Hanna v. Ontario, 2016 ONSC 3035
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DOUGLAS JOHN HANNA, SHAWN HANNA, DEAN HANNA, DAVID GRANT, TRACY GRANT, JUDY HANNA, JANET (NÉE HANNA) BOULET, LEWIS HANNA, GLADYS HANNA, DARREN HANNA AND DEBORAH HANNA, Applicants
AND
DIRECTOR, LAND TITLES, AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Elise Hallewick, counsel for the Applicants
Eunice Machado, Tom Schreiter, counsels for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
1On January 26, 2016, I dismissed the Applicants’ appeal of the decision of the Director of Land Titles. In accordance with the applicable statutory provisions, the appeal proceeded as a trial de novo. The parties agreed to proceed by way of written record. In their original application, the Applicants had sought compensation from the Public Land Compensation Fund on numerous grounds. On appeal, they limited their arguments to their claim of fraud. The Respondent was successful in establishing that there was no clear and cogent evidence of fraud.
2Following the hearing, I directed that the parties provide me with their written submissions as to costs. I received the Respondent’s submissions on February 18, 2016, but no submissions were received by the Applicants.
3The applicable factors are set out in Rule 57.01(1).
The principal of indemnity
4The Respondent claims compensation for the time expended on this matter and seeks costs inclusive of disbursements in the amount of $26,441.90.
The amount claimed and the amount recovered in the proceeding
5The Applicants originally sought $2.2 billion although they ultimately reduced that amount to $420,000,000. Because of the high monetary value sought, the Respondent maintains that the work done on the file was substantial and that the costs requested are proportionate to the importance of the matter.
Complexity of the proceeding
6The Respondent submits that the appeal was made inordinately complicated up to the moment the hearing began. The issues required the evaluation of voluminous materials spanning several decades. Research was required to evaluate over 70 years of legislation and relevant jurisprudence of the two different regimes of property registration in the province of Ontario. The Respondent concedes that the costs would have been substantially higher had the parties not agreed to proceed by way of written record. The Respondent further concedes that the agreement to argue one principal issue on the appeal significantly reduced the time required for the hearing. The costs claimed for attendance at the hearing reflect this.
Importance of the issues
7The Respondent admits that the maintenance of the distinction between the two land registration systems is extremely important to the Crown. Since the Applicants sought to conflate the two systems, this would have opened the door for compensation under the Public Land Compensation Fund. Had the Applicants succeeded, the province would have become the underwriter for any fraudulent conveyance affected under the Registry Act, RSO 19990, c R.20 that would have been converted to the Land Titles Act, RSO 1990, c L.5. If the measure of damages were to be the present value of the property as suggested by the Applicants, the liability to the Applicants alone would have been in the millions of dollars. The liability of the province with respect to other potential Applicants would have been in an indeterminate amount.
A party’s denial or refusal to admit anything that should have been admitted
8The Respondent notes that none of the issues raised by the Applicants were resolved prior to the hearing. The Respondent submits that there were grave errors in the affidavit materials filed by the Applicants which made claims that were entirely unsupported by the attached documents. This was demonstrated on several occasions at the hearing itself.
The experience of the party’s lawyers
9Eunice Machado was called to the bar in Ontario in 2003 and Tom Schreiter was called to the bar of Ontario in 2009.
The amount of costs of an unsuccessful party could reasonably be expected to pay
10The Respondent submits that an unsuccessful party would reasonably be expected to pay a costs award of more than a nominal modest amount when the amount claimed is as excessive as that claimed in the present proceedings. The Applicants sought their own costs of the appeal/trial de novo on a full indemnity basis.
The hours spent, the rate sought for costs and the rate actually charged by the party’s lawyer
11M. Machado spent 36.3 hours claimed at a rate of $250 per hour in the preparation for the appeal including the drafting of all materials, correspondence and preparation for the hearing. Mr. Schreiter claimed a total of 84.90 hours claimed at a rate of $175 per hour.
Any other matter relevant to the question of costs
12The Respondent relies on the decision of this Court in Empire Communities Limited v. Ontario, 2015 ONSC 5183, [2015] OJ No 4350 where Justice Myers concluded that costs awarded to a Crown servant or agent should not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown. In this case, the Respondent has relied on partial indemnity rate based upon the guidelines published by the cost subcommittee of the Civil Rules Committee.
Analysis and Conclusion
13The Applicants are the grandchildren of Louis Hanna and Eliza Gladys Hanna. They sought compensation under the Land Titles Act, for lands allegedly conveyed fraudulently between 1949 and1950. They demanded $2.2 billion in compensation even though the lands in issue were registered under the Registry Act and not the Land Titles Act and the two generations before them did nothing about the alleged fraud.
14The initial application was heard by way of a written hearing. The Director of Titles considered to the extensive written record and delivered substantive reasons for dismissing the application on its merits.
15The Applicants had alleged that the lands were fraudulently taken. The “evidence” they asserted was based on the estate documents that sometimes added the letter “h” at the end of Hanna and sometimes added “Eliza” to the name Gladys Hanna. I agreed with the Respondents that this was not sufficient to establish something as serious as fraud.
16In this case, the Applicants sued the government. They raised issues that required extensive research and review of historical documents. Given the quantum of their claim and the importance of the issues, the Applicants ought to have expected the government to respond fully to their claims. I see no reason to discount the Respondent’s claim for costs. I adopt the approach of Justice Myers in the Empire Communications decision where he said at paragraph 6: “Instead, where the Crown is a party, costs should be assessed on the regular basis bearing in mind the fundamental goal to achieve a reasonable costs outcome in the circumstances of each case.”
17The costs claimed are reasonable having regard to all of the factors set out in Rule 57.01. I note that there was an appropriate allocation of work between senior and junior counsel and I take no issue with the disbursements claimed. Therefore, there will be an order that the Applicants should be liable jointly and severally to pay the costs of the Respondent in the amount of $26,441.90.
Mr. Justice Robert N. Beaudoin
Date: May 10, 2016
CITATION: Hanna v. Ontario, 2016 ONSC 3035
COURT FILE NO.: 13-58597
DATE: 20160510
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DOUGLAS JOHN HANNA, SHAWN HANNA, DEAN HANNA, DAVID GRANT, TRACY GRANT, JUDY HANNA, JANET (NÉE HANNA) BOULET, LEWIS HANNA, GLADYS HANNA, DARREN HANNA and DEBORAH HANNA, Applicants
AND
DIRECTOR, LAND TITLES, AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Elise Hallewick, counsel for the Applicants
Eunice Machado/Tom Schreiter, counsels for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
Beaudoin J.
Released: May 10, 2016