Robson v. Law Society of Upper Canada, 2016 ONSC 6647
CITATION: Robson v. Law Society of Upper Canada, 2016 ONSC 6647
COURT FILE NO.: CV-15-535850
DATE: 2016-10-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul Alexander Robson, Plaintiff (Responding Party)
AND:
The Law Society of Upper Canada, Zeynep Onen, Mark Pujolas, Lisa Freeman and Jan Parnega-Welch, Defendants (Moving Parties)
BEFORE: Mr. Justice Stephen Firestone
COUNSEL: Richard Watson, for the Plaintiff (Responding Party)
Paul Robson in Person
Sean Dewart and Ian McKellar, for the Defendants (Moving Parties)
HEARD: In Writing
COSTS ENDORSEMENT
[1] The defendants brought this motion for an order striking out, without leave to amend, the plaintiff’s amended statement of claim (“claim”) and dismissing the action against them.
[2] By way of written reasons dated September 14, 2016, I ordered that the portion of the plaintiff’s claim grounded in negligent investigation be struck without leave to amend. I further ordered that those paragraphs grounded in malicious prosecution and misfeasance in (abuse of) public office be struck with leave to amend. I refused to dismiss the plaintiffs claim in its entirety based on the doctrine of abuse of process, res judicata, or estoppel.
[3] In my reasons I indicated that if the parties were unable to agree on costs, cost submissions could be submitted in writing and I set a timetable for their delivery. Those submissions have now been received and considered by me.
[4] Costs are with the discretion of the court: Courts of Justice Act, s.131 (1). The Court has a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors to be considered by the court when determining the issue of costs.
[5] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 CanLII 14579 (Ont. C.A.).
[6] In Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, the court set forth the general principles to be applied in fixing costs, at paras. 10-12:
Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5 described the “normative approach” to an application for costs:
Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
Fixing of costs is not merely a mechanical exercise in reviewing the receiving party’s Cost Outline. In Andersen v. St. Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court set out several principles to be considered in making an award of costs:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291], Moon [Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440], and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. 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: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.
The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 Epstein J.A. stated at paras. 51-52:
As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”
[7] I have considered the written submissions of the parties as well as the relevant legal principles as they apply to the facts of this case.
[8] I agree with the defendants’ submission that they were largely successful on this motion. While the defendants were unsuccessful in having the action dismissed in its entirety they were successful on their motion to strike. The allegations grounded in negligent investigation were struck out without leave to amend. The paragraphs grounded in malicious prosecution and misfeasance in (abuse of) public office was also struck with leave to amend.
[9] I order the plaintiff to pay to the defendants’ partial indemnity costs in the all-inclusive amount of $5,000 within 30 days. I consider this amount to be fair and reasonable based on the circumstances of this case.
Firestone J.
Date: October 25, 2016