Court File and Parties

Court File No.: 217/04; 223/04

Date: 20050307

Ontario Superior Court of Justice

(Divisional Court)

Between: Jakobek v. The Honourable Denise Bellamy (Commissioner – Toronto Computer Leasing Inquiry); Morrish v. The Honourable Denise Bellamy (Commissioner – Toronto Computer Leasing Inquiry)

Court: Then, Gravely and Swinton JJ.

Counsel: Alan D. Gold for the Applicant Thomas R. Jakobek Morris Manning Q.C. for the Applicant Deborah Morrish H. Lorne Morphy for the Respondent Commissioner Linda R. Rothstein for the Intervenor City of Toronto

Ruling on Costs

[1] The Respondent Commissioner seeks costs of these applications for judicial review on a partial indemnity basis in the amount of $68,132.84, while the Intervenor, the City of Toronto, seeks costs on a partial indemnity basis of $50,223.24. The Applicants argue that no costs should be awarded, or the quantum should be reduced significantly.

[2] The Applicants argue that no costs should be awarded to the Respondent because this litigation raised an important constitutional question of public interest. As well, they argue that a Commission of Inquiry should not seek costs in an application for judicial review of its own decision.

[3] The Commissioner, having succeeded on the applications for judicial review, is entitled to seek costs. In the similar case of Consortium Developments (Clearwater) Ltd. v. Sarnia (City), 1998 762 (SCC), [1998] 3 S.C.R. 3, for example, costs were awarded by the Supreme Court of Canada when it dismissed a challenge to the validity and conduct of a judicial inquiry authorized under the Municipal Act.

[4] Moreover, these applications are not properly characterized as litigation in the public interest. They were brought by the Applicants in an effort to avoid testifying before the Inquiry. Therefore, there is no reason to depart from the usual practice of awarding costs to the successful party.

[5] The Applicants argue that the costs claimed are excessive. The Court of Appeal has held that judges fixing costs should consider the calculation of fees in accordance with the costs grid on an hours and fees basis, but they should then consider whether, in all the circumstances, the result is fair and reasonable (Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 24). In determining what is fair and reasonable, the Court of Appeal has stated that the expectations of the parties concerning the quantum of costs is a relevant factor for consideration (at para. 38).

[6] While this case was complex factually, the costs claimed were increased because outside counsel were retained who had to familiarize themselves with the file. Taking this into account, as well as the reasonableness of the amount which the unsuccessful parties should have to pay, costs of the Commissioner for the two applications for judicial review are fixed at $25,000.00, payable jointly and severally by the Applicants.

[7] The Applicants argue that the City of Toronto should be awarded no costs, since the City participated as an Intervenor. In our view, the Intervenor provided assistance to the Court, and costs should be awarded. However, the primary role in responding to the applications for judicial review was performed by counsel for the Commissioner. Therefore, costs to the Intervenor are fixed at $10,000.00, payable jointly and severally by the Applicants.

Released: March , 2005

Then J.

Gravely J.

Swinton J.