Ontario Superior Court of Justice – Divisional Court

Chuang v. Royal College of Dental Surgeons of Ontario

Date: 2006-10-03

Counsel: Morris Manning, Q.C., for the appellant; Chris Paliare and Margaret L. Waddell, for the respondent.

(DC-04-239)

Endorsement

[1] By the Court: Counsel for the respondent College have submitted a Costs Outline, both upon the appeal and the earlier motion for reinstatement of the appeal and security for costs.

[2] Carnwath, J., in the motion, ordered security for costs of $50,000 refused to lift the automatic stay of costs order and permitted Dr. Chuang to perfect the appeal. He reserved the costs of that motion to this court.

[3] Since the College was successful at appeal in upholding the major part of its decision revoking Dr. Chuang's license after a panel hearing of 31 days, its counsel submits costs should be awarded against Dr. Chuang on a partial indemnity rate on the appeal and on the motion.

[4] Counsel for Dr. Chuang submits that the appeal really dealt with issues of jurisdiction and natural justice, that the role of Mr. Galligan was a real issue, and that the appellant properly brought that issue forward on appeal and on the earlier motion.

[5] Mr. Manning who conducted the appeal with dispatch argues that the issue of costs should be resolved so as not to have a "chilling effect" on those who wish in the future to challenge the jurisdiction of a discipline body.

[6] It is true that one of the major issues on appeal was the participation of Mr. Galligan and that this novel question was unusual. At the same time, however, the conduct which lead to the revocation of Dr. Chuang's license could only be described as outrageous. Therefore, costs should be awarded against him, both of the appeal and the motion.

[7] Counsel for the respondent has claimed costs on a partial indemnity basis of $36,13 8 on the appeal and $30,251 on the motion.

[8] Two counsel attended at the appeal for one day, and one counsel attended at the motion for two hours.

[9] Counsel has outlined the actual rate charged, the hours of various counsel and lawyers, students-at-law and law clerks.

[10] The disbursements claimed as a portion of the total disbursements were $3,041.35 and are allowed at that figure.

[11] The respondent indicates costs of these amounts are justified by the complexity of the matter and the participation of two senior counsel, Mr. Paliare (on the appeal) and Ms. Rotstein (on the Motion). They also submit that the College was mainly successful, and that delay problems were caused by Dr. Chuang and not being timely.

[12] Counsel for Dr. Chuang argues that the costs are excessive and that he was successful in having the appeal reinstated. As well, he states that 30 hours for senior counsel in relation to the motion is grossly excessive.

[13] He also queries the necessity for Mr. Paliare to spend 30 hours on the appeal, which could have been done by Ms. Rotstein.

[14] In Zesta Engineering Ltd. v. Cloutier et al., [2002] O.A.C.Uned.288; 2002 25577 (ON CA), 21 C.C.E.L.(3d) 161 (C.A.), the Court of Appeal indicated that costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful party.

[15] The expectation of the parties concerning the quantum of costs is a relevant factor: Toronto (City) v. First Ontario Realty Corp. (2002), 2002 49482 (ON SC), 59 O.R.(3d) 568 (Sup. Ct.), at p. 574

[16] We must also consider that the respondent in this case was also advancing protection of the public on the facts of this case.

[17] With respect to the motion, although the appellant had some success, the necessity for the motion was his own delay; a fair and reasonable amount for partial indemnity costs will be $6,000.

[18] On the appeal, most of the success was with the respondent, but the hearing proceeded with dispatch. The appeal itself was not without its complications, but at the same time, we feel that we do not wish to inhibit the utilization of the appeal process by members of a profession by excessive costs. The costs of the appeal on a partial indemnity basis are $20,000.

[19] Costs of $26,000 with disbursements of $3,041.35 total $29,041.35.

Order accordingly.