DIVISIONAL COURT FILE NO.: 697/02, 698/02
DATE: July 28, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BENOTTO S.J., DUNN AND McCOMBS JJ.
B E T W E E N:
R.N. (By His Litigation Guardian L.N.) and L.N.
J.C. (By His Litigation Guardian S.C.) and S.C.
Bryan Finlay, Q.C. Marie-Andrée Vermette, for the Applicants
E.M. Venhola for the Applicants Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes)
Diane Wintermute, for the Applicants ARCH
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, ET AL
William J. Manuel, Shaun Nakatsuru, for the Respondents
Respondents
HEARD: February 11, 2004
DECISION WITH RESPECT TO COSTS
Benotto S.J.
[1] The applicants have claimed cost of $120,000 on a partial indemnity basis. The time spent was actually $184,000 but they have claimed this lower amount. The respondents say that $30,000 is an appropriate award.
[2] The Court of Appeal recently determined that an assessment of costs on a partial indemnity basis must be subject to the “overriding principle of reasonableness.” (See:Boucher v. Public Acccountants Council for the Province of Ontario (June 22, 2004)
[3] In assessing what is reasonable, the court should not “second-guess successful counsel” as to the hours spent unless they are excessive. (See: Tri-S Investments v. Vong [1991] OJ. No. 2292)
[4] The following factors are relevant to this determination:
- The hearing for judicial review lasted 1 ½ days
- The issues argued were procedural fairness and whether the decision was patently unreasonable
- The constitutional question was adjourned
- The hearing involved two applicants and a review of six decisions
- The time span involved in those decisions was several years
- The record was voluminous
- There was duplication by counsel:
- Ms. Venhola spent 317 hours in preparation and 79 hours in preparation for the hearing which she attended and which was argued by Mr. Finlay
- 3 counsel attended the cross-examination
[5] In light of these factors, and the recent directive from the Court of Appeal, the costs are fixed at $60,000.
Benotto S.J.
Dunn J.
McCombs J.
Released:
DIVISIONAL COURT FILE NO.: 697/02, 698/02
DATE: July 28, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
R.N. (By His Litigation Guardian L.N.) and L.N.
J.C. (By His Litigation Guardian S.C.) and S.C.
Applicants
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, ET AL
Respondents
ENDORSEMENT FOR COSTS
Released: July 28, 2004