SUPERIOR COURT OF JUSTICE – ONTARIO
CITATION: Tansley v. Tansley, 2015 ONSC 2459
COURT FILE NO: FS 14-63BRT
DATE: 2015-June-30
RE: Loralin Lee Tansley v. Robert Mark Tansley
BEFORE: The Honourable Mr. Justice R.J. Harper
COUNSEL: P. Amey for the Applicant
G. Smits, for the Respondent
R. W. England, counsel on motion for Brant CAS
C O S T S E N D O R S E M E N T
Issues
[1] The Applicant seeks costs subsequent to my endorsement allowing her motion for disclosure. In my ruling I commented as follows:
[22] In this motion before me, the plaintiff has brought an action for damages as a result of what she claims is a breach of the deemed undertaking rule by the defendant. Her claim is that the defendant communicated with the CAS, the Board and the College of Social Workers and in those communications he used transcripts that were obtained in the course of the conduct of a previous proceeding between these parties.
[23] The plaintiff submits that she cannot properly advance her claim without the disclosure of all communication between the defendant and the above mentioned parties that is related to information that is caught by the deemed undertaking rule.
[24] The CAS is concerned that they may be breaching confidentiality that may be a part of the CFSA prohibition on disclosure of information. The Board made an order that their proceedings were confidential. The College claims that their process is confidential.
[25] I must balance the need for a party to be able to properly advance their case with the need to protect any privilege. In my view this can be accomplished by allowing the production of all communication between the defendant and the CAS, the Board and the College that relates to any information that was obtained by the defendant within the previous libel action between the plaintiff and the defendant. Any information of documentation received by the plaintiff shall be sealed except for the proper use within these proceedings.
[2] Rule 57.01 of the Rules of Civil Procedure reads as follows:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
[3] The Children’s Aid Society of Brant is not seeking costs. They also do not take a position with respect to the costs that are sought by the applicant.
[4] The applicant was successful in her motion. The part of the motion relating to disclosure of Brant Family and Children’s services records relating to any complaint filed by the respondent that was made with respect to the applicant was settled at the outset of the motion. The respondent consented to this motion.
[5] I find that the remaining issue was not complicated and could have been settled in the manner in which my order was eventually structured.
[6] Under the circumstances the applicant is entitled to partial indemnity costs.
[7] I have reviewed the Bill of Costs of Mr. Amey. He is a senior counsel and I have no difficulty with the hourly rates that he sets out in his Bill of Costs. I also do not have any concerns with respect to the amount of time he spent for preparation and argument. Mr Amey claims the following partial indemnity costs:
Fees $ 2,715.00
HST $ 352.95
Disbursements $ 160.46
Total $3,228.41
[8] The respondent shall pay costs to the applicant in the amount of $3,228.41 inclusive of fees disbursements and HST within 30 days of this endorsement.
Harper J.
DATE: June 30 2015