SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 10-CV-412021

Motion Heard: In Writing

RE: Phyllis Morris

v.

Richard Johnson, William “Bill” Hogg

and others

Before: Master Thomas Hawkins

Counsel:
Jordan Goldbatt for moving defendants Richard Johnson and William “Bill” Hogg
Fax No. 416-591-7333

Kenneth R. Clark for responding plaintiff
Fax No.: 416-863-1515

No one for other defendants

SUPPLEMENTARY REASONS FOR DECISION

[37] On October 22, 2012 I released reasons for decision on a motion by the defendants Richard Johnson (“Johnson”) and William “Bill” Hogg (“Hogg”) awarding the costs of this discontinued action to Johnson and Hogg payable by the plaintiff former Mayor Phyllis Morris. Those reasons for decision (36 paragraphs long) are found at 2012 ONSC 5824. Those reasons for decision did not deal with the costs of the motion brought by Johnson and Hogg.

[38] On October 23, 2012 counsel for Johnson and Hogg wrote me seeking my consent to file with me a bill of costs for the motion I had just dealt with. Instead, I convened a telephone case conference for November 19, 2012. At that time I directed both sides by November 30, 2012 to exchange and file with me their written costs submissions not exceeding three pages in length respecting the costs of the motion by Johnson and Hogg which I heard on April 26 and July 17, 2012.

[39] I have received and considered those costs submissions.

[40] At the outset, counsel for former Mayor Morris took the position that because my reasons for decision were silent on the subject of the costs of the motion which I had heard, such silence amounted to an order that no costs of the motion were payable by either side.

[41] Counsel for former Mayor Morris cited two decisions, namely Delrina Corp. (c.o.b.Carolian Systems) v Triolet Systems Inc., 2002 45083 (ON CA), [2002] O. J. No. 3729 (C.A.) at paragraph 36 and Magnussen Furniture Inc. v Mylex Ltd., [2007] O.J. No. 1651 per Reilly J. at paragraph 43 for the proposition that if an order does not contain a costs provision it is as if the court had ordered no costs with respect to a motion.

[42] As I read both those decisions, they involved situations where a formal order disposing of a motion was issued and entered and the formal order was silent on the subject of the costs of the motion.

[43] Counsel for former Mayor Morris also submitted that having released my reasons for decision on October 22, 2012, that were silent on the subject of the costs of the motion by Johnson and Hogg, I was functus officio and without jurisdiction to deal with the subject of the costs of that motion.

[44] I disagree with counsel for former Mayor Morris on both these points.

[45] The situation before me is different from that in Delrina and Magnussen where formal orders had been issued and entered before the subject of the costs of the motion came up. That has not happened here. No formal order disposing of the motion by Johnson and Hogg which I heard on April 26 and July 17, 2012 has yet been issued and entered.

[46] In Holmes Foundry Ltd. v Point Edward (Village), 1963 197 (ON CA), [1963] 2 O. R. 404 the Court of Appeal held (at page 407) that an order may be withdrawn, altered or modified by the court on the court’s own initiative or on the application of a party until such time as the order has been drawn up, passed and entered.

[47] Because a formal order disposing of the motion which I heard on April 26 and July 17, 2012 has yet to be issued and entered, I still have jurisdiction to alter or modify my reasons for decision of October 22, 2012 so as to deal with the subject of the costs of that motion. I propose to do just that.

[48] In my view, Johnson and Hogg were successful on that motion and should receive the costs of that motion on an enhanced scale for the reasons set out in paragraph 32 of my reasons for decision of October 22, 2012.

[49] I agree with counsel for former Mayor Morris that in fixing the costs of the motion by Johnson and Hogg I should have regard to the principle of proportionality found in subrule 1.04(1.1). That subrule provides as follows.

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.

[50] The various clauses of subrule 57.01(1) and particularly clauses (0.a) and (0.b) are relevant as well. Clauses (0.a) and (0.b) provide as follows.

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 or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well 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;

[51] During argument before me on the main part of this motion counsel for former Mayor Morris submitted that counsel for Johnson and Hogg had engaged in overkill and had spent far too much time on the defence of this action. In paragraph 34 of my reasons for decision of October 22, 2012 I rejected this submission, pointing out that Johnson and Hogg faced a claim for $6,000,000 in damages. Counsel for former Mayor Morris submits that counsel for Johnson and Hogg has submitted a claim for costs of the motion in excess of $24,000, which he submits is disproportionate.

[52] I agree. Once former Mayor Morris discontinued this action, Johnson and Hogg no longer faced a claim for $6,000,000 in damages. All that remained in issue was the costs of the action and the costs of the motion by Johnson and Hogg to recover costs, or an amount in the range of $20,000 to $35,000. That is a far cry from $6,000,000.

[53] I am aware that the motion before me took two days of argument, that there were cross-examinations on detailed affidavits and that factums were prepared.

[54] Taking all of this into consideration, I have concluded that the proportionate, fair and reasonable amount at which to fix the enhanced costs of Johnson and Hogg for their successful motion is $8,000. I fix the costs of this motion in that amount and order former Mayor Morris to pay such costs to Johnson and Hogg within 30 days.

(original signed)_

Master Thomas Hawkins

DATE: January 7, 2013