COURT FILE NO.: 06-DV-1222
DATE: By Written Submissions
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
CERTIFIED GENERAL ACCOUNTANTS ASSOCIATION OF CANADA
Bruce Carr-Harris and Gerry H. Stobo, for the Applicant (Respondent)
Applicant (Respondent)
- and -
CANADIAN PUBLIC ACCOUNTABILITY BOARD
Robert W. Cosman and Murray Braithwaite, for the Respondent (Moving Party)
Respondent (Moving Party)
HEARD: By Written Submissions
DECISION ON COSTS
M. Linhares de Sousa J.
[1] I have now had the opportunity to consider the written submissions of counsel on this matter. Rule 57.01 of the Rules of Civil Procedure lists the factors to be considered by the Court in exercising its discretion to award costs. The Rule reads as follows:
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing,
(a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
[2] The proceeding before me was a preliminary motion brought by the Canadian Public Accountability Board (“CPAB”) to quash an application for judicial review brought against it by the Certified General Accountants Association of Canada (“CGA-Canada”). For the reasons given in my decision, the CPAB failed in its motion resulting in the complete success of the motion going to CGA-Canada. As the successful party on the motion, CGA-Canada is certainly entitled to its costs of the motion unless the Court finds a reason to disentitle it to costs. I can find no such reason.
[3] No offer to settle presented by either side was brought to my attention in the written submissions. I therefore must assume there were none for this Court to consider.
[4] In his written submissions, counsel for CGA-Canada indicated that when the motion to quash the judicial review application was first brought, he wrote to counsel for CPAB recommending that the issues raised in his motion be delayed and heard by the panel of Divisional Court as provided for under section 21(5) of the Courts of Justice Act. This recommendation was refused by CPAB and the motion proceeded. It is still open to either party under section 21(5) of the Courts of Justice Act to move before a panel of the Divisional Court to set aside my decision on the motion and it would appear that CPAB intends to bring such a motion in that they are submitting that the question of costs should be reserved to the panel of the Divisional Court hearing the motion to set aside the order. It would be hard to deny that this motion did not delay the main judicial review application.
[5] I agree with counsel for CPAB that Rule 20.06(1) of the Rules of Civil Procedure does not apply to the facts of this case. It did not involve a motion for summary judgment.
[6] I also agree with counsel for CPAB that on the facts of this case there is no proper legal basis for making an order of costs in this matter on a substantial indemnity basis.
[7] I have considered the bill of costs submitted by counsel for CGA-Canada. I have considered the experience of the three counsel involved in the matter and the time expended by them in the preparation for this motion and in the court appearance required to defend against the motion. An approximated total of 310 hours for the preparation and argument of this one-day motion may be on the high side. I note, like CGA-Canada, that CPAB has chosen not to give this Court its own costs outline in support of its position that the quantum of costs claimed by CGA-Canada is excessive for a one-day preliminary motion preceded by a single cross-examination on affidavits.
[8] Both parties agree that the issues raised in this motion were both complex and important. The motion was relatively complex procedurally and substantively. In order to deal with the preliminary motion it was necessary to delve into the factual and historical context of this dispute which will ultimately be decided by the Divisional Court on the application for judicial review. There is no question that much of this complex work will be used again on the hearing of the main application.
[9] I agree with counsel for CGA-Canada that the issues on the motion were immensely important to its professional constituents and the work they do as well as to the future work which they may do. They are equally important to the integrity and the continued work of the CPAB.
[10] The last factor to consider is the question of expectation of costs. What amount of costs could the unsuccessful party “reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”? The proceedings were a complex and important one-day motion before a single judge of the Divisional Court. In answer to that question, I conclude that even at the partial indemnity level, requested costs of $70,274.58 are excessive and beyond what can be reasonably expected for this kind of proceeding.
[11] After a consideration of all of the above reasons I award CGA-Canada its costs in the motion which I fix at $35,000. In addition, it is entitled to total disbursements fixed at $4,655.92. Costs and disbursements are payable forthwith by CPAB.
M. Linhares de Sousa J.
Released: February 27, 2008
COURT FILE NO.: 06-DV-1222
DATE: By Written Submissions
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
CERTIFIED GENERAL ACCOUNTANTS ASSOCIATION OF CANADA
Applicant (Respondent)
- and –
CANADIAN PUBLIC ACCOUNTABILITY BOARD
Respondent (Moving Party)
DECISION ON COSTS
M. Linhares de Sousa J.
Released: February 27, 2008