation nor significant amounts in legal fees will be enough for a case to be exceptional. The judge should be able to fix costs with a reasonable review of the work completed without having to scrutinize each and every docket. If that type of scrutinizing analysis is required, then perhaps, the matter would fall within the exception and be referred to assessment: BNY Financial corp.-Canada v. National Automotive Warehousing Inc, [1999] O.J. No.1273 (Commercial List, Gen.Div.) (BNY Financial).
[53] There are a number of things that I believe may contribute to a finding of an “exceptional” case. I suggest as examples - if there are complex questions surrounding the issue of costs; there has been litigation ongoing for many years or there have been numerous pre-trial motions or aspects to the litigation that the trial judge is not familiar with; very complex litigation involving numerous parties; or the dockets are not detailed and proper documentation is not provided with the bill of costs. These alone are probably not enough, but together or in conjunction with other aspects of a case may lead the case to be referred to assessment. Again, the most important thing to keep in mind is that assessments are to be rare as the purpose of the whole scheme is efficiency and to save the parties involved any additional expense. If the court is capable of fixing costs in a manner that effects procedural and substantive justice, it must do so.
[54] I add that some guidance as to the elements of procedural justice may be found in Murano where Morden A.C.J.O. set out the following principles.
The fixing of costs by a judge is not an assessment, item by item, according to the tariffs as would be done by an assessment officer;
Fixing costs does require the judge to conduct a critical examination of the work undertaken in order to determine that the costs claimed have been reasonably incurred and reflect what the court considers to be proper and appropriate in the circumstances given the complexity and significance of the proceeding; and
The procedure followed in fixing the costs should be reasonable in the circumstances of the case. This could, depending on the case, be accomplished by receipt of written submissions, or it could require a hearing.
[55] To reinforce my determination of the test to be applied in terms of whether to fix costs or send them for assessment and what constitutes an “exception” in a cost context, I turn to another decision of Morden J.A.. Niagara Structural Steel (St. Catherines) Ltd. v. W.D. Laflamme Ltd., 1987 4149 (ON CA), [1987] O.J. No. 2239 (Ont.C.A.), is a case decided with respect to the general rule of costs under rule 49.10(1) but nonetheless helpful At page 4 Morden J.A. stated:
As far as the occasions for resort to the exception are concerned, if the framers of the rules could have expressed the relevant bases or factors with any degree of comprehensive detail it may be assumed that this would have been done. Accordingly, it would be wrong, for several reasons, to attempt to do so by judicial declaration. Keeping the matter on a general plane, it can be said that resort should only be had to the exception where, after giving proper weight to the policy of the general rule, and the importance of reasonable predictability and the even application of the rule, the interests of justice require a departure.
[56] This, in my view, is how the limited jurisdiction to refer costs to assessment, provided for in the amendments to rule 57 is to be approached. The presumption is that the costs should be fixed. Only if the circumstances of the case are sufficiently unusual or uncommon that the interests of justice require costs to be assessed, should they be sent to an Assessment Officer.
[57] In the current case, counsel for the applicants argued that abandoned matters should be treated differently. I disagree.
[58] Prior to the new costs grid coming into effect, Farley J. addressed the issue of costs in an abandoned matter. In BNY Financial he fixed costs because it would be less expensive and more convenient for him to do so. In addition, because he was familiar with all stages of the proceedings including matters occurring before the trial, it was appropriate for him to fix costs. Farley J. held that in assessing the work done, the “critical examination requires a responsible analysis of the work done ... a review of the elements of the work, a testing of the dockets and an overall weighing of the value of the work, taking into account the factors enumerated in the Rules.”
[59] Does the new costs grid change anything? Although rule 58.07 states that an abandoned matter may be assessed, there is no requirement in the rules for an assessment. There is nothing special about an abandoned matter that would bring it within the exception contemplated by rule 57.01(3.1). Abandoned matters should not be treated any differently than matters that are heard and disposed of by the Court. If, in an abandoned or withdrawn matter, a judge can conduct an analysis as described by Farley J. in BNY Financial, then, in my view, there is nothing exceptional about the case and costs should be fixed. In other words, unless a reasonable review and an overall weighing of the value of the work is insufficient for procedural and substantive justice to be done, costs in an abandoned matter should be fixed.
[60] Am I able to do justice to the parties by fixing costs or does this case fall within the “exceptional” category? In the hearing before me considerable material was filed, including detailed bills of costs, and a significant amount of time was spent educating me as to the background of the proceedings. Counsel reviewed the long complicated chronology of the litigation as this history was relevant to the submissions concerning various aspects of the debate between the parties.
[61] I am mindful of the fact that I had no previous involvement in the matter. However, given the thoroughness of counsel's submissions and the detailed nature of the bills of costs, I am in a position to conduct a responsible analysis of the work done. There is no reason why the respondents' costs claims should be referred to an Assessment Officer. I am certain that I am in a position to do substantive and procedural justice by fixing costs in this case.
- The Amount of Costs
(a) The Scale of Costs
[62] As previously indicated, the respondents submit that costs should be awarded on a substantial indemnity scale based on the nature of the allegations contained in the Notice of Application as well as on the contents of the supporting affidavits.
[63] In my view this is not a case for a penal costs order. The complaints made against the respondents as particularized in the application materials do not allege fraud or improper conduct that is seriously prejudicial to the character or reputation of a party. Unlike in the cases of Mele v. Thorne Riddell (1997), 1997 12124 (ON SC), 32 O.R. (3d) 674 (Ont. Gen. Div.) and Ho v. Chak, [2000] O.J. No. 5021 (Sup. Ct.), upon which the respondents rely, the matter before me is not a situation in which allegations have been made against professional persons in the course of carrying out their professional duties and that therefore strike at the integrity of a professional. Rather, as I read the allegations contained in the application record, the allegations express concern about the make-up and operation of a licensing system to which they take strong exception. The criticisms are not leveled at the respondents as individuals or even as individual professionals, but as people who happen to be part of a system the applicants challenge and seek to change.
[64] The other ground the respondents advance in support of their claim for costs on a substantial indemnity basis is that the applicants were irresponsible commencing a proceeding that was effectively without merit in the face of other more credible options, and further by abandoning the matter at the eleventh hour. According to the respondents, this was frivolous and abusive causing them to incur substantial costs for which they should be indemnified.
[65] I agree that the chronology of the various steps the applicants have taken to challenge the licensing system does raise questions about their strategy. However, these questions do not justify a penal cost award. I say this for two reasons. First, there is evidence that other concurrent studies and proceedings factored into the applicants' litigation strategy. The landscape with respect to these related matters was in a state of flux during this application. It may well be that the applicants' decision as to what course to pursue would have been different had they been able to foresee the results of some of these other investigations and decisions. The applicants should not be penalized for their lack of clairvoyance. This leads to the second reason why a strategy that may now appear to have been ill-advised should not, by itself, attract a higher cost order. That is, absent a clear case of abuse it is not for the court to second-guess the parties' decision with respect to how to advance their interests. There is no evidence before me to support a finding that the applicants were abusing the process of the court by bringing the judicial review application at the time and in the fashion they did.
[66] I now turn to the argument concerning the applicants' last-minute withdrawal of the application. This is an aspect of the applicants' conduct that causes me considerable difficulty. It is clear that there was a period of several months during which the circumstances affecting the applicants' position regarding the judicial review had been defined. On the record before me nothing of any relevance changed between February 26, 2002 and the date in the latter part of May when the applicants formally advised the respondents that they would not be proceeding with their application. During this period the applicants knew, or ought to have known, that the respondents were preparing their submissions and were incurring substantial costs. Counsel for the respondents made it clear that they would be relying upon this delay in support of their claim for costs. Notwithstanding the numerous warnings and the vigorous submissions by the respondents with respect to this issue, the applicants failed to offer anything by way of explanation for the substantial delay in bringing the proceedings to an end.
[67] The administration of justice is constantly attempting to find ways to control costs. It is fundamentally an access to justice issue, but the escalation of costs also affects the regard the public has for the administration of justice. Conduct that interferes with these important objectives should always be discouraged. In this case, however, absent evidence that the applicants deliberately delayed communicating to the respondents their decision not to proceed with the application, I do not view the delay as warranting an award of costs on a substantial indemnity scale. While counsel for the respondents suggested that the timing was intentional in order to cause the respondents to incur greater costs, there is no evidence to support such a finding. If there were, I would not hesitate to sanction such conduct with a penal cost order. In the circumstances of this case I do not find that the timing of the events that took place in the spring of 2002 leading up to the abandonment of the application was in bad faith or amounted to an abuse of the process of the court.
[68] For these reasons, I will fix the costs to which the respondents are entitled on a partial indemnity basis.
(b) The Amounts
[69] Here there is another point of departure between the applicants and the respondents. The respondents take the position that they are entitled to claim reimbursement for all the time spent and disbursements incurred in responding to the application for judicial review and in preparing the motion to quash. Conversely, the applicants contend that the factual background and the issues raised in the judicial review and the motion to quash are the same, or at least nearly the same, as those fully argued before Lax J. As a result, the time necessary for the respondents to respond to the judicial review application and to prepare for the motion to quash was, should have been, minimal. It follows that the costs fixed should similarly be minimal.
[70] While it is apparent that the various proceedings have centered on the same complaints about the same licensing regime, the issues in each proceeding have differed. For example, the relief claimed in the matter before Lax J. was different than that claimed in the judicial review application. This different perspective requires a different analysis and different research. In addition, the various proceedings were spread over time and each new matter necessitated new preparation even in respect to issues that were the same or similar as those raised in earlier challenges to the licensing system. In these circumstances I do not consider it appropriate effectively to give the applicants a credit for costs ordered and paid in earlier proceedings
[71] I agree with what Nordheimer J. said in Basedo v. University Health Network, [2002] O.J. No. 597 (Sup. Ct.) that "it is not the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered." As mentioned earlier, counsel for the respondents filed substantial material in support of the detailed bills of costs. In addition, they took me through the various entries, in a general fashion, to explain the nature of the work done and why it was necessary. I have conducted my own detailed review of the functions performed, time spent and amounts claimed. In my view, the amounts for fees and disbursements, on a partial indemnity basis, are appropriate.
Conclusion
[72] The respondents are entitled to their costs from the applicants in the full amount claimed in their bills of costs on a partial indemnity basis as summarized in paragraph 39 of these reasons. They are also entitled to reimbursement for the disbursements claimed plus appropriate GST.
[73] There will be no order as to costs of the costs hearing.
EPSTEIN J.
Released: November 29, 2002
COURT FILE NO.: 757/00
DATE: 200211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SALLY ANNE BOUCHER, RANDOLPH BROWN, PAUL TURNER, and DAVID VENN
Applicants
- and -
PUBLIC ACCOUNTANTS COUNCIL FOR THE PROVINCE OF ONTARIO, DOUGLAS J. WHYTE, ALASTAIR SKINNER, GILBERT H. RIOU, RALPH T. NEVILLE, RONALD W. MIKULA, BARRY G. BLAY, DAVID H. ATKINS, JENNIFER L. FISHER, JERALD D. WHELAN, PRISCILLA M. RANDOLPH, BRYAN D. MEYER THOMAS A. HARDS and THE INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO
Respondents
REASONS FOR DECISION
EPSTEIN J.
Released: November , 2002