ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-486591
DATE: 20140924

BETWEEN:

ONTARIO PROFESSIONAL FORESTERS ASSOCIATION

Applicant

– and –

PAUL ROBERTSON, Personally, and PAUL ROBERTSON, Carrying on Business as Trees Unlimited or Trees Unlimited Forestry Consultant

Respondents

Lisa S. Braverman and Julie Maciura for the Applicant

Thomas A. Richardson and Monique D. Atherton for the Respondents

HEARD: In writing

PERELL, J.

REASONS FOR DECISION – COSTS

[1] This is a costs decision in what may be described as an unauthorized practice proceeding where a profession’s regulator, in this case, the Ontario Professional Foresters Association (the “OPFA”), brings proceedings to enjoin unauthorized or unlawful practice of the profession.

[2] In this case, the OPFA brought an Application for an interim and final order directing the Respondents, Paul Robertson, personally, and Paul Robertson, carrying on business as Trees Unlimited or Trees Unlimited Forestry Consultant (“Paul Robertson”), to comply with sections 13 and 14 of the Professional Foresters Act, 2000. In reasons reported as Ontario Professional Foresters Association v. Robertson, 2014 ONSC 4724, I granted the OPFA’s motion to amend its Notice of Application, but I dismissed the Application.

[3] Mr. Robertson now seeks costs of $127,070.33 on a substantial indemnity basis, all inclusive, or in the alternative, costs of $118,407.17, all inclusive, on a partial indemnity basis before, and a substantial indemnity basis after, an offer to settle dated January 16, 2014.

[4] The OPFA submits that that there should be no order as to costs, or in the alternative, it submits that the appropriate award should be costs of $20,000, all inclusive.

[5] For the reasons that follow, I award the Respondents $90,000, all inclusive, on a partial indemnity basis.

[6] The OPFA submits that there should be no order as to costs because it had a statutory duty to seek remedies against persons practicing professional forestry or holding themselves as professional foresters and by doing so it raised novel issues of public importance and of public interest. It submits that the state of the law about the unauthorized practice of professional forestry was uncertain and there was little jurisprudence and that the case was largely a matter of first instance on an issue of public importance.

[7] The decision to award costs is discretionary, and judges and masters have the discretion to reduce the amount of costs or to order that there be no order as to costs in a variety of circumstances including:

• the proceeding raises novel issues, the resolution of which is in the public interest, including, for example, the interpretation of a statute: Re Canada 3000 Inc., 2005 18858 (ON SC), [2004] O.J. No. 1962 (C.A.); Dam Investments Inc. v. Ontario (Minister of Finance), 2007 ONCA 527, [2007] O.J. No. 2674 (C.A.) at para. 20; Sutcliffe v. Ontario (Minister of the Environment), 2004 34994 (ON CA), [2004] O.J. No. 4494 (C.A.) at para. 1; Valpy v. Ontario (Commission on Election Finances), 1989 4330 (ON SC), [1989] O.J. No. 66 (Div. Ct.) at para. 22; Gombu v. Ontario (Assistant Information and Privacy Commissioner), [2002] O.J. No. 2570 (Div. Ct.) at paras. 3-4; Mahar v. Rogers Cablesystems Ltd., [1995] O.J. No. 3711 (Gen. Div.) at paras. 2, 7; College of Optometrists of Ontario v. SHS Optical Ltd., [2003] O.J. No. 3499 (S.C.J.) at paras. 3-4; Seetal v. Quiroz, [2009] O.J. No. 3124 (S.C.J.); O’Dea v. Real Estate Council of Ontario, [2011] O.J. No. 247 (S.C.J.) at paras. 9-11; Kelly v. Ontario, [2014] O.J. No. 3373 (S.C.J.) at paras. 49-51;

• the proceeding is a test case: Dickason v. University of Alberta, 1992 30 (SCC), [1992] S.C.J. No. 76 at para. 56;

• the state of the law is uncertain or under development or underdeveloped and it is in the public interest that the question be resolved: Woodhouse v. Woodhouse, 1996 902 (ON CA), [1996] O.J. No. 1975 (C.A.) at para. 57; Guelph (City) v. Wellington-Dufferin-Guelph Health Unit, 2011 ONSC 7523, [2011] O.J. No. 6009 (S.C.J.) at paras. 1, 4, 46;

• the unsuccessful party qualified as a public interest litigant: Incredible Electronics Inc. v. Canada (Attorney General), 2006 17939 (ON SC), [2006] O.J. No. 2155 (S.C.J.);

• the unsuccessful party is a government or public authority or regulator acting in the public interest; Re Canada 3000 Inc., supra, at paras. 8-9, 12-13, 15; Guelph (City) v. Wellington-Dufferin-Guelph Health Unit, supra; College of Optometrists of Ontario v. SHS Optical Ltd., supra.

[8] In the case at bar, there are factors that might justify making no award as to costs; however, the matter of relieving the unsuccessful party of its exposure to a costs award remains discretionary, and in my opinion, the OPFA should pay costs on a partial indemnity basis.

[9] Regardless of whether it thought it was doing so in the public interest, the OPFA engaged in fiercely-fought litigation against Mr. Robertson who was understandably compelled to defend his livelihood, business, and reputation. The OPFA impugned the professional competence of Mr. Robertson’s supervisor and were aggressive in attempting to prove that Mr. Robertson was engaged in an unauthorized practice of professional forestry. The OPFA was resolute and persistent in pursuing its case against Mr. Robertson and was committed to winning, and I have no doubt that it would have expected Mr. Robertson to pay costs if he failed in his defence. In the circumstances of this case, it should come as no surprise to the OPFA that a court would exercise its discretion and order it to pay costs. Professional organizations that have a mandate to regulate in the public interest do not get an automatic pass on the normal rules of costs.

[10] There, however, was nothing egregious or improper about the OPFA’s conduct, and I see no reason, including the exchange of some offers to settle, to justify costs on a substantial indemnity basis. Neither party was going to capitulate, and it became a matter of principle for the OPFA to see the matter through to a court ruling. The OPFA lost, and costs on a partial indemnity basis should follow in the normal course.

[11] The OPFA submits that the partial indemnity costs should be fixed at $20,000, all inclusive.

[12] I disagree. In my opinion, the costs should be assessed in accordance with the normal principles that guide the court’s discretion, including the factor of whether the costs are within the reasonable expectations of the losing party, which in this case was a party pursuing very vigorous and resolute litigation.

[13] The OPFA did not disclose what its partial indemnity costs were, but there can be no doubt that they were considerable and well beyond $20,000, all inclusive.

[14] Mr. Robertson’s costs outline indicates that his partial indemnity costs were $66,423, plus $2,000 for the preparation of costs submissions. The disbursements were $12,483.35. With applicable taxes, the partial indemnity claim for costs is $89,541.34, all inclusive.

[15] Having reviewed the Respondents’ costs outline, in my opinion, there was perhaps some over-lawyering, but this was a very serious matter for Mr. Robertson, and, in my opinion, with a modest downward adjustment, the amount claimed for costs is reasonable and within the reasonable expectations of the OPFA.

[16] Accordingly, I award the Respondents partial indemnity costs of $90,000, all inclusive.

Perell, J.

Released: September 24, 2014

COURT FILE NO.: CV-13-486591
DATE: 20140924

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ONTARIO PROFESSIONAL FORESTERS ASSOCIATION

Applicant

– and –

PAUL ROBERTSON, Personally, and PAUL ROBERTSON, Carrying on Business as Trees Unlimited or Trees Unlimited Forestry Consultant

Respondents

REASONS FOR DECISION – COSTS

PERELL J.

Released: September 24, 2014