SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-499398

DATE: 20140625

RE: Attorney General of Ontario, Applicant

– AND –

$787,940 in Canadian Currency, 2006 BMW Motor Vehicle (Plate: BHPF716 Vin: WBAVB33546AZ85122), Condominium Unit 1222 – 165 Legion Road North Toronto, Condominium Unit 1225 – 165 Legion Road North Toronto, Four Money Counters and Two safes (IN REM), Respondents

BEFORE: Justice E.M. Morgan

COUNSEL:
James McKeachie, for the Applicant

Anthony Moustacalis, for Brauti Thorning Zibarras LLP, Anja Alibegovic, Daniel Vidakovic, Alen Alibegovic, Sani Aligegovic, Ervina Vidakovic, and as agent for Chris Murphy on behalf of Nada Vidakovic

HEARD: April 30, 2014, with written submissions on costs

COSTS ENDORSEMENT

[1] On May 20, 2014 I released a judgment in this matter. At that time I requested written submissions on costs from both counsel, and have now received those submissions.

[2] The parties represented by Mr. Moustacalis (who, for the sake of convenience, will be referred to as the “Respondents”) were the successful parties in the Application. They succeeded in recovering the property that had been seized by the police and that had otherwise been ordered returned by the Ontario Court of Justice on February 3, 2014.

[3] Counsel for the Applicant submits that this is a case in which no costs should be awarded. Mr. McKeachie, on behalf of the Attorney General of Ontario, puts the point as follows: “Where an unsuccessful party has brought a proceeding in good faith, in the public’s interest, the Court may relive that party from the burden of costs.” In support of that proposition, he cites Magder v Ford, [2013] OJ No 1489. In particular, at para 8 of Magder, the Divisional Court observed that, “[w]hile we would not characterize the respondent as a ‘public interest litigant’ just because he brought this litigation as an elector, the clarification of significant and novel legal issues is in the public interest.”

[4] With respect, the attempt to analogize the present Application with the Magder case is misplaced. In Magder, the proceedings were brought by a city resident and elector alleging misconduct by the mayor. The named party that instigated the proceedings had no interest other than as a member of the municipal public and would have gained no more than any other member of that public had he been successful.

[5] The Applicant here, by contrast, seized the Respondents’ property and sought to keep it. While it is true that the Applicant is a branch of government, that alone does not mean that everything it does is in the “public interest” in a way that negates an award of costs against it.

[6] If the Attorney General engages in civil litigation with a member of the public over rights to specific property, the Attorney General is generally subject to the same cost considerations as any other litigant. I note that very recently in Ontario (Attorney General) v 20 Strike Avenue, 2014 ONCA 395, at paras 104-105, the Court of Appeal found that a successful respondent in an application like this one, involving the seizure by the Attorney General of Ontario of what was alleged to be proceeds of crime, deserves its costs against the Attorney General.

[7] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c ). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA), at paras 26, 37.

[8] The parties engaged in substantial research in presenting their respective arguments; the factums on both sides were quite thorough. The Respondents have requested costs on a partial indemnity basis of just over $15,700. In my view, this is a modest request given the amount of property at stake in the application ($787,940 in cash, together with two condominium units and a BMW automobile) and the complexity of the legal issues at stake. While the Attorney General has not submitted a costs outline setting out what it would have requested had it been successful, it is unlikely that the reasonable amount requested by the Respondent would have been beyond the Attorney General’s expectations.

[9] The Applicant shall pay the Respondents a total of $15,700, inclusive of all disbursements and HST.

Morgan J.

Date: June 25, 2014