Superior Court of Justice - Ontario

COURT FILE NO.: 13-56569
DATE: 20131016

RE: Bryan Teskey, Applicant

AND:

Attorney General of Canada, Respondent

BEFORE: Hackland R.S.J.

COUNSEL:
Bryan Teskey in person

J. Sanderson Graham and David Aaron for the Respondent

COSTS ENDORSEMENT

[1] The respondent, the Attorney General of Canada, was successful in this application brought by the applicant, Mr. Teskey (see reasons reported at [2013] O.J. No. 3681). The court dismissed the application on the basis that Mr. Teskey lacked standing and the issue raised was not justiciable, as previously decided by a binding decision of the Ontario Court of Appeal, O’Donohue v. Canada, 2003 41404 (ON SC), [2003] O.J. No. 2764 (Ont. S.C.), aff’d [2005] O.J. No. 965 (Ont.C.A.).

[2] There are no Rule 49 Offers of Settlement or other relevant offers identified by the parties in their respective costs submissions.

[3] As the respondent, the Attorney General was successful he is entitled to his costs. The scale will be partial indemnity. The respondent incurred $38,058.61 in legal costs and disbursements and seeks to recover the sum of $10,000. This is a reasonable and indeed modest claim and I have no hesitation in accepting it. Respondent’s counsel have put forward modest hourly rates and the preparation time (about 200 hours in total between senior and junior counsel) is not excessive given the significant constitutional and monetary issues raised in the application.

[4] I would observe that Mr. Teskey badly mishandled this matter and generated huge volumes of irrelevant documentation, which nevertheless had to be dealt with by the respondent and reviewed by the court. Mr. Teskey is a recent law school graduate who would be well advised to seek legal assistance in the event this case proceeds further. Shortly prior to the hearing of this application Mr. Teskey served an 87 page application record containing and referencing a large number of documentary exhibits that were not appended to an affidavit. In his factum he raised new grounds and sought new remedies not in his Notice of Application, including a claim for Charter damages of $440,000. Two days prior to the hearing Mr. Teskey filed a supplementary factum and a voluminous additional documentary record, in contravention of the applicable time limits (Rule 38.09(1)) of the Rules of Civil Procedure.

[5] Notwithstanding his lack of success in this application, in his costs submissions Mr. Teskey seeks a costs award against the respondent of $100,000 on various grounds which are completely devoid of merit. I intend to mention only two.

[6] Firstly, the applicant argues that he delivered a Request to Admit which included the proposed admission that he had standing to bring this application. The respondent delivered its response arguably slightly outside the required response time, however the response clearly did not admit standing and indeed the respondent’s factum specifically identified lack of standing and non justiciability as the principal issues to be argued on the hearing. Further, this court exercised its discretion to grant leave at the hearing to argue the standing/justiciability issue. Mr. Teskey was not taken by surprise by that issue.

[7] Secondly, Mr. Teskey seems to suggest that he should be treated as a public interest litigant and forgiven any responsibility for costs. He did not frame his application in that manner and indeed claimed Charter damages. The court’s finding that he lacked standing is also a bar to his claim based on advancing a public interest.

[8] As noted the respondent is entitled to its costs of this application, which I fix in the sum of $10,000 inclusive of disbursements and HST payable by the applicant within 30 days of the release of this endorsement.

Mr. Justice Charles T. Hackland

Released: October 16, 2013

COURT FILE NO.: 13-56569
DATE: 20131016

BETWEEN:

Bryan Teskey

and

Attorney General of Canada

COSTS ENDORSEMENT

HACKLAND R.S.J.

Released: October 16, 2013