COURT FILE NO.: 481/06

DATE: 20070726

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Maystar General Contractors Inc., Applicant

-and-

The International Union of Painters and Allied Trades, Local Union 1819, and the Ontario Labour Relations Board Respondents

HEARD: Costs Submissions in writing April, 2007

BEFORE: Cunningham A.C.J.S.C., Lane and R. Smith JJ.

COUNSEL: Morton G. Mitchnick and Martin Sclisizzi, for the Applicant

Ronald Lebi, for the respondent Union

Leonard Marvy for the Board, respondent

E N D O R S E M E N T (C O S T S)

LANE J.:

[1] On March 20, 2007, we released reasons allowing this judicial review. The Board had certified the respondent as the bargaining agent for the applicant without regard to the applicant’s material because it had been filed after the relevant two-day time limit in section 128.1(3) of the Labour Relations Act. On reconsideration, the Board confirmed that it lacked jurisdiction to permit material to be filed late even though the lateness was caused by an administrative error in the solicitor’s office. We remitted the matter to the Board for reconsideration in the light of the Court’s findings as to the jurisdiction of the Board in the circumstances.

[2] The applicant seeks costs of $10,000. It acknowledges that a proper award is not the arithmetic total of hours times rates, but “an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an amount fixed by the actual costs incurred by the successful litigant”.[^1] Notwithstanding this concession, the applicant sets out in detail its $32,000 partial indemnity costs calculation.

[3] The applicant submits that the application involved relatively complex questions of law including Board jurisprudence on the issue of whether the Board has a discretion under section 128 of the Act to consider untimely responses. This is of particular importance to employers because they are on the receiving end of applications for certification with this short two-day response time. In the present case, the result of the administrative error and the untimely response was the certification of the respondent Union without the Board having before it the Employer’s position that it did not employ the affected workers. The applicant submits that both the Union and the Board “vigorously opposed” the application. Therefore it seeks costs against both respondents.

[4] The Board responds with a denial of having “vigorously opposed” the application, stating that it had adopted its usual stance of addressing the standard of review and not the merits. Except in the most unusual circumstances, the courts have acknowledged the role of the Board and have not ordered costs against it.

[5] The respondent Union submits that there is nothing in the present case to warrant a departure from the normal practice of this Court in labour relations matters, which counsel describes as an award in the range of $3,000 to $5,000. He submitted a list of recent labour relations cases with the amounts of the awards set out and they range from $1,000 to $5,000. He drew our attention in particular to Ontario Liquor Boards Employees Union v. Ontario Liquor Control Board 2004 Can LII 13795 where the Employer produced a bill of costs of $17,757 plus disbursements. This court allowed $5,000 all-inclusive.

[6] The court does not assess costs; it fixes them. It is not necessary to critique the hours or the rates, but rather to ask the key question:

At the end of the day, what is the total for fees and disbursements that would be a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case, which was neither complex nor lengthy?[^2] The award does not necessarily equal the sum of the parts; an overall sense of what is reasonable should be factored in to determine the ultimate award. The reasonable expectations of the paying party are also a factor to be considered. This is not a subjective inquiry, but an objective one. What would the reasonable person in the shoes of the respondent expect might be his or her exposure to costs?

[7] So far as the reasonable expectations of parties are concerned, the practice of the particular court is instructive. I agree with the submissions of the Union that the labour relations cases in this court are, on the whole, low cost cases. This may well reflect, as Union counsel submits, the absence of costs orders in labour arbitrations. Whether that is the reason or not, the normal rate is as exemplified in the cases referred to – in the range from $3,000 to $5000 – and in many cases the amount of the costs is agreed before the hearing. In the present case, I see no reason for departure from the norm. In particular, I am reluctant to raise the bar for cases generally by adopting the quantum leap suggested by the applicant.

[8] Having regard to the circumstances of this particular case, I would award costs to the Employer of $4,000 as a reasonable sum for the losing party to pay, bearing in mind the case and the norms as discussed. I would not require the Board to bear any of the costs as it did nothing but deal with the standard of review in its normal fashion. It may be that its position did not please the Employer, but that is not the point.

Lane J.

Cunningham A.C.J.S.C.

R. Smith J.

[^1]: Citing Boucher v Public Accountants Council (Ontario) (2004), 71 O.R. (3rd) 291 (C.A.) at para. 26 [^2]: See Murano v. Bank of Montreal (1998), 41 O.R. (3rd) 222, at page 247; Zesta Engineering Ltd. v. Cloutier, (2002), 21 C.C.E.L. (3rd) 161 (Ont. C.A.); Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3rd) 291 (C.A.); Moon v Sher (2004), 246 D.L.R. (4th) 440 (C.A.);