ST. CATHARINES COURT FILE NO.: 54641/13
DATE: 2015/11/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hyperbaric Oxygen Institute of Canada Inc.
Plaintiff/Respondent
– and –
The College of Physicians and Surgeons of Ontario, Dr. Rocco Gerace, Sandra Keough and Dr. Wayne A. Evans
Defendants/Moving Parties
Richard Simmons,
for the Plaintiff/Respondent
Michelle Gibbs,
for the Defendants/Moving Parties
THE HONOURABLE JUSTICE J.R. HENDERSON
COSTS ENDORSEMENT
[1] The defendants (collectively called “the College”) brought a successful motion under Rule 20 and Rule 21 that resulted in the summary dismissal of this action. Accordingly, the College is entitled to reimbursement from the plaintiff (hereinafter called “HOIC”) for its costs of defending the action and its costs of the motion. Counsel for the College acknowledges that the costs awarded in favour of the College should be on a partial indemnity scale.
[2] I accept that the action and the motion were moderately complex as it was necessary to carefully detail and scrutinize the applicable legislation. In particular, arguments were made pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 and the regulation known as the Health Professions Procedural Code regarding the power of the College to investigate and regulate its members.
[3] Moreover, I accept that the issues raised in this action were important issues as the manner in which the College conducted its regulatory activities was called into question. More specifically, this action caused the court to consider the circumstances in which third parties who were affected by the College’s regulatory activities could sue the College for their alleged damages.
[4] Also, in my opinion, the procedure undertaken by the College in bringing a motion under Rule 20 and Rule 21 was a reasonable and expeditious way in which to deal with these issues.
[5] The Bill of Costs presented by the College shows approximately 86 hours of time spent by two lawyers, one senior lawyer and one junior lawyer. Those 86 hours were mostly spent reviewing and preparing documentation, preparing for and conducting a cross-examination on the affidavit submitted on behalf of HOIC, and attending before this court on one occasion for oral argument of approximately three hours.
[6] In my view, the hourly rates shown as the “actual rate” for each of the lawyers were reasonable. That is, the senior lawyer’s hourly rates of $310.00 and $325.00 per hour and the junior lawyer’s hourly rate of $215.00 per hour were reasonable actual hourly rates, before those rates were adjusted downward to a partial indemnity scale.
[7] With respect to the docketed time, in general I find that the amount of time spent by the lawyers for the College on the action and the motion was not extraordinary. However, I accept that there should be some reduction in the Bill of Costs because of the inherent duplication that occurs whenever more than one lawyer works on a file. Further, there should be a reduction in the hourly rate for the time spent travelling to and from a court in another city.
[8] For all of these reasons, I will allow partial indemnity costs of $16,000.00, plus HST of $2,080.00, plus disbursements of $1,786.52, for a grand total of $19,866.52.
[9] Accordingly, there will be an order that HOIC pay to the College its costs fixed at $19,866.52, payable within 30 days.
Henderson, J.
Released: November 12, 2015
ST. CATHARINES COURT FILE NO.: 54641/13
DATE: 2015/11/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hyperbaric Oxygen Institute of Canada Inc.
Plaintiff/Respondent
and
The College of Physicians and Surgeons of Ontario, Dr. Rocco Gerace, Sandra Keough and Dr. Wayne A. Evans
Defendants/Moving Parties
costs endorsement
Henderson, J.
Released: November 12, 2015