COURT FILE NO.: 314/03
DATE: 20040218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, MEEHAN AND LINHARES de SOUSA JJ.
B E T W E E N:
HEIDI BYL, LITIGATION GUARDIAN OF COREY BYL, WILLIAM F. VAUGHN, LITIGATION GUARDIAN OF BRENT VAUGHN, ST. CATHARINES ASSOCIATION FOR COMMUNITY LIVING and COMMUNITY LIVING ONTARIO
Applicants
- and -
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
Respondent
Andrew J. Roman and Margaret R. Sims, for the Applicant SCACL
Dennis Brown and James Kendik, for the Respondent
HEARD: June 2, 2003
MEEHAN J.
[1] The Applicant submits that it is entitled to costs on a substantial indemnity basis. A Bill of Costs of counsel on the application and the Applicants St. Catharines’ lawyers totaled $150,386.33. G.S.T. is included in this amount.
[2] The Respondent claims such an amount is excessive and that costs should be awarded on a partial indemnity basis.
[3] The Respondent also indicates that the Bill of Costs of the Applicant on that basis including G.S.T. is excessive at $118,258.51.
[4] Her Majesty the Queen in the Right of Ontario indicates the Ministry of Community and Social Services was acting in the public interest when it cancelled its contract with the Applicant and directed its agent to take over the Applicant’s real property, chattels and hundreds of employees as well as its patient-clients.
[5] The Applicants have provided docket accounts and hourly rates. The account of Sullivan Mahoney is said to be expressed on a discounted rate because of the Applicant’s charitable status.
[6] The Reasons for Judgment from which leave was refused by the Court of Appeal indicate the Applicant was treated unfairly and the seizure was without statutory or contractual authority. It is a charitable organization run by a voluntary board of directors. After the seizure, it attempted to negotiate with the Ministry and was rebuffed. It was forced then to bring this application. Argument was even advanced that it acquiesced in its own destruction.
[7] The issues were matters of substantial importance, both to the Applicant and other members of the Association of Community Living and the public.
[8] It appears that other than charitable contributions, the Applicant has no other way of recouping its costs.
[9] There is ample precedent for awarding substantial indemnity costs against the Crown. Meek v. Northwest Territories (Minister of Personnel) (1992), 14 C.P.C. (3d) 360, Re Centenary Hospital Association (1989), 69 O.R. (2d) 447.
[10] This is a case where nothing in the conduct of the Applicant contributed to the actions of the Ministry. It was reasonable for it to bring this application.
[11] The Court of Appeal awarded costs on a substantial indemnity basis where government action caused the Applicants to resort to the Courts. (Canada (Attorney General) v. Wauzhushk Onigum Band, [2003] O. J. No. 4655.
[12] The Applicant is entitled to its costs on a substantial indemnity basis.
[13] In regard to amount, Her Majesty objects to sums of $45,000 for preparation of affidavits and states it duplicates the local law firms’ work. It, as well, objects to $5,000 claimed for time spent convincing the Crown’s agent not to intervene, and as well, $3,000 for reviewing the decision and $4,000 for preparation of the Bill of Costs.
[14] The Respondent, as well, submits that a Rule 21 motion returnable at the same time was unnecessary and only added confusion. As well, it indicates the Province is exempt from paying G.S.T. on legal fees. No statutory authority was provided for this proposition. As far as the G.S.T. question is concerned, the Respondent is indemnifying the Applicant for its legal fees which must include G.S.T.
[15] This matter was unique and called for a great deal of affidavit material to combat allegations ranging from failing to notify the Regional Director to contributing to the deaths of several patients. As well, the Ministry was purporting to exercise powers granting it some sort of financial lien upon the Applicant’s property.
[16] Except for one unfortunate death, no evidence was presented at the hearing which should lead anyone to conclude the Applicant or its employees acted improperly.
[17] The contract, in question, involved millions of dollars on an annual basis. The well being of hundreds of employees and patients was at issue as well.
[18] Accepting that there was some duplication of effort between the Applicant’s law firms and that the Rule 21 motion was unnecessary, we do not propose to review each item in the docketed accounts.
[19] Despite the Respondent’s submission, we are not aware of a $15,000 “limit” for a one-day hearing in the Divisional Court. These proceedings were difficult and complex and the late filing of the Respondent’s Factum did not simplify the Applicant’s task.
[20] The Court of Appeal in Zesta Engineering Ltd. v. Cloutier 2002 25577 (ON CA), [2002] O.J. No. 4495 November 27, 2002 docket C35856 indicated that the costs awarded should reflect more what the Court views as a fair and reasonable amount….rather than any exact measure of the actual costs.
[21] While that statement dealt with an award of partial indemnity costs, it was applied in a substantial indemnity situation by the Divisional Court in Stairs v. Ontario Teachers’ Pension Plan Board 2003 32334 (ON SCDC), [2003] O.J. No. 605.
[22] The costs are fixed at $120,000 plus G.S.T. on a substantial indemnity basis.
MEEHAN J.
LANE J.
LINHARES de SOUSA J.
Released:
COURT FILE NO.: 314/03
DATE: 20040218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, MEEHAN AND LINHARES de SOUSA JJ.
B E T W E E N:
HEIDI BYL, LITIGATION GUARDIAN OF COREY BYL, WILLIAM F. VAUGHN, LITIGATION GUARDIAN OF BRENT VAUGHN, ST. CATHARINES ASSOCIATION FOR COMMUNITY LIVING and COMMUNITY LIVING ONTARIO
Applicants
- and -
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
Respondent
COSTS JUDGMENT
MEEHAN J.
Released: February 18, 2004