Court File and Parties

Court File No.: CV-11-0005113100OT Date: 2016-09-26 Superior Court of Justice - Ontario

Re: Anthea Koon, Applicant And: Lawyers Professional Indemnity Company, Respondent

Before: Justice Matheson

Counsel: Applicant, self-represented Jameel Madhany, for the Respondent

Heard: In writing.

Costs Endorsement

[1] This costs endorsement arises from the dismissal of this application to set aside the arbitral award of the Hon. Dennis Lane dated March 18, 2011. Reasons for decision were released on May 18, 2016, cited as 2016 ONSC 932.

Preliminary issues

[2] In her written submissions, the applicant indicates an intention to bring a motion under Rule 59.06(2) of the Rules of Civil Procedure, seeking an order to have the decision on this application set aside or varied on the ground of fraud or facts arising or discovered after the decision was made, among other relief.

[3] In this regard, the applicant focuses on a subject that was expressly addressed in my reasons for decision, as follows:

[42] The applicant submitted that LawPRO wrongly told Mr. Lane that it had paid Mr. Galligan. The evidence in this regard is unclear. Mr. Galligan said, when he withdrew, that he did not intend to charge. What happened thereafter does not form part of the record. LawPRO may have concluded that it was appropriate to pay him. Internal LawPRO counsel swore an affidavit in this proceeding and could have been cross-examined on this point. Ultimately, it was for the applicant to establish the requisite facts. On the record before me, I am not prepared to conclude that counsel made a false statement in this regard.

[4] The applicant submits that after the hearing of this application, she discovered that the Hon. Mr. Galligan was not paid by LawPRO. In support of this submission, she provides a series of emails commencing after the disposition of the application. The applicant made an inquiry of ADR Chambers and it provided the requested information. The first date on those emails is June 20, 2016 and the reply email providing the information now relied upon is dated June 22, 2016.

[5] The respondent disputes any allegation of fraud. The respondent further notes that its witness, who attested in some detail about what he said in his submissions to Mr. Lane, did not attest that he made the alleged submission regarding the payment of Mr. Galligan. The only evidence that such a submission was made was from the applicant. In addition, the subject of payment of Mr. Galligan did not form part of Mr. Lane’s reasons for decision on the adjournment.

[6] I am not, in these reasons for decision, deciding a Rule 59.06 motion. It appears that no such motion has even been filed and it has now been about three months since the applicant received the above information from ADR Chambers. In all the circumstances, I do not see it as appropriate to delay the disposition of costs any further.

[7] The applicant also refers to the possibility that oral argument would be preferable in connection with the determination of costs in this application. She submits that if I decide that her former lawyer might have to respond to her submissions or be notified, an oral hearing may be required. That scenario has not arisen. The applicant also submits that it may be preferable to have oral submissions because the issues are complex and the applicant is “unable to submit sufficient evidence” regarding the facts. However, the applicant has provided a seventeen page written submission and a brief including an affidavit and other enclosures. Based upon those materials, an oral hearing is not required.

Costs claims

[8] The respondent, as the successful party, seeks its costs. Despite a favourable offer to settle, it does not seek substantial indemnity costs. Its partial indemnity costs claim is about $36,000.

[9] The applicant also seeks costs, providing a bill of costs that indicates partial indemnity costs of about $54,000.

[10] The general principles that are applicable to the order of party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[11] Certain general principles have now been expressly articulated in subparagraphs (0.a) and (0.b) of Rule 57.01, specifically the principle of indemnity and the affirmative obligation to consider the amount of costs than an unsuccessful party could reasonably expect to pay in relation to the steps in the proceeding for which costs are being fixed.

[12] In support of the request that I award costs against the successful party, the applicant relies on alleged misconduct by the respondent as well as some difficulties with her former counsel. Having considered those submissions, I am not persuaded that the circumstances of this case justify a departure from the ordinary rule that a successful party receive costs.

[13] With respect to the respondent’s costs, the applicant submits that the dockets of the respondent show an excessive amount of time spent addressing the pre-arbitration hearing events, as opposed to the time spent on the arbitration hearing itself. The applicant submits that the respondent’s hours should be compared to those of Mr. Morton, including his preparation for and attendance at the hearing. As a result, the applicant submits that the proper amount of fees should be $3,713.84, although she does not agree to a costs order in that amount.

[14] I have considered all of the factors set out in Rule 57.01 in the exercise of my discretion, including all relevant matters raised in the submissions. Without in any way limiting that consideration, I have considered the submissions about the importance of the issues, the complexity of the matter, the conduct of the matter, the conduct of both parties, the reasonable expectations of the unsuccessful party and the offers to settle. I conclude that the respondent shall have costs, fixed at $10,000 inclusive of disbursements and any applicable taxes.

Justice W. Matheson Date: September 26, 2016