Brown v. Hudson’s Bay Company, 2014 ONSC 5079

COURT FILE NO.: CV-09-1924 DATE: 2014-09-02

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

COLLINGTON BROWN Self-represented Plaintiff/Moving Party

• and -

THE HUDSON’S BAY COMPANY (HBC), LINDA MERCADANTE, JANE DOE a.k.a. LAURA, BRAMALEA CITY CENTRE, CANSTAR SECURITY SERVICES INC., MICHAEL MAGNAYE, RYAN HARNEST, AMANDA ELIZABETH BALNE, SHAUN McGRATH, AND RAPHAEL WAUGH

Barry Cox, (assisted by Nicola Brankley, Student-at-law), for the Defendants/Respondents Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Wauch Defendants/Respondents

Costs Endorsement Price J

NATURE OF MOTION

[1] Collin Brown brought this action to recover damages for injuries he sustained in a struggle with mall security guards (“Canstar Security”) at a Hudson’s Bay Store, while he waited for one store manager to consult another as to whether he should be given a refund for a vacuum cleaner he had bought there. He claims he was falsely arrested and that, in any event, the security guards used excessive force, and thereby assaulted him.

[2] On July 25, 2013, Daley J. made an order, on a motion by Canstar Security and the other remaining defendants in the action (collectively, “Canstar”), requiring Mr. Brown to pay $30,000.00 into court as security for Canstar’s costs of discoveries and a pre-trial conference. I granted Mr. Brown leave to appeal from that decision to the Divisional Court, principally on the ground that the motion judge had not referred, in his reasons, to the evidence of excessive force that could support a finding in Mr. Brown’s favour on the assault claim, notwithstanding the legality of the arrest, and secondarily, on the ground that it was not clear, from the motion judge’s reasons, whether, in the first stage of his analysis of rule 56.01(1)(e), he had required Mr. Brown to prove that his action has merit without first requiring Canstar to prove that there was good reason to believe that the action was frivolous and vexatious.

[3] I held that allowing the motion judge’s decision to stand could deny Mr. Brown access to justice and create uncertainty as to who bears the onus, in a motion for security for costs, of demonstrating that the action does or does not have merit. Additionally, a finding that Mr. Brown’s action was frivolous and vexatious based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act[^1] was conducted in a lawful manner and with reasonable force. I concluded that these are matters of public importance that deserve the attention of the Divisional Court.

ISSUE

[4] The court must determine:

[5] Whether the costs of the motion for leave to appeal should be ordered paid at this time, or should be ordered paid “in the cause” and left to the discretion of the panel of the Divisional Court hearing the appeal.

[6] If costs should be ordered paid at this time, the amount of costs that should be paid.

POSITIONS OF THE PARTIES

[7] Mr. Brown claims costs in the amount of $9,401.20 on a substantial indemnity scale for his successful motion for leave to appeal. Canstar argues that the costs of the motion should be ordered payable in the cause, and left to be determined by the panel of the Divisional Court that ultimately hears the appeal.

ANALYSIS

a) Timing the determination and payment of costs of a motion for leave to appeal to the Divisional Court

i. The discretion to order costs

[8] The Courts of Justice Act provides:

131(1) Costs – Subject to the provisions of an Act or rules of court, the costs of an incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

ii. Objectives of a costs order

[9] An appropriate costs order balances two conflicting principles:

a. A blameless litigant who is successful in a proceeding should not be required to bear the costs of prosecuting or defending the proceeding.

b. Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all the costs of their opponent.

[10] The Supreme Court of Canada has held that the ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.[^2]

[11] While indemnifying the successful litigant is the paramount objective of a costs order, the Ontario Court of Appeal has identified other objectives, including encouraging settlement, discouraging frivolous proceedings and unnecessary steps in litigation,[^3] and preserving access to justice.[^4]

iii. General principles to be applied

[12] In Andersen v. St. Jude Medical Inc.,[^5] the Ontario Divisional Court set out several principles that must be considered when awarding costs:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC 2005 1042 (ON C.A.), (2005), 75 O.R. (3d) 638 (C.A.).

2. A consideration of experience, rates charged, and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).

4. The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano v. Bank of Montreal 1998 5633 (ON C.A.), (1998), 41 O.R. (3d) 222 (C.A.), at p. 249.

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON C.A.), per Armstrong J.A., at para. 26

[13] The court should, in the timing and implementation of its costs orders, seek to achieve the same objectives that underlie its determination of who should pay the costs of litigation and in what amount.

[14] At what point costs should be determined

[15] Rule 57.03 (1)(a) of the Rules of Civil Procedure provides:

57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

[16] Master Beaudoin, as he then was, in Taske Technology Inc. v. PrairieFrye Software Inc., stated, “an order for immediate payment of costs is designed to bring home to litigants the expense of motions and should be departed from only in “special circumstances.”[^6] In Axton v. Kent, the Divisional Court concluded: “It is salutary practice to order costs payable forthwith on interlocutory orders unless the justice of the case suggests otherwise.” [^7]

iv. The Family Law equivalent of Rule 57.03 (1)(a)

[17] The objectives of costs orders are the same in the family law context as in the civil law context. In Serra v. Serra, the Ontario Court of Appeal cited Fong v. Chang in holding that modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.[^8]

[18] Rule 24(10) of the Family Law Rules is the equivalent of Rule 57.03(1) of the Rules of Civil Procedure. Rule 24(10) provides:

24(10) Costs to be decided at each step – Promptly after each step in the case, the judge who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.[^9]

[19] Courts have observed that the rationale underlying Rule 24(10) is that when parties get prompt feedback about the real cost of litigation at each step of their case, it serves as a valuable reality check and as persuasive inducement to engage in negotiations with a view to settlement.[^10]

[20] In Cole v. Cole and Howell (No. 3), it was observed that the judge who hears a motion or conducts a conference is able to make a first-hand observation of the preparations by the parties and their lawyers for that step of the proceeding, to hear submissions by the lawyers, and to determine the state of preparation and the reasonableness of each party’s position during that step.[^11] To ask a trial judge, months or years later, to assess costs for those earlier appearances not only places an unfair burden on the trial judge but would be directly contrary to subrule 24(10).

v. Policy reasons for deferring the determination of costs

[21] An exception to the rule which presumptively requires a judge who hears a motion to make an immediate determination of responsibility for its costs is sometimes made in summary judgment motions, where the result of the motion was “too close to call”. In Marini v. Muller, Nordheimer J. ordered costs to be payable in the cause in such a case. He stated:

In my view, in a case such as this where the result of the summary judgment motion was what might fairly be referred to as a “close call”, the appropriate result is to leave the costs in the cause.[^12] [Emphasis added]

[22] The exception made in summary judgment motions considered “too close to call” is consistent with the objective of indemnifying the successful litigant for his costs. It recognizes that the trial judge, who determines the merits of the action, is sometimes in the best position to determine who should have been responsible for the costs of a summary judgment motion which turns, in part, on a preliminary consideration of the merits of the action or defence.

[23] A further exception to the rule requiring immediate determination of the costs of a motion is sometimes made in motions for leave to appeal to the Divisional Court from an interlocutory order. This exception is based on the fact that the judges who determine an appeal are sometimes in the best position to determine who should have been responsible for the costs of a motion for leave to appeal.

[24] In Hanemaayer v. Freure, Fedak J. stated that it was a practice, on motions for leave to appeal to the Divisional Court, for the motion judge to order the costs of the motion to be paid “in the cause”; that is, by the party who is ultimately successful in the appeal, and to leave the determination of those costs to the panel of the Divisional Court hearing the appeal. He stated:

Having considered the short written submissions of the parties, I am satisfied that where a moving party succeeds in a motion for leave to appeal, the court generally awards costs in the cause, or reserves costs to the appellate court. (see General Accident Assurance et al v. Chrusz et al., [1997], O.J. No. 6269 (Gen. Div.); SAF Driving Systems Inc. v. O’Brien, [1990] O.J. NO. 2364 (Gen. Div.); Symms v. United Church of Canada, [1993] O.J. No. 2974 (Gen. Div.) and Toms v. Agro, [1992] O.J. No. 398 (Gen. Div.))

Where leave to appeal is granted, but the appeal is ultimately dismissed, the appellate court has the discretion to award costs to the respondent of both the appeal and the motion for leave to appeal (Toms v. Agro, supra). This is consistent with the principle that costs are normally awarded in accordance with result of the proceeding. (See Rule 57.0l of the Rules of Civil Procedure)[^13]

[25] Fedak J., in Hanemaayer, in finding, in the case before him, no reason to depart from the practice of ordering costs in the cause, set out the rationale for such an order. Several of the reasons he gave are relevant in the context of Mr. Brown’s case. Fedak J. stated:

I am further satisfied that in the present case there is no reason to deviate from the general rule stated above for the following reasons:

(a) Grounds on which leave to appeal an interlocutory order as set out in Rule 62.02(4) of the Rules of Civil Procedure are partially discretionary and relate primarily to issues of public importance or the administration of justice. They do not therefore relate to the merits of the appeal itself. The test for determining whether or not leave should be granted has little or no impact on whether or not the moving party will ultimately be successful on its appeal;

(b) Bearing in mind the discretion that motion judges possess, it is not always so clear that the motion for leave will not be opposed;

(c) There is no evidence to substantiate the plaintiffs’ submission that the defendants’ opposition to the motion was a tactical decision;

(d) There is no question that requiring leave to appeal serves a gatekeeper function for the appellate court. In this way the court regulates access to the appeal process, thereby preserving scarce judicial resources. This supports the view that costs of a motion for leave to appeal should be awarded in the cause;

(e) The requirement that the court consider whether or not there is “good reason to doubt the correctness of the decision” is not a valid reason to depart from the normal rule of awarding costs in the cause in the appeal; and

(f) When one of the reasons in granting leave to appeal is an apparent discrepancy in legal interpretation by learned authors, the determination of a cost award should reflect the result. This is consistent with the principle that costs are normally awarded in accordance with the result of that proceeding as envisioned in Rule 57.01 of the Rules of Civil Procedure.[^14]

[26] Ray J., in Les Equipements de Ferme Curran Ltee/Curran Farm Equipment Ltd. v. John Deere Limited,[^15] cited Fedak J.’s decision in Hanemaayer, as well as Orkin’s Law of Costs (2nd edition), which references Hanemaayer for the principle.[^16]

vi. Who is best placed to determine the costs of a motion for leave to appeal from an order granting security for costs?

[27] An application for leave to appeal, for purposes of costs, is not considered to be part of the appeal proceeding itself, even though it is the first threshold step in an appeal. In Société SEPIC S.A. v. AGA Stone Ltd., the applicant applied to a judge of the Court of Appeal for leave to appeal from the refusal of an order for certiorari. The respondent moved before the same appellate judge for security of costs of both the appeal and the application for leave to appeal. Osborne J.A. held that the Court of Appeal did not have inherent jurisdiction to grant security for costs of an appeal. He then considered whether he derived such jurisdiction from Rule 61.06, which provided that “a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.”[^17]

[28] Osbourne J.A. held that an application for leave to appeal is neither a part of the appeal itself or a part of the proceeding which resulted in the order appealed from. He stated:

The first question that arises is whether the phrase "in an appeal", as found in rule 61.06(1), includes the preliminary step of a motion for leave to appeal, where such leave is required. Even if the introductory phrase "in an appeal" is to be construed broadly, the concluding words of rule 61.06 refer only to security for the costs of the "proceeding" (i.e., the original action or application) and the appeal. It seems to me that it would require a somewhat arbitrary expansion of the terms of the rule to characterize the costs of a motion for leave to appeal as a cost of the appeal.

In Mutual Life Insurance Co. of Canada v. Buffer Investments Ltd., (1986), 56 O.R. (2d) 480 (S.C.), Salhany D.C.J. considered the availability of a security for costs order on a motion to reopen a final order of mortgage foreclosure. He concluded that such a motion was one made within a proceeding and not an application that commenced a proceeding. He thus held that rule 56.01 could not be invoked and that he therefore did not have jurisdiction to order that security be posted.

The motion in Buffer Investments is somewhat different from a motion for leave to appeal. In circumstances such as exist here, a motion for leave to appeal is the first threshold step to an appeal. The Buffer Investments decision is, however, illustrative of what appears to be a general tendency to construe the security for costs provisions of the Rules somewhat strictly: see Brain-Hulst Ltd. v. H.E. Pierre Enterprises Ltd. (1985), 2 C.P.C. (2d) 90 at p. 92, 56 C.B.R. (N.S.) 146 (Ont. H.C.J.); Toronto-Dominion Bank v. Szilagyi Farms Inc., supra; Tricontinental Investments Co. v. Guarantee Co. of North America, (1989), 70 O.R. (2d) 461, 39 C.P.C. (2d) 113 (C.A.); and 956513 Ontario Ltd. v. Anderson, (1992), 10 O.R. (3d) 563, 95 D.L.R. (4th) 355 (C.A.).

[29] Osbourne J.A. cited Toronto-Dominion Bank v. Szilagyi Farms Ltd. [^18], which held that Rule 1.04(2) (allowing matters not provided for in the rules to be determined by analogy to them) could not be applied to permit an order for security for costs to be made against a defendant who appealed, as authority for a narrow construction of Rule 61.06, and held that Rule 61.06 also did not give an appellate judge power to order security for costs in an application for leave to appeal. He concluded, “The Rules Committee could not have been unaware of its exclusion of motions from the security for costs provisions contained in the rules.”

[30] In Toronto-Dominion Bank v. Szilagyi Farms Ltd., Morden J.A. gave the following basis for distinguishing an order for security for costs from other interlocutory orders, by not permitting an order for security for costs, which was explicitly available against a plaintiff in a proceeding, also to be made against a defendant:

The remedy of an order requiring security for costs to be given, which can result in the termination of litigation for failure to comply with it, is a more drastic one than the remedy of discovery and more likely, in my view, to require an express provision conferring it.[^19]

[31] I conclude from Osbourne J.A.’s analysis in Société SEPIC S.A. v. AGA Stone Ltd., and particularly, his approval of Morden J.A.’s narrow construction of the rules regarding orders for security for costs in Toronto-Dominion Bank v. Szilagyi Farms Ltd., that the rules governing an application for leave to appeal from such an order is similarly to be construed narrowly. In particular, such an application should not be regarded as part of the appeal in respect of which leave is sought, nor part of the action in which the order for security for costs was made. Rather, it should be regarded as a distinct application, the costs of which must be dealt with forthwith, following disposition of the motion, in accordance with Rule 57.03 (1)(a).

[32] There is an additional reason for not deferring determination of the costs of an application for leave to appeal from an order for security for costs to the panel hearing the appeal. The appeal from the order will likely be determined based on whether the motion judge correctly interpreted Rule 56.03, governing motions for security for costs, and not based on the merits of Mr. Brown’s action. The basis upon which leave to appeal was granted was precisely that the motion judge may have required Mr. Brown to meet a high threshold in demonstrating that his action had merit without first requiring Canstar to establish that his action was frivolous and vexatious.

[33] In granting leave to appeal from the motion judge’s order, I held that allowing the decision to stand could deny Mr. Brown access to justice and create uncertainty as to who bears the onus, in a motion for security for costs, of demonstrating that the action does or does not have merit. This would tend to undermine a plaintiff’s access to justice. I further held that a finding that Mr. Brown’s action was frivolous and vexatious, based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act[^20] was conducted in a lawful manner and with reasonable force. To defer a decision regarding Mr. Brown’s costs of his application for leave to appeal would tend to have the same effect.

[34] As Fedak J. noted in Hanemaayer v. Freure, the grounds on which leave to appeal an interlocutory order is granted, as set out in Rule 62.02(4) of the Rules of Civil Procedure, are partially discretionary and relate to issues of public importance or the administration of justice. They do not necessarily relate to the merits of the appeal itself. The test for determining whether or not leave should be granted is not the same as the test the Divisional Court will apply in deciding whether Mr. Brown’s appeal from the order for security for costs should be allowed. It is possible, for example, that the Divisional Court could find that the motion judge was incorrect in shifting the onus to Mr. Brown to meet a high threshold of proof to establish that his action has merit, but then apply the correct onus and conclude that Canstar had, in fact, established that his action was frivolous and vexatious. This would not detract from the merit of his application for leave to appeal, or its public importance, or his entitlement to the costs of that application.

[35] There is yet a further reason why the determination of Mr. Brown’s costs should not be deferred. An order for “costs in the cause”, by depriving Mr. Brown of the resources he needs now to secure adequate representation for the hearing of his appeal, could end a possibly meritorious case based on his ability to pay. This is an access to justice issue.

[36] One of the objectives of a costs order, as noted above, is to preserve access to justice. Lauwers J., as he then was, in Hsueh v. Alderland Group Inc., declined to follow the typical practice or ordering “costs in the cause”, described by the Divisional Court in Axton v. Kent, and instead ordered that the unsuccessful applicant for a Mareva injunction pay the costs of the application within 30 days. He stated:

I have discretion to depart from the ordinary rule where to do so would be “more just” in the words of rule 57.03(1). There is support for orders of “costs in the cause” where an award might end a possibly meritorious case based on the party’s ability to pay, which is an access to justice issue.[^21]

[37] In Sheppard v. McKenzie, Perrell J. ordered the self-represented plaintiffs to pay the defendants’ costs of their motion to strike the plaintiffs’ Claim, on the basis that it disclosed no cause of action. He granted the plaintiffs leave to amend their Claim, but ordered them to pay the defendants’ costs of their motion “in any event of the cause,” to reflect the fact that the motion was justified, regardless of the outcome of the action. Perrell J. declined to order the costs to be paid within 30 days, however, as he found that this might prevent him from proceeding, even if he found a lawyer who could amend his Claim in such a way as to advance a proper cause of action.

[38] Balancing the objective of indemnifying the defendants for their costs of the motion, and the objective of preserving the plaintiffs’ access to justice, Perrell J. stated:

My response to this submission is that I am satisfied that a different order than costs payable within 30 days would be more just. As I have already mentioned, it is my opinion that the justice of the case suggests that the appropriate award is costs to the Berkow, Cohen LLP Defendants in any event of the cause.

I do not disagree with the comment in Axton that it is “salutary practice to order costs payable forthwith on interlocutory orders unless the justice of the case suggests otherwise.” The Divisional Court in Axton also said at p. 800: “Costs are discretionary. The motions judge made it clear that he was not bound by the general policy but thought its application sensible in this case. We agree.” To which I add that what is salutary practice must be measured by the purpose of a costs award.[^22] [Emphasis added]

[39] There is no evidence that Canstar is unable to pay the costs of the application for leave at this time. There is, on the other hand, evidence that Mr. Brown is under-resourced. This may explain why he was self-represented at the hearing of his application for leave to appeal. In the circumstances, I find that it would be “more just” to make an order for costs now and not defer the determination to the panel of the Divisional Court that hears the appeal.

b) Amount of costs to be paid

i. General Principles

[40] As a general principle, costs are in the discretion of the court.[^23] Determining costs is not a mechanical exercise. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”[^24] This is a “fundamental concept in fixing or assessing costs.”[^25]

[41] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario articulated the principles that govern costs assessments. Armstrong J.A. stated: “When the court awards costs, it shall fix them in accordance with sub-rule 57.01(1) and the Tariffs…Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act.”[^26]

[42] The Court must, first and foremost, be fair and reasonable when exercising its discretion to award costs. As Armstrong J.A. noted in Boucher, the parties’ expectation concerning the amount of a costs awarded is a relevant factor to be considered. Armstrong J.A. refrained from attempting to articulate a more detailed or formulaic approach, noting that the notions of fairness and reasonableness are embedded in the common law which judges have been applying for centuries to the facts of particular cases.[^27]

ii. Factors to be Considered when Assessing Costs

[43] Rule 57.01(1) contains a non-exhaustive checklist of factors that guide the Court in its reasoning when awarding costs in the exercise of its discretion under section 131 of the Courts of Justice Act. It provides, in part:

57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the Court may consider…

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(c) the complexity of the proceeding;

(d) the importance of the issue;

(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;

(i) any other matter relevant to the question of costs. [Emphasis added.]

[44] I will review the factors that I consider most relevant in arriving at the appropriate costs order in the present case.

a) Indemnity

[45] Costs normally follow the event, meaning that the court orders the unsuccessful party to pay the costs of the successful party on a partial indemnity scale.[^28] Mr. Brown was successful in his application for leave to appeal. He should therefore be indemnified for his costs on a partial indemnity scale.

b) Hourly Rates and Experience

[46] Mr. Brown is a law student who has interrupted his law studies. He states in his Costs Outline he spent over 76 hours doing the work of a lawyer “and would have made $127.00/hour based on the fees that the Plaintiff would ordinarily receive if he was engaged in remunerative activities.

[47] Canstar’s lawyer, Barry Fox, was called to the Bar in Ontario in 1998 and had been practicing law for 15 years when he argued the motion. He claims an hourly rate of $185 on a partial indemnity scale. He charges an actual hourly rate of $275. He was assisted by a student-at-law, Nicola Brankley, who claims an hourly rate of $100 on a partial indemnity scale, and charges an actual hourly rate of $150.

[48] The “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”) suggests maximum hourly rates (on a partial indemnity scale) of $80.00 for law clerks, and $300.00 for lawyers of between 10 and 20 years’ experience.[^29] These limits are generally intended for the most complex and important of cases.

[49] The Costs Bulletin, published in 2005, is now dated. Mr. Cox’s partial indemnity rate of $300.00 in 2005 is the equivalent of $217.13 in today’s dollars. His student’s hourly rate of $80.00 per hour in 2005 is the equivalent of $93.89 per hour in today’s dollars. I find that Mr. Brown should be assigned an hourly rate of $100.00 for the time he reasonably spent on the motion.

c) Hours Spent

[50] Mr. Brown says that he spent 76 hours working on the motion. He performed legal research, reviewed more than 2000 pages of examination for discovery transcripts, and studied the case law and rules of civil procedure. He drafted his motion record, factum, Costs Outline, and Cost Submissions, and assembled his book of authorities. Each party spent two and a half hours in court on August 30, 2013, when the motion was argued.

[51] Mr. Brown says that he consulted a lawyer on a limited retainer who charged him for 3 hours of time at $300 per hour for a total of $900 + $117.00 HST. Mr. Cox submits that this cost should be regarded as part of Mr. Brown’s legal fees, rather than a disbursement. I agree with this submission.

[52] Mr. Cox says that he spent 5 hours drafting Canstar’s factum and reviewing Mr. Brown’s factum, 2.5 hours preparing for the motion, and 2.5 hours attending on August 30, 2013. His student spent an additional 10 hours performing legal research on the legal test for leave to appeal.

[53] Mr. Cox says that the time he and his law clerk spent, at their respective hourly rates, amount to $2,850 on a partial indemnity scale, or $4,250 on a substantial indemnity scale.

[54] Mr. Brown says he spent 76 hours on the motion. At his hourly rate of $100.00, this would result in costs of $7,600. If the $900 that he was charged by his lawyer is added, his total costs were $8,500. I find that the 76 hours Mr. Brown spent exceeds the time that counsel would spend on a motion of this kind, even when allowance is made for MR. Brown’s inexperience, as reflected in the lower hourly rate that is being applied to his time. I allow 35 hours, being approximately half the time Mr. Brown says he spent, but still significantly greater than the 20 hours spent by Canstar’s counsel and his student.

d) Complexity

[55] This motion for leave to appeal involved the interpretation of the onus provisions of Rule 56.03, combined with the test for leave to appeal to the Divisional Court. It required an analysis of the transcripts of examinations for discovery, which added factual complexity. I regard the motion as moderately complex.

e) Importance of the Matter

[56] What was at stake in the motion was the plaintiff’s right to proceed with his action, as he states that he is financially unable to satisfy Daley J.’s order for security for costs.

[57] The motion involved issues of importance to the public, for the reasons set out for granting leave to appeal to the Divisional Court.

f) Improper or Unnecessary: The Scale of Costs

In the normal course, costs are awarded to a successful party on a partial indemnity scale. The court has a discretion to order costs payable on a substantial indemnity scale in exceptional cases.[^30] I do not regard the facts of this case as exceptional, and neither party engaged in unreasonable conduct that would justify an order for costs on a substantial indemnity scale.

g) Reasonable Expectation of Unsuccessful Parties

[58] A costs award must be within the reasonable expectation of the unsuccessful parties in order to preserve access to justice. Armstrong J.A. explained the rationale for this principle in Boucher:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice….

In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor.[^31]

[59] I adopt Campbell J.’s statement in Jhaj v. York University, in this regard:

In my view, the awarding of costs, particularly on a motion, should reflect some basis of continuity between similar kinds of motions and not be determined only on the basis of the number of hours involved.[^32]

[60] In reviewing a claim for costs, I need not undertake a line by line analysis of the hours claimed, nor should I second guess the amount claimed unless it is clearly excessive or overreaching. I must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, award costs in a global fashion.[^33]

[61] A costs award must be within the reasonable expectation of the unsuccessful parties in order to preserve access to justice. Borins J. A. explained the rationale for the principle in Moon v. Sher:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.

In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor.[^34]

[62] The Court’s practice with regard to the costs of motions for leave to appeal should reasonably have informed Canstar’s expectation as to the costs they would face if they were unsuccessful in opposing Mr. Brown’s motion. In Abrams v. Abrams, Low J. noted that the appellant had referred to a number of costs awards made to successful respondents on leave to appeal motions, where the range was said to be from $3,500 to $5,000.[^35] I consider this range representative of the range of costs normally awarded in such cases. Low J. made no finding in this regard in arriving at his costs order of $5,000.00, which she did, independently of the awards submitted to her, through the principled approach mandated by Rule 57.01(1).

[63] In Fernicola (In Trust) v. Creview Development Inc., Wilson J., sitting as a judge of the Divisional Court on a motion for leave to appeal, stated:

I heard counsels’ submissions with respect to costs. The costs must be reasonable, in proportion to the amount in dispute and within the reasonable expectations of the losing party. A standard award for costs on an unsuccessful motion for leave to appeal is in the vicinity of $3,500.00. This would be such a standard motion for leave to appeal.[^36] [Emphasis added]

[64] I regard Wilson J.’s finding as to a “standard award” to be current and representative of the costs awarded in motions for leave to appeal, of moderate complexity. It corresponds to the award that results from applying an hourly rate of $100 to the 35 hours I am allowing for the time Mr. Brown reasonably spent on the motion.

[65] I have had regard to the principle of proportionality set out in Rule 1.04 (1.1):

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[66] The amount of $4,250.00 that Canstar paid to their own lawyers is within the range of costs that courts have ordered unsuccessful litigants to pay, on a partial indemnity scale, in motions for leave to appeal. Mr. Brown’s own costs, including both what he was charged by the lawyer he consulted and the value of the time he himself spent should not be discounted by reason of the fact that he is self-represented.

h) Improper or Unnecessary

[39] As noted above, neither party took steps that were improper or unnecessary.

i) Any other matter relevant to costs

[67] Mr. Brown claims disbursements in the amount of $180, consisting of $127 for court filing fees and $53 for photocopying and binding. These disbursements are reasonable and are allowed in the amounts claimed.

CONCLUSION AND ORDER

[42] In all of the circumstances, costs of $4,135 ($3,500.00 + HST of $455 + disbursements of $180 inclusive of HST) were appropriate in this standard motion for leave to appeal in a case of moderate complexity. I regard this amount as fair and what Canstar should reasonably have expected to pay if unsuccessful.

[43] Based on the foregoing, it is ordered that the remaining defendants in the action shall pay Mr. Brown his costs fixed at $4,135 and payable within thirty days.

Price J.

Released: September 2, 2014

CITATION: Brown v. Hudson’s Bay Company, 2014 ONSC 5079

COURT FILE NO.: CV-09-1924

DATE: 2014 09 02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

COLLINGTON BROWN Plaintiff

• and –

THE HUDSON’S BAY COMPANY (HBC), LINDA MERCADANTE, JANE DOE a.k.a. LAURA, BRAMALEA CITY CENTRE, CANSTAR SECURITY SERVICES INC., MICHAEL MAGNAYE, RYAN HARNEST, AMANDA ELIZABETH BALNE, SHAUN McGRATH, AND RAPHAEL WAUGH Defendants

COSTS ENDORSEMENT

Price J

Released: September 2, 2014

[^1]: Trespass to Property Act, R.S.O. 1990, c. T.21 [^2]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25-26 [Okanagan]. [^3]: Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 at para 10, 1997 12208 (ONSC) [^4]: 1465778 Ontario Inc. v. 1122077 Ontario Ltd (2006), 82 OR (3d) 757 at para 45, 2006 35819, (ON C.A.), (Feldman J.A). See also: Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 23 1985 1957 (ON SC), Standard Life Assurance Co. v. Elliott 86 O.R. (3d) 221, 2007 18579 (ON SC), (2007)(S.C.J.); 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2007), 82 O.R. (3d) 757 2006 35819 (C.A.); Reynolds v. The City of Kingston Police Services Board 2007 ONCA 375, (2007), 86 O.R. (3d) 43 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Sommers v. Fournier (2002), 60 O.R. (3d) 225, 2002 45001 (ON CA), (2002), (C.A.); Fong v. Chan (1999), 46 O.R. (3d) 330, 1999 2052, (C.A.); Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 1997 12208 , (1997), (Gen. Div.); Skidmore v. Blackmore 1995 1537, (1995), 122 D.L.R. (4th) 330 (B.C.C.A.). [^5]: Andersen v. St. Jude Medical Inc.(2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (ONSC D.C.) [^6]: Taske Technology Inc. v. PrairieFrye Software Inc., [2003] O.J. No. 30, cited in Theodorou v. Bruno (2007), 161 A.C.W.S. (3d) 695 (Ont. S.C.J.) [^7]: Axton v. Kent (1991),, 2 O.R. (3d) 797, 1991 7196 (ON SC). [^8]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, citing Fong v. Chan 1999 2052 (ON CA), (1999), 46 O.R. (3d) 330, at para. 22 [^9]: Family Law Rules, O. Reg. 114/99, Rule 24(10) [^10]: Wilson v. Brilliant and Lorimer, 2007 ONCJ 277, 172 A.C.W.S. (3d) 965, per Justice Bruce E. Pugsley; and Proulx v. Viau, 2009 ONCJ 159, [2009] O.J. No. 1661 [^11]: Cole v. Cole and Howell (No. 3), 2007 ONCJ 198, 157 A.C.W.S. (3d) 349, [^12]: Marini v. Muller, 2001 28435 (ON SC), [2001] O.J. No. 251, (ON S.C.), at para. 23. [^13]: Hanemaayer v. Freure, 2004 34935 (ON SC), paras 8 - 9 [^14]: Hanemaayer v. Freure, above, para. 10 [^15]: Les Equipements de Ferme Curran Ltee/Curran Farm Equipment Ltd. v. John Deere Limited, 2010 ONSC 4125 at para. 3 [^16]: Law of Costs, Orkin (2nd edition), paragraph 408.16.1 [^17]: Société SEPIC S.A. v. AGA Stone Ltd., 1995 ONCA 1891, 1995 1891 (ON CA), 21 OR (3d) 542 [^18]: Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, 28 C.P.C. (2d) 231 (C.A.). [^19]: Toronto-Dominion Bank v. Szilagyi Farms Ltd., at p. 441 [^20]: Trespass to Property Act, R.S.O. 1990, c. T.21 [^21]: Hsueh v. Alderland Group Inc. 2011 ONSC 4976 , para. 7, citing Mark M. Orkin, The Law of Costs (Aurora: Canada Law Book, 2010) at 4-5 and, for example, Tanner v. Clark, 2002 34779 (ON SCDC), [2002] O.J. No. 3702 at para. 28, 24 C.P.C. (5th) 68, 164 O.A.C. 228 (S.C.J. (Div Ct.)), affd 2003 41640 (ON CA), 224 D.L.R. (4th) 635 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 192, 230 D.L.R. (4th) vi, as cited in Orkin at 4-6, footnote 38. [^22]: Sheppard v. McKenzie, 2009 46175 (ON SC) [^23]: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131. [^24]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 24-26. [^25]: Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 2003 8279 (Ont. S.C.), at para. 16. See also Boucher, at para. 38; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 20. [^26]: Boucher, at para. 26. [^27]: Boucher, at paras. 37-38. [^28]: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.), at p. 142. [^29]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid. [^30]: 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992), 7 C.P.C. (3d) 15 (Ont. C.J.) at p. 17, per Blair J.; Murano v. Bank of Montreal(1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 244. [^31]: Boucher, at paras. 37-38. See also: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.), at para. 28, per Borins J.A. [^32]: Jhaj v. York University (2002), 16 C.P.C. (5th) 324 (Ont. S.C.), at para. 19. [^33]: Fazio v. Cusumano, 2005 33782 (Ont. S.C.), at para. 8. [^34]: Moon v. Sher , , 246 D.L.R. (4th) 440, 2004 39005 (ON C.A.). [^35]: Abrams v. Abrams, 2009 23375 (ON S.C.D.C.) at para. 20. [^36]: Fernicola (In Trust) v. Creview Development Inc., 2009 492 (ON S.C.D.C.)., at para. 15