O'Farrell, Caroline Mary Sarah et al. v. Attorney General of Canada et al.
ONSC 477
FILE NO.: 13-57685
DATE: 2014/01/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: O’Farrell, Caroline Mary Sarah et al. Plaintiffs
AND
Attorney General of Canada et al. Defendants
BEFORE: The Honourable Justice Michel Z. Charbonneau
COUNSEL: Peter Cronyn, Christopher Rootham for the Plaintiffs
Michael Roach, Luc Boivin for the Defendants, Attorney General of Canada
Thomas F. Wallis for the Defendant, Kevin Baillie
Pierre Champagne for the Defendant, Gary Beam,
Louise Morel for the Defendant, Sylvain Berthiaume,
David Elliott for the Defendant, Greg Chiarot
Peter G. Hagen for the Defendant Francois Duguay,
Peter G. Hagen for the Defendant Christine Mackie-Windover
Jacques A. Emond for the Defendants, Marc Godue and Mike Herchuk,
Lawrence Greenspon for the Defendant, Cory Hoehn,
Thomas G. Conway for the Defendant, David Kopp,
Donald F. Morris for the Defendants, Gerry Ogilvie and Michael Robblee,
HEARD: Written submissions
ENDORSEMENT ON COSTS
[1] I have now had the opportunity of reviewing the written submissions on costs of all parties.
[2] The defendant, Attorney General of Canada, brought a motion to stay the plaintiff’s claim and was completely successful. Costs should follow the event.
[3] The submissions raise 3 issues:
a) What is a reasonable amount of costs that should be awarded on a partial indemnity basis?
b) Should the costs be made payable forthwith or on some other basis?
c) Should the other individual defendants who supported the Attorney General’s motion but did not deliver a motion record be granted costs, and if so, what amount?
QUANTUM
[4] I agree with the plaintiffs’ submissions that the amount claimed by the Attorney General is excessive. The matter was important but not complex. The case law was overwhelmingly in favour of the defendant and the applicable principles were straightforward.
[5] This is a motion which has been brought and argued numerous times by the Attorney General in the past. I cannot accept that it was reasonable for the plaintiffs to expect that the number of claimed hours for preparation would be required if they chose to dispute the motion.
[6] It is very unfortunate that the plaintiffs failed to deliver a cost outline as required by the rules. This makes the court’s work more difficult.
[7] I find a reasonable amount of costs to partially indemnify the Attorney General is $8,000.00.
WHEN PAYABLE
[8] I accept the plaintiff’s submissions that the costs should not be paid forthwith. The long delay which will be required before the parties find out whether the action is totally or partially barred by section 9 of the Crown Liability And Proceedings Act militates against immediate payment.
[9] The plaintiffs will be in a much more difficult financial position pending that decision. On the one hand the Attorney General will not suffer any prejudice if payment is deferred.
[10] I do not accept however that the costs should be simply payable in the cause. The motion raised a discrete issue which has nothing to do with the ultimate merits of the case. The plaintiffs chose to defend the motion and they ought to have known that their objection would likely fail and that an award of costs was the expected consequence.
[11] I therefore order costs of $8,000.00 to the defendant Attorney General in any event of the cause.
INDIVIDUAL DEFENDANTS
[12] I find that the individual defendants have failed to show they should be indemnified for their support of the motion. Even those defendants who filed a factum contributed very little if anything to the debate. It was their choice to participate but they cannot ask the plaintiffs to absorb any part of the costs resulting from that decision.
[13] The individual defendants are not entitled to any costs.
Charbonneau, J.
Date: January 21, 2014
O’Farrell, Caroline Mary Sarah et al. v. Attorney General of Canada et al. ONSC 477
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: O’Farrell, Caroline Mary Sarah et al. Plaintiffs
AND
Attorney General of Canada et al. Defendants
BEFORE: The Honourable Justice Michel Z. Charbonneau
COUNSEL: Peter Cronyn, Christopher Rootham, for the Plaintiffs
Michael Roach, Luc Boivin for the Defendants, Attorney General of Canada
Thomas F. Wallis for the Defendant, Kevin Baillie
Pierre Champagne for the Defendant, Gary Beam,
Louise Morel for the Defendant, Sylvain Berthiaume,
David Elliott for the Defendant, Greg Chiarot
Peter G. Hagen for the Defendant Francois Duguay,
Peter G. Hagen for the Defendant Christine Mackie-Windover
Jacques A. Emond for the Defendants, Marc Godue and Mike Herchuk,
Lawrence Greenspon for the Defendant, Cory Hoehn,
Thomas G. Conway for the Defendant, David Kopp,
Donald F. Morris for the Defendants, Gerry Ogilvie and Michael Robblee,
ENDORSEMENT
Charbonneau, J.
Released: January 21, 2014