ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 4797/14
Date: 2015/09/29
B E T W E E N:
Tim Whitfield
D. Hurren, for the Applicant
Applicant
- and -
Robert Steckley, John Hill, Paul Collard, Donald Lubberts
J. Seigel, for the Respondents Steckley and Hill
E. Gillespie, for the Respondents Collard and Lubberts
Respondents
The Honourable Justice P. R. Sweeny
RULING ON COSTS
[1] On June 19, 2015, I dismissed this application under the Municipal Conflict of Interest Act (“the Act”) on the basis that it was out of time, being commenced more than six weeks after the applicant knew, or ought to have known, that the respondents may have contravened the Act. The parties were not able to agree on costs, and costs submissions were provided by the applicant and the respondents with replies.
[2] The respondents Steckley and Hill seek costs on a substantial indemnity basis of $137,604.00. They assert that they were successful and costs should follow the event. They further argue that there were aggravating factors which would support an award of costs on a substantial indemnity basis. The respondents Collard and Lubberts provided no separate submissions but submitted a Bill of Costs seeking $52,117.60 on a partial indemnity basis.
[3] The applicant says that this is public interest litigation and that there should be no costs.
[4] The award of costs in a civil proceeding is governed by s.131 of the Courts of Justice Act and Rule 57.07 of the Rules of Civil Procedure. It is an exercise of discretion.
[5] There is no blanket public interest litigation exception for cases involving the Act, and costs have been awarded against unsuccessful applicants on many occasions (Magder v. Ford, [2013] O.J. No. 1489).
[6] In Magder, the Divisional Court awarded no costs on the basis that there was divided success. In this case, there was no divided success as the application was dismissed because it was out of time. In Berry v. Anderson (Unreported, September 30, 2002), Henderson J. made no award as to costs. However, he did specifically comment on the conduct of the respondent. In this case, no such comment has been made.
[7] The jurisprudence supports the awarding of costs against the unsuccessful party under the Act and that these applications are not public interest litigation. In this case, the applicant was aware of the risk, and was prepared to proceed with the application with an understanding of an exposure for costs if unsuccessful. I am satisfied it is appropriate for the applicant to pay costs to the respondents.
[8] Should costs be awarded on an enhanced scale? The issue of the time limit was raised some five months after the application was issued. There was a significant delay in having this matter heard. I note that no party blames the other. These applications should be heard in a timely manner. If the matter had been dealt with more expeditiously, it may have been merely an historical footnote in an election campaign and the respondents could not assert that “it is not an unreasonable inference to presume that this litigation may have played a role” in the defeats of three respondents in the election. In Hazineh v. McCallion, [2013] O.J. No. 4812, the successful respondent pointed to the political forces at play and the court still saw fit to award only a portion of the costs requested on a partial indemnity basis. In my view, there is no reason to award costs on an enhanced scale.
[9] The next issue is the quantum of costs. I am not persuaded that there was a need for separate counsel to represent the respondents and I will not consider an award of more than one set of costs. In considering the quantum of costs, the court should seek to balance the indemnity principle with the fundamental objectives of access to justice (Boucher. v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291). In Hazineh, the court awarded $170,000 all-inclusive in costs on a request of almost $400,000 on a partial indemnity basis. In Alcock v. McDougald, [2005] O.J. No. 4118, the successful party sought in excess of $210,000 on a partial indemnity basis and Wright J. awarded $35,969.20. These cases clearly support the principle that reasonableness is an important factor for the court to consider.
[10] I have reviewed the Bills of Costs submitted. The time spent is extraordinary: in excess of 300 hours by one firm and 160 by the other. There were two days of cross-examinations and one day to argue the issue. Counsel were retained from out of the jurisdiction and claimed travel time and expenses associated with accommodation, which, in my view, are not properly recoverable. I have considered the time spent, the hourly rates charged, and the number of lawyers involved. After considering all those factors, and taking into account what a litigant might expect to pay as costs on a partial indemnity basis under the Act, I fix the costs at $30,000 all-inclusive.
[11] Therefore, the applicant is to pay to the respondents costs fixed in the amount of $30,000 all-inclusive within 30 days.
Sweeny J.
Released: September 29, 2015
COURT FILE NO.: 4797/14
DATE: 2015/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tim Whitfield
Applicant
- and –
Robert Steckley, John Hill, Paul Collard, Donald Lubberts
Respondents
RULING ON COSTS
Sweeny J.
Released: September 29, 2015