ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 04-CV-281243CM2
DATE: 20150706

BETWEEN:

E. ANTHONY ROSS
Plaintiff

– and –

PINAYMOOTANG FIRST NATION, also known as FAIRFORD FIRST NATION, also known as FAIRFORD BAND and HARRIS & HARRIS LLP, also known as HARRIS & HARRIS
Defendants

Tanya Walker and Andrew Ostrom, for the Plaintiff

Darryl R. Buxton, for the Defendant, Pinaymootang First Nation, also known as Fairford First Nation, also known as Fairford Band

Douglas Christie, for the Defendant, Harris & Harris LLP, also known as Harris & Harris

WRITTEN SUBMISSIONS ON COSTS

COSTS ENDORSEMENT

dIAMOND J.:

[1] On June 1, 2015, I released my Reasons for Decision dismissing the plaintiff’s motion seeking (a) an order varying a consent judgment in a related action to lift the stay of this proceeding, and (b) leave to amend the Statement of Claim in this proceeding. At the conclusion of those Reasons, I requested that any parties seeking costs of the motion serve and file their written submissions, with responding written submissions to be served and filed thereafter.

[2] I have now received and reviewed the written costs submissions from the parties. The defendant Pinaymootang First Nation, also known as Fairford First Nation, also known as Fairford Band (“Fairford”) seeks costs of the motion on a partial indemnity basis in the amount of $45,829.57 (inclusive of H.S.T. and disbursements) payable by the plaintiff E. Anthony Ross (“Ross”) forthwith.

[3] The defendant Harris & Harris LLP also known as Harris & Harris (“Harris”) seeks costs of the motion on a partial indemnity basis in the amount of $43,167.37 (inclusive of H.S.T. and disbursements) payable by Ross forthwith.

[4] To begin, I note that despite the instructions set out in paragraph 95 of my Reasons that the parties’ respective costs submissions be limited to four pages in length (including a Costs Outline), Ross’ costs submissions (excluding his Costs Outline which he included for other reasons set out below) totaled nearly nine pages in length. No request for leave to file additional pages was received from counsel for Ross prior to the delivery and filing of Ross’ costs submissions. While I understand there may be a general desire to respond to each and every point made by both Fairford and Harris, any such response(s) could still have been summarized in four pages or less as per my request.

[5] There appears to be no dispute between the parties that (a) the costs of this motion are to include the costs of the plaintiff’s original motion brought before and dismissed by the Honourable Madam Justice Roberts (as she then was) on July 8, 2010 and (b) costs ought to be awarded on a partial indemnity basis.

[6] A review of the costs submissions in their entirety discloses that the parties differ on the following issues:

a) whether Fairford ought to be awarded its costs of this motion payable forthwith, as opposed to the costs award standing as a credit to be offset against the amount owing by Fairford to Ross under the consent judgment dated August 10, 2005 of the Honourable Mr. Justice Cullity (the “consent judgment”) in a related proceeding.

b) whether Harris ought to be awarded its costs of this motion payable forthwith, as opposed to (i) deferring Harris’ entitlement to costs of this motion to the arbitrator as per the disposition of Issues #3(b) and #4 in my Reasons, and (ii) ordering Harris’ costs to be in the cause of the arbitration.

c) the quantum of costs sought by both Fairford and Harris.

[7] Dealing first with Ross’ submissions that any costs ordered payable to Fairford be set off against the outstanding amount due to Ross from Fairford under the consent judgment, even though the amount due to Ross from Fairford is in the Harris Action (as that term is defined in my Reasons), Ross was added as a party to the Harris Action on consent of the parties and it was the clear intention of the parties in the two-way settlement and three-way settlement (again, as those terms are defined in my Reasons) that all claims and/or disputes between the parties were resolved in accordance with the consent judgment.

[8] In my view, the amount due to Ross from Fairford under the consent judgment, and any costs awarded to Fairford on this motion, are both liquidated debts and mutual cross-obligations. Fairford has been in default of its payment obligation under the consent judgment since January 1, 2006. If Fairford sought to enforce a costs award against Ross, the outstanding amount due under the consent judgment would be a full answer to those efforts.

[9] I therefore find that while Fairford is entitled to its costs of this motion payable by Ross, the principles of legal set-off require that such a costs award operate as a “credit” towards the amount due under the consent judgment.

[10] Turning to Ross’ request that Harris’ costs of this motion ought to be “rolled into” the pending arbitration, I do not agree with this submission. Until the commencement of argument, Ross maintained the position that the terms of the two-way settlement did not require him to mediate (and, if unsuccessful, arbitrate) any disputes arising from the settlement agreement. It was only after the completion of viva voce evidence that Ross conceded this previously disputed issue.

[11] Additionally, this previously disputed issue was only one of several issues raised by Ross which required Harris to respond to this motion. The only issues capable of being determined by mediation/arbitration relate to claims between Ross and Harris.

[12] As such, I find that Harris’ costs of this motion are to be made payable by Ross forthwith.

[13] This leaves the issue of quantum. It is well-established that the fixing of costs is not a simple mechanical exercise, and the Court must consider the reasonable expectations of both the successful and unsuccessful parties in determining a fair and just result.

[14] Overall, the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[15] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:

(0.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;

(0.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

(i) any other matter relevant to the question of costs.

[16] Ross’ Costs Outline sought costs on a partial indemnity basis in the amount of $40,953.20 had he been successful on the motion. Ross submits that while the amounts sought by all parties were in the same essential range, as the moving party Ross was required to do more of the “heavy lifting”, and both Fairford and Harris were able to rely upon each other’s work product thus reducing their respective costs.

[17] Ross’ motion was important to all parties. Had it been successful, the motion would have re-opened this proceeding and potentially permitted Ross to claim additional amounts from Fairford (and Harris) over and above the settlement amount.

[18] Further, Ross sought an Order that he keep the partial payments made by Fairford under the settlement in the event he was permitted to re-open this proceeding and pursue Fairford (and Harris).

[19] Ross’ motion was rather complex, although Ross’ concessions at the commencement of argument reduced the number of issues to be determined.

[20] I have reviewed the time and disbursements sought by Fairford and Harris. For the most part, I find those sums to be reasonable but am prepared to reduce the hours claimed for the preparation and attendance at the hearing which, due to scheduling issues, did not take the full three days originally scheduled by the parties.

[21] Accordingly, I make the following order:

a) Fairford is entitled to its costs of this motion on a partial indemnity basis fixed in the all-inclusive amount of $35,000.00 and payable by Ross, such sum to be offset against the amount currently due to Ross by Fairford under the consent judgment.

b) Harris is entitled to its costs of this motion on a partial indemnity basis fixed in the all-inclusive amount of $35,000.00 and payable by Ross forthwith.

Diamond J.

Released: July 6, 2015

COURT FILE NO.: 04-CV-281243CM2
DATE: 20150706

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

E. ANTHONY ROSS
Plaintiff

– and –

PINAYMOOTANG FIRST NATION, also known as FAIRFORD FIRST NATION, also known as FAIRFORD BAND and HARRIS & HARRIS LLP, also known as HARRIS & HARRIS
Defendants

COSTS ENDORSEMENT

Diamond J.

Released: July 6, 2015