COURT FILE NOS.: 615/02 & 623/02
DATE: 20050606
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, GROUND and PITT JJ.
B E T W E E N:
MARK SMITH
Complainant
(Appellant in Appeal)
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Commission
(Appellant in Appeal)
- and -
MARDANA LTD. (c.o.b. MR. LUBE) and KEELESTAFF LTD. (c.o.b. MR. LUBE) and ISWOOD LTD. (c.o.b. MR. LUBE) and DON STRYNADKA and ROB NEAL
Respondents
(Respondents in Appeal)
Marie Chen for the Complainant (Appellant in Appeal)
Raj Dhir for the Commission (Appellant in Appeal)
Stephen A. Bernofsky for the Respondents (Respondents in Appeal)
Reasons released: February 8, 2005
COSTS ENDORSEMENT
BY THE COURT
[1] The Appellant, Smith, seeks costs in the amount of $42,000 and the appellant, Ontario Human Rights Commission, seeks costs in the amount of $15,000 to $22,500 respectively. The respondent submits that both claims are excessive in light of the nature of the issues raised on appeal and reasonable preparation to deal with them.
[2] We have read and considered the submissions of the parties, and we have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. We have also considered the principle recently affirmed in Boucher v. Public Accountants Council for the Province, 2004 14579 (ON CA), [2004] O.J. No. 2634, 188 O.A.C. 201 (C.A.); Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.); and Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 9852 (ON CA), [2004] O.J. No. 2102, 187 O.A.C. 78 (C.A.) that costs must be reasonable, and fair to the losing party, whose reasonable expectations must be taken into account.
[3] Clearly, the issues were important to the parties, and indeed in and of themselves. They were also complex, involving a broad range of questions in the interpretation of the Human Rights Code.
[4] With respect to preparation, one unusual circumstance, the “accidental loss” of the record by the Tribunal, caused the appellants to expend considerably more time and incur more disbursements than would normally have been necessary.
[5] We note, however, that the loss was not occasioned by any act or failure to act of the respondents. We also recognize, in that regard, that the proceedings at the Tribunal were lengthy and protracted requiring 14 hearing days over a period of approximately 7 months.
[6] Nevertheless, we are of the view that the preparation expended was in excess of what was warranted in view of the issues raised on this appeal and the involvement of two appellants.
[7] We agree with the respondents that the similarity of interests and of the position of both appellants is a factor to which consideration must be given. See e.g. Pearson v. Inco Ltd., [2002] O.J. No. 3532 (S.C.J.); Trans-Canada Pipelines v. Potter Station Power Limited Partnership (2002), 20 C.P.C. (5th) 382 (S.C.J.); and Ramsinghani v. 1177325 Ontario Ltd., [2004] O.J. 3676 (S.C.J.).
[8] We do not understand the appellants to be seeking costs on a substantial indemnity scale, nor do we think such a scale would be warranted in the circumstances.
[9] Accordingly, applying the principles referred to above and mindful of the admonition of the Court of Appeal in Boucher, supra, in our view it is fair and reasonable in the circumstances of this case to award costs on a partial indemnity scale in the following amounts:
(a) to the Ontario Human Rights Commission: $10,000.00 inclusive of disbursements and G.S.T.; and
(b) to Mark Smith: $10,000.00 inclusive of disbursements and G.S.T. payable within 30 days of the release of this endorsement.
Then J.
Ground J.
Pitt J.
Released:
COURT FILE NOS.: 615/02 & 623/02
DATE: 20050606
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, GROUND and PITT JJ.
B E T W E E N:
MARK SMITH
Complainant
(Appellant in Appeal)
- and -
ONTARIO HUMAN RIGHTS COMMISSION
Commission
(Appellant in Appeal)
- and -
MARDANA LTD. (c.o.b. MR. LUBE) and KEELESTAFF LTD. (c.o.b. MR. LUBE) and ISWOOD LTD. (c.o.b. MR. LUBE) and DON STRYNADKA and ROB NEAL
Respondents
(Respondents in Appeal)
COSTS ENDORSEMENT
BY THE COURT
Released: June 6, 2005