Court File and Parties
COURT FILE NO.: CV-15-520150 DATE: 20170706 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOSEPH CAMPISI, Applicant AND: HER MAJESTY IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO and the INSURANCE BUREAU OF CANADA, Respondents
BEFORE: Justice Edward P. Belobaba
COUNSEL: Rocco Galati and Peter Murray for the Applicant Daniel Guttman and Padraic Ryan for the Attorney General of Ontario Jeff Galway and John Mather for the Insurance Bureau of Canada
HEARD: May 2 and 3, 2017
Costs Award
[1] In a decision released on May 31, 2017 I dismissed the applicant’s constitutional challenge to ss. 267.5(1) and 280 of the Insurance Act [1] on two grounds. I found that the applicant, a personal injury lawyer, could not establish either private or public interest standing. I also found that the constitutional challenge failed on the merits. [2]
[2] This was, at least on its face, a complex constitutional challenge of two provincial insurance provisions. The applicant advanced four legal bases for the challenge and filed a voluminous motion record with numerous affidavits and expert reports that demanded a substantial response. I fully expected the successful party’s costs submission, even on a partial indemnity basis, to be in the $100,000 to $150,000 range.
[3] I have now reviewed the costs submissions. The Insurance Bureau of Canada, as intervener, does not seek costs. Ontario notes that its costs on a partial indemnity basis were $244,000. However, “in light of the fact that the applicant is an individual” Ontario says it will reduce its costs request by two-thirds to about $83,000.
[4] The applicant makes two submissions. First, no costs should be awarded because he acted in the public interest. Second, if costs are awarded, then based on a proportional comparison of the time spent on this application with the public sector salaries paid to the Crown counsel that represented the respondent herein, the costs award should be no more than $24,908.
[5] Neither submission succeeds. This is not a case of a public interest litigant who can justify preferential treatment. The applicant, albeit a concerned personal interest lawyer, was found not to have private or public interest standing. His constitutional arguments were devoid of factual underpinning and wholly without merit. As Justice Ducharme noted in St. James Preservation Society [3], “it is not in the public interest, or indeed anyone’s interest, to encourage litigation that is clearly speculative or without merit.” [4]
[6] The applicant’s attempt to measure the costs payable by reference to public sector lawyer salaries is also a non-starter. The case law is clear that costs are not to be reduced simply because they are being claimed for legal work done by a salaried lawyer employed by the Crown. [5] Indeed s. 131(2) of the Courts of Justice Act [6] recognizes the distinctive position of the Crown in litigation:
In a proceeding to which Her Majesty is a party, costs awarded to Her Majesty shall not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown ….
[7] In my view, if Ontario is content with a costs award that is approximately one-third of a reasonable costs claim, then I should first determine what constitutes a reasonable costs claim on the facts herein. Here, given the high probability that the applicant’s constitutional submissions would be dismissed on first principles (as indeed they were) and given that some of the heavy lifting on this application was done by the intervener, a reasonable costs claim on the part of Ontario would be at most $150,000. One third of this amount is $50,000.
[8] I therefore find it fair and reasonable to fix costs at $50,000 all-inclusive, payable forthwith by the applicant Joseph Campisi to the respondent Province of Ontario.
Belobaba J.
Date: July 6, 2017