Court File and Parties
COURT FILE NO.: CV-13-471987 DATE: 2016/06/29 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL MEEHAN, ANNE MEEHAN, MICHAEL MEEHAN, KATARINA MEEHAN, KATHLEEN MEEHAN and ANTHONY MEEHAN, BY HIS LITIGATION GUARDIAN ANNE MEEHAN Plaintiffs
G. Joseph Falconeri, counsel for the Plaintiffs
- and -
DONALD GOOD, DONALD R. GOOD PROFESSIONAL CORPORATION, O/A DONALD R. GOOD & ASSOCIATES, IAN SATUFFER, JOHN CARDILL, TIERNEY STAUFFER LLP Defendants
Joseph Obagi, counsel for the Defendant John Cardill Allan R. O’Brien, counsel for the Defendants Ian Stauffer and Tierney Stauffer (not appearing) Mark Charron, counsel for the Defendants Donald Good and Donald R. Good Professional Corporation (not appearing)
HEARD: via written submissions, at Ottawa, Ontario
MADAM JUSTICE B. R. WARKENTIN
Reasons on Costs
[1] In paragraphs 63 and 64 of my Reasons dated March 29, 2016 I found in favour of the Defendant, John Cardill and directed the parties to make written submissions on Costs within 30 days if they were unable to resolve the issue of Costs.
[2] Counsel for Mr. Cardill is seeking substantial indemnity costs inclusive of HST and disbursements of $40,707.57. He also set out his costs on a partial indemnity basis that he calculated to be $33,000.65 and his actual costs incurred that were $46,383.03. Counsel for the Plaintiffs agrees that Mr. Cardill should be entitled to some costs but argued that the award should be significantly lower and on a partial indemnity scale. He proposed the amount of $21,200.16.
[3] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[4] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[5] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 OR (3d) 291 (Ont CA) at para 37).
[6] It is the position of counsel for Mr. Cardill that although the proceeding was not complex, it was unreasonable for the plaintiffs to oppose the motion for summary judgment when the evidence supported Mr. Cardill’s position and the law with respect to the issue of the scope of a lawyer’s retainer was settled law.
[7] Counsel for the plaintiffs argued that the proceeding was at a very preliminary stage when the motion for summary judgment was brought and that the costs sought by counsel for Mr. Cardill are therefore excessive and not proportional to the status of the action when judgment was granted.
[8] Counsel for the plaintiffs also argued that opposing a motion for summary judgment should not be sufficient to impose substantial indemnity cost sanctions against them. He also noted that in opposing the motion, the plaintiffs’ argument, while not accepted by me, was on a different form of retainer than that argued by Counsel for Mr. Cardill and thus not settled law.
[9] Having considered the issues in this proceeding, I find that the quantum of costs should be on a partial indemnity scale. While there were a number of aspects of the Plaintiffs’ position that had no chance of success, their position regarding the nature of the retainer was not an unreasonable argument and was something that required judicial interpretation.
[10] I therefore award costs to the proposed defendant, John Cardill payable by the Plaintiffs in the amount proposed by the Plaintiffs of $25,200.16 inclusive of HST and disbursements.
Madam Justice B. R. Warkentin
Released: June 30, 2016