CITATION: Guergis v. Hamilton, 2016 ONSC 621
OTTAWA COURT FILE NO.: 11-53210
DATE: 2016/01/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Helena Guergis
Plaintiff
(Responding Party)
– and –
Arthur Hamilton, Cassels Brock & Blackwell LLP, The Honourable Shelly Glover and Derrick Snowdy
Defendants
(Moving Parties/Appellants)
Stephen Victor, David Cutler and David Sheriff-Scott, for the Plaintiff
Paul Levay and Benjamin Kates, for the Defendants
HEARD: In Writing (Ottawa)
REASONS ON COSTS
MADAM JUSTICE B. R. WARKENTIN
[1] In paragraph 36 of my Reasons on Motion for Leave to Appeal, dated December 7, 2015, I directed the parties to make written submissions on Costs within 30 days of those Reasons if they were unable to resolve the issue of Costs.
[2] The Motion for Leave to Appeal, brought by the Defendants, Arthur Hamilton and Cassels Brock & Blackwell LLP was dismissed. The Applicant is entitled to costs.
[3] Counsel for the Plaintiff (Responding Party) is seeking partial indemnity costs in the amount of $11,853.89. Counsel for the Defendants submits that the Plaintiff’s costs are excessive and that an award of costs should not exceed $5,000.00.
[4] 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.
[5] 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.
[6] 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), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[7] It is the position of counsel for the Plaintiff that the proceeding was complex and of significant importance to the Plaintiff and therefore warranted the time and effort expended to prepare for this motion.
[8] Counsel for the Defendants submitted when considering the reasonable expectations on costs awards, part of the analysis includes reviewing other costs awards in like circumstances, not merely a formulaic calculation of partial indemnity costs.
[9] Counsel for the Defendants summarized the costs awards on other written Motions for Leave to Appeal since January 2015 when this process began. The average award of costs was less than $5,000.00 and only one award exceeded the $11,853.89 amount that the Plaintiff is seeking here.
[10] In reaching my decision on costs, I accept the submissions from both sides regarding the factors to be considered. I agree with the Plaintiff that this Motion for Leave was more complex than the typical Leave Application.
[11] Most Motions for Leave to Appeal do not engage the important constitutional issues that would have been the subject of the Appeal had Leave been granted. While the purpose on a Leave Application is not to reach a determination of the issues for the Appeal, it is nonetheless necessary for counsel to set them out in order for the judge considering the Leave Application to determine whether or not Leave should be granted. Without that information, the Motion Judge would not be able to adequately ascertain if the test for granting Leave under the Rule has been met.
[12] Having considered the complexity of the matter, that it was a leave to appeal in writing and the reasonable expectations on costs based upon other costs awards in like circumstances, I have determined that the appropriate quantum of costs on this matter is $8,000.00.
[13] I therefore award costs to the Plaintiff in the amount of $8,000.00 inclusive of HST and disbursements.
Madam Justice B. R. Warkentin
Released: January 25, 2016
CITATION: Guergis v. Hamilton, 2016 ONSC 621
OTTAWA COURT FILE NO.: 11-53210
DATE: 2016/01/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Helena Guergis
Plaintiff
(Responding Party)
– and –
Arthur Hamilton, Cassels Brock & Blackwell LLP, The Honourable Shelly Glover and Derrick Snowdy
Defendants
(Moving Parties/Appellants)
REASONS ON COSTS
Warkentin J.
Released: January 25, 2016