ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-348329CP
DATE: August 1, 2012
BETWEEN:
Anna Marie Arenson
Plaintiff
- and -
City of Toronto
Defendant
Proceeding under the Class Proceedings Act, 1992
COUNSEL:
• Ken Arenson for the Plaintiff
• Darrel A. Smith for the Defendant
HEARING DATE: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
A. INTRODUCTION
[ 1 ] The Plaintiff, Dr. Anna Marie Arenson, brought a motion to certify this action as a class action. I dismissed the motion. See Arenson v. Toronto , 2012 ONSC 3944 .
[ 2 ] As the victor, the Defendant, City of Toronto, seeks costs on a partial indemnity basis of $70,537.79 all inclusive. The breakdown is $60,487.00 for fees, $7,863.31 for HST, and $2,187.48 for disbursements.
[ 3 ] In responding to the City’s request for costs, Dr. Arenson submits that the costs awarded should be nominal because the proposed class action involved a matter of public interest, decided novel points of law, and encouraged the City to modify its behaviour by publishing a booklet helpful to the driving public. Further, it is submitted that awarding costs against Dr. Arenson, who had very little to financially gain from bringing this action, would discourage access to justice. Lastly, the City’s belated compliance with the timetable in the litigation should not go unpunished.
[ 4 ] Apart from her principled objections to awarding anything more than nominal costs, Dr. Arenson’s costs submissions do not challenge the quantum or reasonableness of the City’s claim for partial indemnity costs.
[ 5 ] Notwithstanding Dr. Arenson’s submissions, I see no reason not to award the costs as claimed. The amount of costs is reasonable in all the circumstances and should have been anticipated by Dr. Arenson, who under the Class Proceedings Act, 1992 , S.O. 1992, bears the risk of a costs award should the motion for certification be unsuccessful.
[ 6 ] I do not doubt that Dr. Arenson’s proposed class action interested the public and I appreciate that it attracted some media attention. However, that a case is interesting to the public does not mean that it is public interest litigation in the requisite sense that would justify a departure from the normal rule that the successful party is entitled to costs on a partial indemnity basis. See: Vennell v. Barnado's (2004), 2004 33357 (ON SC) , 73 O.R. (3d) 13 (S.C.J.); Ruffolo v. Sun Life Assurance Co. of Canada , 2008 5962 (ON SC) , [2008] O.J. No. 599 (S.C.J.); McLaine v. London Life Insurance Co. , [2008] O.J. No. 2360 (Div. Ct.) ; Williams v. Mutual Life Assurance Co. of Canada , 2001 62796 (ON SC) , [2001] O.J. No. 445 (S.C.J.); Gariepy v. Shell Oil Co. , [2002] O.J. No. 3495 (S.C.J.) ; Caputo v. Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC) , 74 O.R. (3d) 728 (S.C.J.); Pearson v. Inco Ltd . (2006), 2006 7666 (ON CA) , 79 O.R. (3d) 427 (C.A.); Moyes v. Fortune Financial Corp ., [2002] O.J. No. 4298 (S.C.J.) ; Sutherland v. Hudson's Bay Co., [2008] O.J. No. 602 (S.C.J.) .
[ 7 ] That a person brings a proceeding out of a bona fide concern to vindicate his or her concern of the public interest does not necessarily insulate that person from an award of costs: Consumers' Association of Canada v. Coca-Cola Bottling Co. , [2006] B.C.J. No. 1879 (S.C.) at paras. 25-27 , aff’d 2007 BCCA 356 () , [2007] B.C.J. No. 1625 (C.A.).
[ 8 ] I see nothing in the circumstances of this case that would justify a departure from the normal rule about costs.
[ 9 ] Accordingly, I award the City costs of $70,537.79 all inclusive.
Perell, J.
Released: August 1, 2012
COURT FILE NO.: 08-CV-348329CP
DATE: August 1, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Marie Arenson
Plaintiff
‑ and ‑
City of Toronto
Defendant
REASONS FOR DECISION-COSTS
Perell, J.
Released: August 1, 2012.