ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-114-0000
DATE: 2014/03/20
BETWEEN:
STEPHEN HULL
Appellant
– and –
THE CORPORATION OF THE TOWN OF GREATER NAPANEE
Respondent
In Person
James L. McDonald , for the Respondent
HEARD: By Written Submission
RULING ON COSTS
Mr. Justice Douglas Rutherford
[1] Following release of reasons for judgment in this appeal application, the parties exchanged and provided written submissions as to the disposition of costs.
[2] The appellant, Mr. Hull, argued that he should bear no obligation to pay costs, reiterating his position that blame for his dilemma relating to the use of his property properly lay at the feet of the respondent by reason of its failure to ensure that the Crock property was kept in compliance with the Building Code. He repeats his refutation made at the hearing of the engineering evidence “which suggests that any repairs are necessary in order to render the Crock property safe.” He also repeated complaints about the conduct of Napanee’s building officials and about the respondent’s bill of costs concerning disbursements for copying documents.
[3] Counsel for the respondent filed a detailed bill of costs showing total fees and disbursements of $49,450.36, and confirmed that the municipality had been billed on the basis of what is shown in the bill of costs. The submission of the respondent is that it should be awarded 100% substantial indemnity, or in the alternative, 60% partial indemnity in the amount of $31,257.58. Counsel submits that a substantial or full indemnity award would be justified in light off the serious allegations of malice and misconduct on the part of municipal officials made by Mr. Hull, allegations I was not persuaded of at the hearing. Counsel also pointed out that Mr. Hull’s decision not to retain legal counsel added unnecessary complication, prolonging the proceedings and driving up costs to the municipality. Mr. McDonald said:
The Appellant improperly commenced this proceeding in Small Claims Court. The error resulted in costs thrown away by the Respondent for filing a Defence, attending at a Settlement Conference hearing and then a subsequent plaintiff motion to have the matter transferred to the Superior Court of Justice. Once transferred, three further appearances were necessary (assignment court and two lengthy judicial pre-trials), to canvass settlement, attempt to educate the Appellant as to court processes and procedure and establish a timetable for the hearing of the appeal. The actual appeal hearing should have been the only hearing necessary; however it was the sixth appearance.
[4] Costs elevated beyond partial indemnity levels are warranted only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. It might not be impossible to view some of Mr. Hull’s conduct, particularly some of the accusations he has levelled at municipal officials, as falling within the kind of thing that could attract an award of elevated costs, however, as I noted in my reasons for judgment, one can’t but have some sympathy for Mr. and Mrs. Hull over the dilemma they faced. I am not persuaded to award full indemnity costs in the circumstances.
[5] I do, however, agree with Mr. McDonald’s observation that Mr. Hull’s not having a lawyer protracted the proceedings enormously and escalated the legal costs to the municipality and its ratepayers significantly. Mr. Hull asserts that he simply could not afford to retain a lawyer. One might respond that he could not afford not to, in the circumstances. In any event, as Glithero J. notes in Suserski v Nurse, [2007] O.J. No. 965 (Sup. Ct.) “…one will always have some sympathy for a self-represented plaintiff seeking to advance a case of this nature. On the other hand, the fact that a person is self-represented cannot be allowed to become tantamount to an immunity against paying cost.”
[6] As to the costs bill the disbursements seem reasonable, subject to $2,216.45 charged for the item “Photocopies (numerous colour copies given; Plaintiff’s disclosure demands and requirements for pictures.” In his written submission, counsel for Napanee explains:
Additional time and resources were spent responding to a broad ranging disclosure request made by the Appellant in advance of cross-examinations (both through counsel and with the Town as a request under the Municipal Freedom of Information and Protection of Privacy Act). The Appellant requested a copy of all records of the Respondent in relation to both properties 115 and 117 John Street North. Given the allegations of malice and mala fides in the Notice of Appeal, the Respondent acceded to the disclosure. However, considerable time was required to obtain all Town documentation and correspondence related to the building, review and vet it for privilege, and provide it to the Appellant.
[7] It seems to me that given the obligation of the municipality to disclose under the Municipal Freedom of Information and Protection of Privacy Act and that the Regulations thereunder provide for a fee of twenty cents a page for such disclosure, allowing such photocopying charges in addition, as litigation expenses would not be appropriate.
[8] As for the fees aspect of the Bill of Costs, Mr. McDonald, called in 2009, who did the lion’s share of the work, charges at $245 an hour while an hour of a Law Clerk is charged at $155 and 5.4 hours of Legal Assistants’ time is charged at $85 per hour. It seems to me that all those rates are at the high end of what would be appropriate. Moreover, among the details in the description of the work done is “Receive disclosure request from S. H. Hull and Review and arrange for photocopying of Town of Greater Napanee disclosure documents (four volumes in total); serve on S. Hull.” As with the photocopying disbursement, it seems to me that some of the work billed for, albeit connected to the litigation, flows from the disclosure obligation on Napanee under the freedom of information legislation and should not be included in the litigation costs award. I am inclined to reduce the fee total somewhat in determining the total award. I have no data on which to reduce the fee total precisely and will have to estimate a fair reduction.
[9] In my view, trying to balance all the factors in order to arrive at a fair and proportional award, one based on what a reasonable person would expect to have to pay for similar legal work, I would reduce the total fees and disbursements to $38,000 and fix a partial indemnity award of cost payable by Mr. Hull to Napanee, through the Cunningham Swan law firm, at $22,000 inclusive of HST. I take the $200 being held by Cunningham Swan in trust for Mr. Hull on account of photocopying as having been paid on account of costs, which would mean that the costs award was actually $22,200.
Order accordingly.
Rutherford J.
Released: March 21, 2014
HULL v. GREATER NAPANEE (Town), 2014 ONSC 1829
COURT FILE NO.: CV-13-114-0000
DATE: 2014/03/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHEN HULL
Appellant
– and –
THE CORPORATION OF THE TOWN OF GREATER NAPANEE
Respondent
REASONS FOR JUDGMENT
Mr. Justice Douglas Rutherford
Released: ** March 21, 2014**