COURT FILE NO.: C-283-13
DATE: 2014-03-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALLISON GARRETT, Plaintiff
AND:
OLDFIELD, GREAVES, D’AGOSTINO, G. EDWARD OLDFIELD, TERRANCE J. BILLO, CATHERINE P. WATSON (CATHERINE P. WATSON PROFESSIONAL CORPORATION), STEIBER BERLACH LLP, ELIZABETH BOWKER, IAIN PECK, GUARANTEE COMPANY OF NORTH AMERICA, TEMPLE INSURANCE, SOUTHEAST GREY SUPPORT SERVICES, IRWIN DOWKER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and BUD CARTER, Defendants
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL:
Plaintiff – self-represented
W.H. Peter Madorin, Counsel for the Defendants OLDFIELD, GREAVES, D’AGOSTINO, G. EDWARD OLDFIELD, and TERRANCE J. BILLO
William J. Leslie, Counsel for the Defendants CATHERINE P. WATSON and (CATHERINE P. WATSON PROFESSIONAL CORPORATION)
James Cook, Counsel for the Defendants STEIBER BERLACH LLP, ELIZABETH BOWKER and IAIN PECK
Giovanna Asaro, Counsel for the Defendants GUARANTEE COMPANY OF NORTH AMERICA, TEMPLE INSURANCE, SOUTHEAST GREY SUPPORT SERVICES and IRWIN DOWKER
Heather Burnett, Counsel for the Defendants HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and BUD CARTER
Costs ENDORSEMENT
[1] The parties have now delivered their submissions on costs as directed in my Endorsement released January 23, 2014. The following is my disposition with respect to the costs of the motions and of the action as against the defendants other than Oldfield, Greaves, D’Agostino, G. Edward Oldfield and Terrance J. Billo, against whom the action will continue.
Positions of the Parties
[2] Her Majesty the Queen in Right of Ontario (the “Crown”) and Bud Carter, seek costs on a partial indemnity basis in the total sum of $8,635, comprised of fees in the sum of $8,485 (based on a partial indemnity rate of $250/hour for senior counsel and $125/hour for junior counsel who argued the motion, plus disbursements.
[3] South East Grey Support Services, Irwin Dowker, Guarantee Company of North America and Temple Insurance seek substantial indemnity costs in the sum of $37,525.00 based on fees of $34,357, plus disbursements of and HST They argue that the plaintiff’s claims were unmeritorious and were an affront to their integrity. They point to the case of Foglia v 1144341 Ontario Ltd. [2006] O.J. No. 1629 (S.C.J.) as support for the proposition that where an action is commenced advancing serious allegations of misconduct which cannot be proven, an order for substantial indemnity costs may be appropriate. In the alternative, these defendants seek partial indemnity costs of $21,043.22, comprising fees of $17,875, based on a partial indemnity rate of $255 per hour for senior counsel and an assisting junior counsel rate of $142.50 and an articling student rate of $113, plus disbursements and HST.
[4] The Catherine P. Watson and Catherine P. Watson Professional Corporation seek substantial indemnity costs in the sum of $25,802.73, comprising fees of $22,187.50, plus disbursements and HST. They argue that the plaintiff made unfounded and unsubstantiated claims which attacked the integrity and core of Ms. Watson’s professional existence and life, the effects of which were magnified by the fact that she practises in a small community. She also points to the case of Foglia v 1144341 Ontario Ltd. In the alternative, Ms. Watson seeks partial indemnity costs of $14,542.85, comprising fees of $12,223, based on a partial indemnity rate of $275.00 per hour, plus disbursements and HST.
[5] Elizabeth Bowker, Iain Peck and Stieber Berlach LLP seek substantial indemnity costs in the sum of $28,300.06, based on fees of $23,805.00, plus disbursements and HST. They similarly argue that a litigant may be liable for substantial indemnity costs where she makes unfounded allegations of improper conduct seriously prejudicial to the character or reputation of an opposing party, citing the case of Murano v. Bank of Montreal, 1998 5633 (C.A.) at para. 82. In the alternative, these defendants seek partial indemnity costs in the sum of $19,465.72, comprised of fees in the sum of $15,987, based upon a partial indemnity rate of $170/hour for senior counsel, an assisting junior counsel rate of $115/hour and an articling student rate of $60/hour, plus disbursements and HST.
[6] Oldfield, Greaves, D’Agostino, G. Edward Oldfield and Terrance J. Billo seek partial indemnity costs in the sum of $10,455.04, comprised of fees of $9,414, based upon a rate of $350/hour for senior counsel and an assisting clerk rate of $90/hour, and plus disbursements and HST.
[7] The plaintiff argues, in reference to the defendants Oldfield, Greaves, D’Agostino, G. Edward Oldfield and Terrance J. Billo, that there were delays in obtaining their Affidavits of Documents, that the amount claimed by them for costs includes responding to the plaintiff’s attempts to gain access to her file and that these defendants did not respond sufficiently to the serious allegations made against them in the Statement of Claim. She submits that, although her motion for summary judgment was unsuccessful, it was not unreasonable to have brought it in an attempt to shorten the proceedings. She submits that that the costs be either determined at the conclusion of the action, or that payment of the costs be deferred until that time.
[8] In reference to the remaining defendants, the plaintiff submits that they unnecessarily lengthened and delayed the proceeding and that they utilized two days to argue the motions enabling them to ask for the maximum and unreasonable costs.
General Principles
[9] The factors to be considered by the court, in exercising its discretion on costs under Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, are set forth in Rule 57.01(1). Of particular relevance are firstly, the principle of indemnity referred to in subparagraph (0.a) and secondly, the question of what the reasonable expectation of an unsuccessful party would be, as referred to in subparagraph (0.b).
[10] As emphasized by the Court of Appeal in the case of Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291, the overriding principle guiding the court in fixing costs is that of reasonableness. At paragraph 38, Armstrong, J.A. confirmed that in deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor.
[11] In the more recent case of Davies v. Clarington (Municipality) 2009 ONCA 722 the Court of Appeal noted with approval the statement of principles to be considered in awarding costs enunciated by the Divisional Court in Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557, as follows:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1);
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant;
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable;
The court should seek to avoid inconsistency with comparable awards in other cases; and
The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
Analysis
[12] I see no reason why the costs in this matter should not follow the event, thereby requiring the plaintiff to pay the costs of the defendants within thirty days. The more difficult question is whether costs should be awarded on a substantial indemnity basis in favour of those parties seeking costs on that basis in the circumstances.
[13] It is indeed unfortunate that the plaintiff did not avail herself of legal advice before launching the action. Had she done so, it is entirely possible that the action would never have been initiated and the substantial costs sought by the defendants would not have been incurred. The serious allegations in the Statement of Claim demonstrated a profound lack of understanding of the administration of civil justice in our Province on the part of the plaintiff, and in particular, the proper and legitimate roles played by counsel for opposing parties in an adversarial system and the finality of concluded settlements and judgments.
[14] I am satisfied that, on the authorities, it is open to me to exercise a discretion to award costs on a substantial indemnity basis in the present circumstances. The plaintiff’s allegations against the defendants who seek substantial indemnity costs were extremely serious and unfounded and sought to attack their integrity in an unjustified manner, without any basis or foundation. As such, the actions of the plaintiff could possibly attract condemnation by an award of substantial indemnity costs.
[15] By the same token, it must be remembered that an award of substantial indemnity costs, in a case where Rule 49 (Offers to Settle) is not under consideration, is to be regarded as exceptional and rare. The rules of course apply equally to unrepresented parties as to parties represented by counsel. Notwithstanding this, although it is close to the line, I would exercise my discretion not to award costs on a substantial indemnity basis in this particular case. I am not satisfied that the plaintiff was motivated by outright malice towards the defendants or had an intent to cause them actual harm, but rather, she seems to have been under a mistaken impression that the inclusion of multiple inflammatory allegations in the Statement of Claim, albeit without any factual or legal support, would somehow attract the attention of the court and would work to her advantage.
Disposition
[16] The plaintiff did not dispute the hourly rates or time spent by counsel for the Crown and for Oldfield, Greaves, D’Agostino, G. Edward Oldfield and Terrance J. Billo, and I do not find their claims for costs on a partial indemnity basis to be unreasonable. I would therefore allow their claims for costs as claimed in the sums of $8,600 and $10,400 respectively.
[17] Without carrying out a detailed mathematical calculation, I would allow, in the exercise of my discretion, costs on a partial indemnity basis to South East Grey Support Services, Irwin Dowker, Guarantee Company of North America and Temple Insurance in the sum of $21,000, to Catherine P. Watson and Catherine P. Watson Professional Corporation in the sum of $14,500, and to Elizabeth Bowker, Iain Peck and Stieber Berlach LLP in the sum of $19,400.
[18] These amounts are inclusive of fees, disbursements and HST.
[19] The plaintiff is ordered to pay the foregoing costs within 30 days hereof.
D.A. Broad, J.
Date: March 7, 2014