Lindhorst v Centennial College, 2016 ONSC 4079

Court File and Parties

Court File No.: CV-16-548788 Date: 2016-06-23 Superior Court of Justice – Ontario

Re: Alvin Lindhorst, Applicant - and - Centennial College, Kevin Rajpaulsingh, Harold Tan, The Attorney General for Ontario and Toronto Police Services Board, Respondents

Before: N. Spies J.

Counsel: Robert J. Maki, for the Applicant Dianne Jozefacki, for the Respondents Centennial College, Kevin Rajpaulsingh and Harold Tan Fred Fischer, for the Respondent Toronto Police Services Board

Heard: In Writing

Costs Endorsement

Background and Entitlement to Costs

1By an Endorsement dated April 19, 2016, I dismissed Mr. Lindhorst’s application for leave to commence an action against the Respondents. The proposed action related to his expulsion from Centennial College and his arrest for a threat made to a College employee; see Lindhorst v. Centennial College, 2016 ONSC 2678. I ordered that costs be payable by the Applicant to the Respondents and set out a time table for Cost Outlines and any response to be provided. The Respondents complied with the timetable. Mr. Lindhorst had until May 15, 2016 to respond but did not provide a response.

2Counsel for the Respondents have both submitted Costs Outlines seeking costs on a partial indemnity basis. They were wholly successful on the application and so there is no question that the costs should be assessed on that scale.

3Every party to a proceeding is entitled to retain their own counsel, but if successful, each party will not receive costs when they have the same interest and could have been represented by the same counsel; see Baribeau et al. v. Canada Permanent Trust Co. et al. (1987), 59 O.R. (2d) 21 (H.C.J.). In my view it is appropriate that there should be two sets of costs payable by the Applicant to the Respondents. Ms. Jozefacki’s clients had separate interests from Mr. Fischer’s in that the proposed action made different claims against each of them. It would not have been reasonable to expect one firm to act for all of the Respondents.

4Counsel for the College and the individual Respondents seeks a total amount of $8,956.10 of which $7,528.50 plus HST is for fees. Counsel for the Toronto Police Services Board seeks a total amount of $5,413.70 of which $5,363.70 plus HST is for fees. There is, approximately, a $3,000 differential between the two Costs Outlines, which is significant.

5The Applicant sought leave to commence an action against the Respondents for $100,000 for damages for “negligence, negligent police investigation, assault and battery, loss of employment earnings and punitive, aggravated and exemplary damages”. He did not state specifically against whom these various heads of damages were to be claimed and there were other issues I noted in my Endorsement which demonstrated how defective the proposed pleading was. As the Respondents have submitted in their Costs Outlines, trying to decipher the proposed claim added to the costs as did the nature of the application given the Applicant’s considerable history as a litigant and as a vexatious litigant. Understandably the Respondents wanted to ensure a thorough response to the application to resist an order being made permitting the Applicant to proceed.

6In assessing costs, rule 57.01(1) of the Rules of Civil Procedure sets out the factors a court may consider. In addition, the principles that I must apply have been settled by our Court of Appeal and the Divisional Court. The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectations of the losing party. Although the Costs Grid has been abolished since these decisions from the Court of Appeal, I see my function in this regard as unchanged. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant; see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.) at p. 302, Coldmatic Refrigeration of Canada Ltd. v. Leveltek, [2005] 75 O.R. (3d) 638 (Ont. C.A.) at para. 8, Andersen v. St. Jude Medical, Inc. (2006), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), aff'g (2004) 28 C.P.C. (6th) 199 (Ont. S.C.) at para. 22.

Costs of the College and Individual Respondents

7Dealing first with the costs of the College and individual Respondents, I have two concerns with respect to the fees claimed. First of all, I note that Ms. Jozefacki, a 2013 call, and two 2014 call lawyers worked on the file as well as a law clerk and student-at-law. Having three lawyers work on the matter, who are all of relatively the same call, would necessarily have resulted in duplication of time and no cost savings given their hourly rates are comparable. Ms. Jozefacki submits that this was done because of the “short turnaround to prepare the responding application” and that counsel who regularly represent the College; both Ms. Jozefacki and Ms. Luksha, along with a more experienced junior associate specializing in litigation, Mr. Smith, did the work. There is no evidence that additional time to respond to the application was sought from Mr. Maki and refused. I am not satisfied that three lawyers as well as a law clerk and student-at-law were necessary to respond to this application. This duplication is reflected in the total hours spent of 47.5 hours. Mr. Fischer’s Costs Outline claims 33.2 hours. I recognize that the College Respondents also filed an affidavit which was not done by the Toronto Police Services Board, but that should not have taken almost 15 hours.

8My second concern is the partial indemnity hourly rates claimed given the year of call. Ms. Jozefacki’s partial indemnity rate claimed is $165 per hour and is lower than the other two lawyers who are not as senior. I note Mr. Fischer, who is a 2005 call, has claimed a partial indemnity rate of $141, although I recognize that is on the low end.

9Finally, the amount claimed for photocopying of $307.25 is excessive. Mr. Fischer has claimed $50.

10For these reasons I find that there should be some reduction for duplication of time, the hourly rates charged and the disbursements. Taking these concerns into account, and considering the overarching goal of determining what is fair and reasonable in the circumstances, I award costs payable by the Applicant to the College and the individual Respondents in the amount of $7,000 inclusive of fees, disbursements and HST.

Costs of the Toronto Police Services Board

11Turning to the Costs Outline of the Respondent, the Toronto Police Services Board, Mr. Fischer claims, as I have said, 33.2 hours; the bulk of the time is his. He was assisted by two students-at-law. I have no difficulty with his partial indemnity rate or the hours claimed. The fees claimed are $5,363.70 which I presume includes HST. Fifty dollars is claimed in disbursements for a total of $5,413.70. In my view the amount claimed is reasonable and I order costs payable by the Applicant to the Toronto Police Services Board in the amount of $5,413.70 for fees, disbursements and HST.

Dispensing with Approval of Order

12Counsel for the Respondents have asked that the Applicant’s approval of the form and content of any costs order be waived because the Applicant is a vexatious litigant and they have no confidence that he will approve the form and content of the costs orders. I agree. I so order provided that the draft order is provided to me for signature. That can be done by email.