Court File and Parties

COURT FILE NO.: 412/05

DATE: 2006-12-28

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

RE: CITY OF TORONTO ECONOMIC DEVELOPMENT CORPORATION (Applicant) - and - INFORMATION AND PRIVACY COMMISSIONER/ONTARIO, SHOWLINE LIMITED and CITY OF TORONTO (Respondents)

BEFORE: CHAPNIK, MacKENZIE & SEDGWICK JJ.

COUNSEL: George Rust-D’Eye and Kim Mullin, for the Applicant David Goodis, for the Respondent, Information and Privacy Commissioner/Ontario Andrew M. Robinson & Megan Mackey, for the Respondent, Showline Limited

HEARD: September 26, 2006

ENDORSEMENT ON COSTS

[1] This proceeding was initially set in motion by Showline Limited’s request for access to the City of Toronto Economic Development Corporation’s (TEDCO’s) records under the Municipal Freedom of Information and Protection of Privacy Act (the Act). Showline was successful before the Information and Privacy Commissioner/Ontario (the IPC). However, TEDCO’s appeal to this Court was allowed by a majority of the Court and the parties were invited to make written submissions on costs.

[2] TEDCO seeks costs on a partial indemnity basis in the amount of $18,479.00, inclusive of fees, disbursements and GST, as against the respondent, Showline. It is not seeking costs against the IPC.

[3] Showline contends that this is not a case for costs. First, it simply exercised its statutory rights under the Act and had little practical choice but to respond to TEDCO’s application for judicial review; second, it was not awarded costs though successful before the Commission; and third, the case raised novel and complex issues of statutory interpretation against a backdrop of policy. In the alternative, Showline submits that a more appropriate amount of costs to TEDCO on a partial indemnity scale would be the sum of $12,000.

[4] In our view, there is no good reason to depart from the long-standing principle that costs follow the event. Clearly, the matter raised a rather novel issue of statutory interpretation, but that, in itself, does not justify the denial of costs to a successful party. The matter in question was of significant importance to all the parties.

[5] Showline is a private commercial entity. As noted in TEDCO’s costs submissions, the IPC, also a respondent on the application for judicial review, represents the public interest. Nevertheless, Showline mounted “a vigorous response to the application” and carried the bulk of the argument at the hearing. The fact that Showline was not awarded costs in the IPC proceedings is entirely irrelevant, particularly since the IPC has no power to award costs, in any event.

[6] In terms of quantum, the parties agree that the correct scale of costs is on a partial indemnity basis. Though there were no affidavits or cross-examinations, a fairly voluminous Record of Proceedings was filed and the hearing lasted almost a full day. Moreover, in recognition of the nature of the proceeding, TEDCO has not claimed the full amount of time spent on the file.

[7] The Bill of Costs submitted by TEDCO properly includes the experience of the lawyers, the hours spent by each, the rates claimed on a partial indemnity scale and the amounts billed. The case was argued on behalf of TEDCO by senior counsel who is highly experienced in municipal law matters and related litigation. Given his over 30 years of practice with specialized expertise in the subject matter, the maximum rate in the costs guidelines of $350.00 per hour was charged.

[8] Intermediate counsel called in 2000, whose focus is municipal and administrative law, has charged $200.00 per hour on a partial indemnity scale.

[9] We note that Showline did not seriously question the dockets and costs outline submitted by TEDCO. In its written submission, it states:

We have not had the opportunity of reviewing the dockets of TEDCO. We note that there were no lengthy affidavits or cross-examinations. The issue turned on questions of law alone.

[10] Following Boucher v. Public Accountant Council from the Province of Ontario, 2004 14579 (ON CA), [2004] 188 O.A.C. 201 (C.A.) and its codification in rule 57.01(1)(0.b), in fixing costs the award should reflect more what the court views as fair and reasonable rather than an exact measure of actual costs to the successful litigant.

[11] Taking into account the factors set out in rule 57.01(1), in particular the complexity of the proceeding, the importance of the issues, the experience of the lawyers, the hours spent, the rates sought for costs and the rates actually charged, we find that the amount claimed by TEDCO reflects a fair and reasonable assessment, within the legitimate and reasonable expectation of the parties.

[12] Accordingly, costs are awarded to TEDCO in the application for judicial review as against Showline in the all-inclusive sum of $18,479.00. No costs are awarded against the IPC for the reasons noted above.

CHAPNIK J.

Released: December 28, 2006