SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-378776

MOTION HEARD: JANUARY 22, 2013

RE: Alana Robinson

v.

Northmount School for Boys, L.L. and J.L.

BEFORE: MASTER R.A. MUIR

COUNSEL: Angelo Sciacca for the plaintiff Claudia Scherman for the defendant Northmount School for Boys

Amanda Smallwood for the defendants L.L. and J.L.

REASONS FOR DECISION - COSTS

[1] On January 22, 2013 I heard a motion brought by the plaintiff pursuant to Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order that the defendant Northmount School for Boys (“Northmount”) answer certain questions it refused to answer on its representative’s examination for discovery held January 20, 2011. A number of the issues on the motion were resolved prior to argument, but several refused questions remained in dispute. All of those disputed questions related to the single issue of whether the documents and information the plaintiff was seeking were protected by privilege pursuant to section 266(2) of the Education Act, R.S.O. 1990, c. E.2 (the “Act”).

[2] On February 14, 2013 I released my reasons for decision. I determined that the privilege did apply to the documents and information in question and dismissed that aspect of the plaintiff’s motion. I also requested that the parties attempt to agree on the issue of costs. It appears that the parties have been unable to do so as I have now received the parties’ written costs submissions.

[3] Northmount takes the position that it has been successful on this motion and seeks its costs in the amount of $15,303.03 on a partial indemnity basis. The plaintiff argues that the amount of costs requested by Northmount is excessive for a motion of this nature. The plaintiff suggests that a costs order in favour of Northmount in the amount of $3,500.00 would be fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules of Civil Procedure to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] These are the principles I have considered and applied in determining the appropriate costs order on this motion.

[6] I have reviewed the costs outlines and submissions of the parties. Northmount has been successful on this motion, although not entirely so. It did prevail on the main issue of the applicability of the privilege. However, the plaintiff did prevail with respect to the investigator’s report. Certain other refused questions were resolved on a consensual basis prior to argument.

[7] I agree with Northmount that the legal issues on this motion were moderately complex. Unlike most refusals motions, this motion required a full review of the law and the preparation of a factum. The matter was further complicated by the existence of conflicting case law. The issues on this motion were also very important to Northmount. The Act imposes very strict and serious obligations on Northmount when it comes to student records. It was reasonable for Northmount to take the issues on this motion very seriously and the plaintiff should not be surprised that Northmount’s counsel expended a significant amount of time in order to properly respond to the plaintiff’s motion. I also agree that the attendance on December 10, 2012 was wasted because of the plaintiff’s position with respect to notice to non-parties (although the appearance on December 10, 2012 was brief and the lost time was minimal).

[8] However, in my view, the costs requested by Northmount are nevertheless excessive in the circumstances. The facts underlying this motion were not complicated at all. A significant portion of the time claimed appears to be part of Northmount’s general discovery obligations. For example, the time spent to redact documents is simply a part of the process Northmount must follow in order to comply with its production obligations. I do not see how that effort can be attributed to this motion. Those costs are more properly part of a claim for costs once this action has been determined. The same can be said for the disbursement for discovery transcripts in the amount of $1,186.75. Finally, the adjournment on July 17, 2012 was not the sole responsibility of the plaintiff. In my view, that adjournment was necessary due to the court’s concerns about notice to non-parties. The parties should bear their own costs of that appearance.

[9] It is unclear from Northmount’s submissions whether it is claiming costs from the defendants L.L. and J.L. In my view, no costs order should be made against those parties. First, they did not bring this motion. They were responding to it. Second, regardless of the position L.L. and J.L. took on this motion, at least at first, Northmount was obligated to resist the plaintiff’s requests in order to protect the interests of other non-party students and parents. No additional cost was incurred as a result of any position taken by L.L. and J.L. There will be no costs order against L.L. and J.L.

[10] In view of these factors, and applying the principles set out above, it is my view that it is fair and reasonable that the plaintiff pay Northmount’s costs of this motion in the amount of $6,000.00. This amount is inclusive of HST and disbursements and shall be paid within 30 days.

[11] Finally, in accordance with the agreement of the parties, the plaintiff shall set this action down for trial by no later than June 28, 2013.

Master R.A. Muir

DATE: March 11, 2013