SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-616-00
DATE: 2014 Dec 05

RE: GEORGE ROBINS, Plaintiff

AND:

WAYNE KENNETH WAGAR, JAMIE ALVES, and THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, TYENDINAGA MOHAWK POLICE, NORTH SHORE TABACCO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, LILY LAFORTE, JAMES KUNKEL AND THE MOHAWKS OF THE BAY OF QUINTE, Defendants

BEFORE: The Honourable Mr. Justice Douglas M. Belch

COUNSEL:
Donna M. Crabtree, Counsel, for the Defendant/Moving Party, The Mohawks of the Bay of Quinte

Sunil Mathai and Nadia Laeeque, Counsel, for the Defendant, Her Majesty the Queen in Right of Ontario

costs endorsement

[1] On July 11, 2014, I released my decision dismissing, as statute barred, the request of the Mohawks of the Bay of Quinte (The Band) for leave to amend its Statement of Defence to add a Cross-Claim against both Ontario and Canada. This decision concerns Ontario’s claim for costs of $6300.

[2] Canada had also been successful on the motion. The salient features of Canada’s claim for costs were:

• the time expended, 52.69 hours;

• the hourly rate, $152;

• disbursements of $417.09; and

• the fact there is no evidence of the year of counsel’s call to the bar.

[3] The Band and Canada settled Canada’s costs at $4200, all in.

[4] The parties agree the successful party is entitled to costs on a partial indemnity basis. The overriding principle in awarding costs is to fix a fair and reasonable amount for the unsuccessful party to pay rather than an amount determined by the actual cost incurred by the successful litigant.

[5] Rule 57.01 provides a broad range of factors to be considered by a court in exercising its discretion in fixing appropriate costs. The parties mentioned other factors they considered important. The hourly rate charged by the successful litigant is relevant; the successful litigant is not to receive a windfall. The court must consider whether the time claimed is reasonable, the complexity of the proceedings and the importance of the issues to the parties. The court has taken all of these factors into consideration in arriving at its decision.

HOURLY RATES

[6] The parties chose differing yardsticks. Ontario relied upon the communication, “Information for the Profession” which provides guidance for determining the maximum rates for partial indemnity costs. The Band implied where government is concerned there are charge- out rates when departmental work was done and these rates were lower than partial indemnity rates. It pointed to the hourly rate charged by Canada, namely, $152 an hour. Ontario takes the position its charge- out rate is irrelevant. Further, costs are not to be reduced because they are being claimed by the Crown and evidence of the actual cost of the legal services rendered is not required when fixing costs in favor of the Crown. The appropriate approach is to focus on whether the costs claimed by the Crown are fair and reasonable and fall within the reasonable expectation of the parties.

OPPORTUNISM

[7] The Band submits Ontario was aware that The Band was acting under a misapprehension and waited until after the limitation period expired to raise the issue of the limitation period. It alleges there is an element of opportunism in this conduct which should not be rewarded. Ontario disputes this replying it only became aware of The Band error when The Band advised all counsel it had a cross-claim against Ontario. Ontario submits it did not wait for a limitation period to expire to raise the issue of limitation. Rather, Ontario only realized the error when The Band attempted to Cross-Claim with its request to amend pleadings.

POSITION OF ONTARIO

[8] In its submission on costs, Ontario advised its two counsel spent 52.69 hours on this motion. Ontario requests $300 an hour for its senior counsel, the amount suggested in the “Information for the Profession” for counsel of 10 years’ experience. Its senior counsel having been called in 2004 had 10 years of experience. Ontario claimed $200 an hour for junior counsel. Ontario reduced the number of hours it claimed from 52.69 to 23 and applied the above rates and the total was $6300.

POSITION OF THE BAND

[9] Counsel for The Band submits:

a. Because of the opportunism, each party should bear its own costs; and

b. In the alternative, Ontario should be awarded partial indemnity costs; the hourly rate of Ontario should be assumed to be $152 an hour and reduced so Ontario will not receive a windfall.

[10] Ontario replies if the court finds it reasonable to reduce the hourly rates charged by counsel, the actual time spent on responding to the motion ought then to be considered as opposed to the reduced hours provided in Ontario’s costs outline.

[11] Ontario argues The Band did not provide its costs outline. Ontario submits the court is entitled to draw an adverse inference and find The Band’s rates and time spent is equivalent to those of Ontario. Furthermore, the time spent is not so “grossly excessive as to be obvious overkill.”

[12] Counsel for The Band points out Ontario did not file a motion record, but did file a factum and book of authorities. Counsel questions the actual rates of Ontario’s two counsel noting the senior counsel was just barely out 10 years and there were also concerns about the rate of Junior counsel who had been called in 2010.

ANALYSIS AND CONCLUSION

[13] There is no evidence upon which to make a finding Ontario had waited for the limitation period to expire taking advantage of counsel’s error. The court will not be taking the allegation of opportunism into account in fixing costs.

[14] While both sides submitted this was a straightforward motion, not overly complex, the issues raised were of importance to the parties. It is the court’s belief that any motion dealing with a missed limitation is of real significance to the parties.

[15] If a court is to follow the principle that costs should be fixed in an amount the unsuccessful litigant would reasonably expect to pay then comparison evidence of what that litigant had paid its own counsel would assist in addressing the appropriateness of Ontario’s request. Unfortunately, the court has neither Ontario’s actual rate nor what The Band paid its own counsel. We do know two counsel for the Atty. Gen. of Canada spent 52.92 hours on this motion and applied an hourly rate of $152 for a total of $8049.14 plus disbursements of $417.09. Canada settled its costs for $4200 and it, like Ontario was successful on the motion. There is no evidence of the seniority of Canada’s counsel or why it chose to discount its bill by 50%.

[16] It appears Ontario’s senior counsel had just celebrated the 10 year anniversary of his call to the bar. Perhaps, some of his time had been spent during his ninth year of practice, but as no time dockets complete with dates were supplied the court has no way of finding when the work was actually done. However, it seems Ontario complied with the spirit of the “Information to the Profession” and counsel was a lawyer of 10 years’ experience. This does not address the issue of hours spent.

[17] Were the number of hours (52.69) spent on this motion by Ontario reasonable? I am satisfied the hours spent were reasonable given Canada spent almost exactly the same time, (52.92).

[18] What we have is a difference of approach. Ontario sticks to the rates suggested in the “Information to the Profession.” It then reduces the hours by more than 50%. The Band argues the correct approach is to discover the actual charge- out rate which it suggests is $152 an hour. If the court was to apply $152 an hour as the Band suggests to the actual hours spent, 52.69, the total bill would be $8466.23 which is substantially more than Ontario’s request of $6300. Counsel for the Band then argues that amount should be reduced further to prevent a windfall. The court assumes the Band expects a 50% discount like it received from Canada, however, this does not take into account the fact the hours have already been reduced by more than 50% by Ontario. It also overlooks the fact that during the argument of the motion while both the counsel for Ontario and Canada presented their client’s position I am satisfied Ontario took the lead in arguing the motion.

[19] Exercising my discretion and taking into consideration all of the submissions of the parties, I am satisfied Ontario is entitled to costs in the amount of $6000 including fees, disbursements, and HST, where and if applicable.

Belch, J.

Released: December 5, 2014

COURT FILE NO.: CV-09-616-00

DATE: 2014 Dec 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE ROBINS, Plaintiff

AND:

WAYNE KENNETH WAGAR, JAMIE ALVES, and THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, TYENDINAGA MOHAWK POLICE, NORTH SHORE TABACCO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, LILY LAFORTE, JAMES KUNKEL AND THE MOHAWKS OF THE BAY OF QUINTE, Defendants

COSTS ENDORSEMENT

Belch, J.

Released: December 5, 2014