CITATION: Harlson et al. v. Lewis et al, 2016 ONSC 2326
COURT FILE NO.: CV-14-145 CV-14-146
DATE: 2016-04-06
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: CV-14-145 Ted Harlson, Christine McHale, Gary McHale, Hetty VanHalteren and Jacob VanHalteren Plaintiffs
- and-
OPP Commissioner Chris Lewis, Sergeant Brad Moore, Inspector Phil Carter, Chief Superintendent John Cain and Her Majesty the Queen in right of Ontario, Defendants
AND BETWEEN: CV-14-146 Stuart Laughton, Ted Harlson, Gary McHale, Randy Fleming, Jacob VanHalteren and Doug Fleming Plaintiffs
-and-
OPP Commissioner Chris Lewis, Sergeant Brad Moore, Inspector Phil Carter, and Her Majesty the Queen in right of Ontario Defendants
BEFORE: The Honourable Mr. Justice R.J. Nightingale
COUNSEL: Gary McHale, Ted Harlson, Christine McHale, Jacob VanHalteren, Stuart Laughton, Randy Fleming, Doug Fleming, self-represented plaintiffs appearing; Hetty VanHalteren, self-represented plaintiff not appearing
Domenico Polla, Counsel for the Defendants
HEARD: February 25, 2016
COSTS ENDORSEMENT
[1] I have now received the written submissions on costs from the parties.
[2] The defendant was entirely successful in opposing the plaintiffs’ motion requesting a further adjournment of the defendant’s motion and a further cross examination and also on its motion to set aside the noting in default against it by the plaintiffs in both actions.
[3] The costs of the attendances of the parties on August 25, 2015 before Harper J and a further attendance on December 15, 2015 before me were reserved to the motions judge.
[4] The general rule is that the successful party is entitled to its costs of a proceeding or action.
[5] An award of costs should not be based on simply a multiple of the number of hours spent by successful party’s counsel times an hourly rate. Rather, the overriding principle in awarding costs is reasonableness. The Court in awarding costs should reflect what the Court views as a fair and reasonable amount to be paid by the unsuccessful party in the proceeding rather than any actual measure of the actual costs of the successful litigant. Davies v. Clarington (Municipality) (2009) 2009 ONCA 722, 100 O.R. (3d) 66; Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (O.C.A.).
[6] Although the plaintiffs are all self represented, it was admitted by them that they have had the benefit of legal advice regarding this motion since at least December 15, 2015 and likely earlier including having counsel attend with them on their cross examinations on their affidavits. The plaintiffs all had the benefit of the defendant’s legal brief supporting its position since August 2015 including all of the relevant factors that the Court must consider for these types of motions. The plaintiffs filed no case law authority in support of their position on the motions other than an old case on the issue of maintenance which was irrelevant.
[7] Defendant’s Counsel suggests they spent approximately 130 hours since the inception of its motion back in April 2015 including preparation of the motion materials, affidavits, facta and attendances in Court on August 25 and December 15, 2015, attendances on the cross examinations of the parties as well as the hearing of these motions on February 25, 2016.
[8] It is appropriate that they be entitled to their costs thrown away of their attendance from those two earlier court dates given their success on this motion and the failure by the plaintiffs to deliver their responding documents by those dates on which they were granted those adjournments.
[9] All of the plaintiffs were cross-examined on their affidavits in one day and Mr. Bala for the defendant was cross-examined on another day.
[10] The plaintiff submitted that they are entitled to the costs of their own cross examinations under Rule 39.02(4)(b) suggesting the defendant had no reasonable grounds to compel the plaintiffs to incur the expenses of that examination as none of the plaintiffs denied any of Mr. Bala’s sworn facts regarding the events leading up the default and Defendant’s Counsel did not refer to the transcripts.
[11] I disagree.
[12] The plaintiffs omitted to state that in their submissions on the motion, their position was that Mr. Bala was not being truthful in his evidence, was misleading the Court and lied. They did not allege that in their affidavits or in their materials nor was there any reference to that in their cross examinations. In fact, in their costs submissions, the plaintiffs for some reason appear to continue to make the same type of allegation despite my decision that there was no basis for that allegation.
[13] Moreover, the defendant’s Counsel did refer to a plaintiff’s transcript being the cross-examination of Mr. Harlson that Mr. McHale was effectively the conduit of all the information regarding the communications with the defendants and the plaintiffs and that he was the one who took care of the requisitions which by inference included the requisitions to note the defendants in default eventually on behalf of all of plaintiffs. The submission by the plaintiffs that the defendant’s Counsel did not make any reference to the transcripts during his oral presentation is not correct.
[14] The plaintiffs’ transcripts also reveal that none of the plaintiffs requested that the defendants deliver a statement of defence after the initial time limit for doing so under the Rules had expired which I referred to in my decision as a relevant factor in setting aside the noting in default.
[15] The plaintiffs claimed they in total spent 156 hours for their cross examinations including preparation for that one day ranging from a low of 13.75 hours for the plaintiff Hetty VanHalteren to a high of 37 hours for Mr. McHale including their time spent with a lawyer who is not Counsel of record in these actions.
[16] However, they simply attended on the cross examinations to give their evidence which any litigant would have to in any event. Their attendance there did not involve their time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.
[17] The plaintiffs suggested that several of the plaintiffs had their employers schedule two days off from work but no documents confirming that were provided including which plaintiffs were involved or that any loss of income occurred. There is no evidence that any of the plaintiffs incurred an opportunity cost by forgoing remunerative activity to attend on the cross examinations.
[18] The appellate decisions of Fong v Chan (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (O.C.A.) and Mustang Investigations v. Ironside et al 2010 ONSC 3444 (Div. Ct.), both of which are binding on me, hold that the plaintiffs must demonstrate not only that they devoted time and effort to do the work ordinarily done by a lawyer but also that they incurred an opportunity cost as a result by forgoing remunerative activity before being entitled to costs. They have not done so.
[19] They also suggested a lawyer represented them during the cross-examinations for that one day totaling 19.5 hours which seems high. Again, no documents were provided confirming whether an account was rendered or proof of payment of an account.
[20] The plaintiffs’ cross examinations total 196 pages compared to Mr. Bala’s cross examination of 149 pages. Accordingly, the time involved was not significantly different. In the circumstances, this is an appropriate case where the claims for costs on the respective cross- examinations should be offset against each other. No order of costs is made to either party for them.
[21] Using hourly rates of $174 for counsel called in 2008 and $120 for counsel called in 2013, the defendant suggests partial indemnity fees would amount to approximately $17,244 given the total time involved. The Crown is not seeking that amount but rather seeks the sum of $12,000 inclusive of disbursements and taxes payable within 30 days on a joint and several basis.
[22] The plaintiff submitted they made a written offer settle on April 29, 2015 which “attempted to deal with several issues in order to speed up the whole process and not just this one motion”.
[23] However, on reviewing that original email, it was clear that that was not an offer to settle as Mr. McHale had not spoken with the other plaintiffs about it nor with the lawyer acting for him in the other action. Rather, it was only his suggesting “an option”. In addition, for some reason the plaintiffs’ cost submissions only referred to four of the 10 terms of that suggested “option”. Some of the other terms required the government to waive its defence of the plaintiffs’ claims being statute barred. That option was not a reasonable offer to deal with the merits of the defendant’s motion to set aside the noting of default. The other plaintiffs’ offers required payment of the costs for the plaintiffs of over $7000 and $15,000 respectively and required the defendant to accept service of documents by email. Those offers were not reasonable and the Crown was justified in refusing all of them.
[24] Considering the factors under rule 57.07 including that the claims are for damages of $40 million combined for the two actions, the importance of the issues in the actions, the delays occasioned by the plaintiffs in serving their responding materials, the success of the defendant on the motions given the applicable case law without any contrary case law providing by the plaintiffs, the amount of fair and reasonable costs that should be allowed to the defendant which is an amount that the plaintiffs would reasonably have expected to pay is $7000. An approximate breakdown only of that amount is as follows:
a) preparation of defendant’s motion record including preparation of affidavit of Mr. Bala, factum, legal research and compiling book of authorities, all correspondence with plaintiffs initially to arrange for cross examinations and hearing of motion, receipt and review of plaintiffs’ motion record materials $2000
b) costs thrown away for attendance in Court on August 25, 2015 $1000
c) costs thrown away for attendance in Court on December 15, 2015 $1000
d) preparation for plaintiffs’ motion requesting adjournment of defendant’s motion and further cross examinations including attendance in Court on February 25 to argue motion $1000
e) preparation for defendant’s motion and attendance in court on February 25 to argue motion $1500
f) defendant’s submissions on costs $500
Total $7000
[25] The plaintiffs on a joint and several basis in both actions shall pay to the defendant Her Majesty the Queen a combined sum for costs of $7000 inclusive of fees and disbursements. The costs are payable within 30 days of the date of this order.
The Honourable Justice R.J. Nightingale
Date: April 6, 2016
Addendum
This decision and my reasons were completed before I received the reply costs submissions of the defendant on today’s date and remain unchanged in their original form.