Court File and Parties

CITATION: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 6871

DIVISIONAL COURT FILE NO.: 922/21

DATE: 20221209

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ROCHANGÉ KILIAN, JOHNS DOE, JANE DOES, Applicants

AND:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Respondent

BEFORE: Swinton, Lederer and LeMay JJ.

COUNSEL: Paul Slansky and Samantha Coomara, for the Applicant Rochangé Kilian Amina Sherazee, for the Applicant John Does, Jane Does Paul Le Vay and Fredrick R. Schumann, for the Respondent College of Physicians and Surgeons of Ontario

HEARD at Toronto: In Writing

COSTS ENDORSEMENT

[1] The College of Physicians and Surgeons of Ontario (“CPSO”) seeks costs of the application for judicial review and the motions to quash and for a publication ban in the amount of $30,000 on a partial indemnity basis. They submit that the applicant patients, the Jane Does and John Does, should pay $5,000 for the motion to quash and $12,500 for the application for judicial review, while Dr. Kilian should pay $12,500 for the application for judicial review and the motion for a publication ban.

[2] The patients argue that they are public interest litigants and should pay no costs. In the alternative, they argue that the amount of costs should be significantly lower than sought by the CPSO.

[3] Dr. Kilian argues that she is a public interest litigant with respect to the issue of the decision to appoint investigators, and she should pay no costs for that aspect of the application. She argues that the costs should also be reduced because she is currently under suspension and is represented by counsel pro bono. At most, she suggests an amount of costs of $5,000.

[4] We do not accept the argument that the applicants are public interest litigants, or that they raised novel issues. Dr. Kilian is not a public interest litigator. Rather, she is in a dispute with her regulator, and she is seeking to protect private and pecuniary interests. She has been unsuccessful in the litigation, and she should pay costs.

[5] With respect to the patients, they pursued an application for judicial review despite a lack of private interest standing. There was no merit to their request for public interest standing. Accordingly, they too should pay costs to the CPSO.

[6] The CPSO sought $5,000 for the motion to quash, an amount that is reasonable, and should be payable by the patients.

[7] The CPSO also sought $25,000 for the judicial review and the motion for a publication ban. The applicants argue that this amount is excessive, pointing to other cases where smaller amounts were awarded. However, this case is not like most judicial reviews that come before this Court.

[8] In cases such as Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 (Div. Ct.), and Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC (Div. Ct.), the amount of costs was agreed upon at the hearing. There was no agreement here.

[9] Moreover, this was a case that was complex. Three decisions were challenged. The applicants filed an application record of some 1,935 pages and extensive case law. There were multiple issues to which the CPSO had to respond. In the circumstances, the amount claimed by the CPSO was within a reasonable range. Indeed, in comparison, the costs outline filed by the patients sought $17,085 for the judicial review and the cost outline for Dr. Kilian claimed $17,677. The patients also sought $6,700 for the publication ban motion.

[10] While the CPSO submitted that the costs of the application for judicial review should be divided evenly between the patients and Dr. Kilian, we do not accept that argument, as it would result in the patients owing more in costs than Dr. Kilian, the person primarily interested in the outcome of this litigation.

[11] Accordingly, costs are ordered as follows: the Jane Doe and John Doe applicants shall pay costs of $8,000, all-inclusive, for the motion to quash and the application for judicial review; Dr. Kilian shall pay costs of $18,000, all-inclusive, for the application for judicial review and the motion for a publication ban.

Swinton J.

Lederer J.

LeMay J.

Date: December 9, 2022