ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-56847
DATE: 2014/03/14
BETWEEN:
BEVERLEY KLECKNER
Plaintiff
– and –
ATTORNEY GENERAL OF CANADA
Defendant
Self-Represented
Lynn Marchildon
HEARD: By written submissions
decision as to costs
c. mCkinnon j.
[1] The Plaintiff, Beverley Kleckner, brought an unsuccessful urgent motion for relief in the nature of an injunction against the Defendant, Canadian Forces, represented by the Attorney General of Canada. After four days of hearing, the motion was dismissed and her action stayed pending the exhaustion of her rights in accordance with the grievance procedure provided by The National Defence Act; see Kleckner v. Canada (Attorney General), 2014 ONSC 322.
[2] As was noted in para. 4 of the decision, the urgent motion was initially heard by me on March 26, 2013 and April 9, 2013. At the conclusion of those two days of hearings, it was believed that the parties were capable of resolving their differences and the motion was adjourned sine die pending settlement.
[3] A resolution of the issues did not occur and the motion was brought back and further argued before me on November 14 and 15, 2013.
[4] Following the release of reasons on January 15, 2014, the parties were invited to submit submissions in the event they were unable to agree on costs. The parties were unable to agree and I have now received their submissions.
[5] Throughout the hearing of the motion, the Plaintiff was represented by counsel. Since the release of reasons she is now self-represented.
[6] Cutting to the core of her submissions on costs, the Plaintiff submits that she should be awarded the entire amount of her solicitor-client costs amounting to $54,530. The Plaintiff submits that the judgment was more favourable than the terms of a settlement offer proposed to her during the course of settlement negotiations. In particular, the Plaintiff points out that the judgment requires the Canadian Forces to channel the Plaintiff’s complaint to a Grievance Board. The Plaintiff submits that this was not guaranteed during the course of settlement discussions.
[7] In my view, it was implicit throughout the settlement discussions that the Plaintiff’s grievance would be submitted to a Grievance Board. I believe I can speak with some knowledge with respect to that fact because the parties invited my input to the settlement discussions during the month of May 2013. At that time, I encouraged settlement and was satisfied that the Plaintiff’s grievance would be ultimately referred to a Grievance Board. In fact, the proposed settlement provided that in the event the Plaintiff’s grievance was not referred to a Grievance Board, the Plaintiff’s motion would be revived in this court. I should add that my involvement in the settlement discussions dealt solely with procedural issues and at no time touched upon the merits of the Plaintiff’s motion.
[8] More germane to the issue of costs is that throughout the settlement discussions, as is revealed in the various email exchanges between the parties, it is clear that the Canadian Forces agreed that they would take no steps with respect to the Plaintiff’s referral for a psychosocial assessment until she had exhausted the grievance procedure and that the Plaintiff’s temporary medical category would not form the basis of a release from the Canadian Forces. In refusing that offer of settlement and, in light of the judgment rendered in the case, the Plaintiff has been deprived of those protections.
[9] For these reasons, it cannot be seriously argued that the Plaintiff has obtained an advantage as a result of the judgment rendered on her motion.
[10] The Defendant seeks partial indemnity costs in the total amount of $26,404.73, which sum, it may be noted, is less than half the amount of solicitor-client costs paid by the Plaintiff to her solicitor.
[11] The Defendant was represented by Ms. Lynn Marchildon, a lawyer with the Department of Justice with 14 years’ experience. Her billing rate to Federal Government departments, including the Canadian Forces, is $216.10 an hour, a modest sum given her experience. Ms. Marchildon docketed 164 hours responding to the Plaintiff’s motion for injunctive relief.
[12] Section 131 of the Courts of Justice Act states that:
Costs awarded to Her Majesty shall not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown, and costs recovered on behalf of Her Majesty shall be paid into the Consolidated Revenue Fund. R.S.O. 1990, c. C.43, s. 131 (2); 1994, c. 12, s. 45.
[13] The calculation of the amount of $26,404.73 sought by the Defendant is calculated upon a partial indemnity rate of 60 percent of the amount charged by Ms. Marchildon to the Canadian Forces.
[14] In my view, considering the experience of Ms. Marchildon and contrasting her costs to the solicitor-client costs incurred by the Plaintiff with her own counsel, the Defendant’s request for costs is eminently reasonable. The issues and the facts in the motion were complex.
[15] In the circumstances, an order shall issue requiring the Plaintiff to pay the Defendant costs fixed in the amount of $26,404.73, inclusive of GST and disbursements, payable forthwith and in any event of the cause.
[16] I have been informed that the Plaintiff shall be seeking leave to appeal by decision dated January 15, 2014 and that a date in April 2014 has been fixed for the hearing of her leave application. Counsel for the Defendant is encouraged not to seek payment of the costs ordered herein until the hearing of the application for leave to appeal.
The Hon. Mr. Justice C. McKinnon
Date: March 14, 2014
COURT FILE NO.: 13-56847
DATE: 2014/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BEVERLEY KLECKNER
Plaintiff
– and –
ATTORNEY GENERAL OF CANADA
Defendant
DECISION AS TO COSTS
C. McKinnon J.
Released: March 14, 2014