CITATION: City of Hamilton v. Attorney General et al., 2015 ONSC 1837
COURT FILE NO.: C-383-04
DATE: 2015-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
City of Hamilton
Plaintiff
Attorney General of Canada, Christine Stewart, David Anderson Herb Dhaliwal, Sheila Copps, Nancy Adams, Paul Bernier, W. Bill Bien, Edwin R. De Bruyn, Steve Burgess, Mike Cadman, Paula Caldwell, Robert Connelly, Rob Dobos, Margit Doneit, John Fischer, Rosaline Frith, Nicole Gagnier, Denise Gibbs, Cathy Gee, Jonathan H. Gee, Sid Gershberg, D. V. Gillman, Carole Giroux, Ian Glen, Michael Goffin, Francois Guimont, Len Good, Keith Grady, Barbara Hennessy, Michaela Huard, Wayne Hyatt, Louise Knox, Mary Komarynsky, Janice Kostash, Olivier Lalande, Deb Lauder, Patrice Leblanc, Sharon Leonhard, Simon Llewellyn, Nancy Maguire, Laud Matos, Claire Michaud, John Mills, Tom Muir, Brad Parker, L.S. Parsons, Raymond Pierce, Richard Pratt, Ulana Perovic, Kim Ray, David Robinson, Michael Rayner, Guy Riverin, David Robinson, Craig Ryan, Nathalie Seguin, Michael Shaw, Ron Shimizu, Mike Shiomi, Jeff Stein, Rob Stevens, Donna Stewart, John Struger, Gerry E. Swanson, Lucie Tessier, Lisa Vitpls, Wayne Wouters, Bruce Young
Defendants
Scott Smith, Ross Earnshaw, for the Plaintiff
Glynis Evans, for the Defendants
THE HONOURABLE MR. P.B. HAMBLY
Ruling On Costs on Bifurcation Motion
[1] I rely on the facts and reasons set out in my judgment. The defendants were successful. They claim costs in the amount of $30,463.85 consisting of counsel fees of $29,000 and disbursements of $1,465. The plaintiff concedes that the defendants are entitled to their costs. They also concede that the hourly rates claimed by the defendants are modest and the disbursements should be allowed in full. Their only objection is to the 77 hours claimed for the preparation of the affidavit of John Lucki which they allege was “an extraordinary effort for a procedural motion”.
[2] The plaintiff claims a total amount of $75,000,000 consisting of $50,000,000 in damages and $25,000,000 in punitive and exemplary damages. Their claim is based on allegation of misfeasance in public office by the federal cabinet ministers and their advisors which they have named as defendants. I referred in my judgment at para. 27 to the decision of the Supreme Court of Canada in the judgment of Justice Iacobucci in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 in which he stated that to be successful in an action based on an allegation of misfeasance in public office that the “…the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.” (para. 32) In my judgment I held that the issues of liability and damages were interrelated. The plaintiff could not establish that the defendants were liable for their damages without also proving that it suffered damages as a result of the conduct of the defendants.
[3] Mr. Lucki, in his affidavit, made an extensive review of the evidence that the plaintiff had produced to date and which the plaintiff sought from the defendants that related to both liability and damages. The defendants referred at length in their factum to Mr. Lucki’s affidavit. This material was very helpful to me in understanding the issues. In Tri-Investments Ltd. v. Vong [1991] O.J. No. 2292 Justice Feldman (as she then was, now Feldman J.A.) stated that “I do not view it to be the court's function when fixing costs to second-guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.” I am not prepared to reduce the amount claimed by the defendants on the basis that the hours spent by Mr. Lucki in the preparation of this affidavit were excessive.
[4] I am aware of the principles enunciated by the Court of Appeal in the judgment of Justice Armstrong in Boucher v. Public Accountants Council (Ontario) (2004), 2004 ONCA 14579 (ON CA), 71 O.R. (3d) 291(O.C.A.). I find that bill of costs of the defendants to be reasonable and proportionate to what was at stake. I allow it in full. I order that the plaintiff pay costs to the defendants in the amount of $30.463.85.
P.B. Hambly, J.
Released: March 20, 2015
CITATION: City of Hamilton v. Attorney General et al., 2015 ONSC 1837
COURT FILE NO.: C-383-04
DATE: 2015-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
City of Hamilton
Plaintiff
Attorney General of Canada, Christine Stewart, David Anderson Herb Dhaliwal, Sheila Copps, Nancy Adams, Paul Bernier, W. Bill Bien, Edwin R. De Bruyn, Steve Burgess, Mike Cadman, Paula Caldwell, Robert Connelly, Rob Dobos, Margit Doneit, John Fischer, Rosaline Frith, Nicole Gagnier, Denise Gibbs, Cathy Gee, Jonathan H. Gee, Sid Gershberg, D. V. Gillman, Carole Giroux, Ian Glen, Michael Goffin, Francois Guimont, Len Good, Keith Grady, Barbara Hennessy, Michaela Huard, Wayne Hyatt, Louise Knox, Mary Komarynsky, Janice Kostash, Olivier Lalande, Deb Lauder, Patrice Leblanc, Sharon Leonhard, Simon Llewellyn, Nancy Maguire, Laud Matos, Claire Michaud, John Mills, Tom Muir, Brad Parker, L.S. Parsons, Raymond Pierce, Richard Pratt, Ulana Perovic, Kim Ray, David Robinson, Michael Rayner, Guy Riverin, David Robinson, Craig Ryan, Nathalie Seguin, Michael Shaw, Ron Shimizu, Mike Shiomi, Jeff Stein, Rob Stevens, Donna Stewart, John Struger, Gerry E. Swanson, Lucie Tessier, Lisa Vitpls, Wayne Wouters, Bruce Young
Defendants
Costs judgment
P.B. Hambly, J.
Released: March 20, 2015