Court File and Parties

CITATION: United Soils Management Ltd. v. Mohammed, 2017 ONSC 6350

COURT FILE NO.: CV-16-560261

DATE: 2017-10-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: UNITED SOILS MANAGEMENT LTD., Plaintiff

AND:

KATIE MOHAMMED, Defendant

BEFORE: Lederer J.

COUNSEL: William A. Chalmers, for the Plaintiff

David Sterns, Sabrina Callaway, for the Defendant

HEARD: In Writing

COSTS ENDORSEMENT

[1] This endorsement considers what cost should be awarded as a result of a motion to dismiss a proceeding, as a Strategic Lawsuit Against Public Participation (colloquially “SLAPP” or “Gag Proceeding”). Such motions are brought pursuant to the Courts of Justice Act R.S.O. 1990, c. C.43 section 137.1(3).

[2] The motion was successful.

[3] The action was dismissed.

[4] Motions brought under this provision reflect on our collective desire, on the one hand, to discourage the use of litigation as a means of unduly limiting public expression on matters of public interest and on the other to promote broad participation in debates concerning these issues (Courts of Justice Act, section 137.1(1)).

[5] The Courts of Justice Act provides special guidance as to the consideration of costs following such a motion and such an order:

If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

(Courts of Justice Act, section 137.1(7)

[6] Relying on this section, the defendant, the successful party on the motion, seeks full indemnity costs in the amount of $122,286.94. The plaintiff, the unsuccessful party, acknowledges that given the reasons and ruling of the court costs should be awarded to the defendant on a full indemnity basis.

[7] The difficulty is that the plaintiff believes that far more time was used by counsel for the defendant than is appropriate in the circumstances. As counsel sees it, the 365 hours recorded and claimed is too much. He suggests that the hours of each of the two lawyers involved be cut in half, the hourly rates they have used applied and the value of disbursements added. The resulting calculation demonstrates costs of $56,710.80. Counsel points out that this still represents 44% more time than spent by counsel for plaintiff.

[8] The fallacy in this approach becomes apparent with the realization that while counsel for the plaintiff used much less time, the value of that time was much more than the costs he recommends to the court and not that much less than the value of the claim being made. The plaintiff’s costs total $103,721.74. The reason for this is not hard to find. Of the 365 hours claimed 42 were attributed to senior counsel ($575 per hour) while the remaining 323 hours was taken up by junior counsel ($225 per hour). This is to be compared with 2.3 hours spent by a clerk ($170 per hour) and 126.1 hours by senior counsel ($675 per hour for 2016 and $695 per hour for 2017).

[9] One would expect senior counsel to be more efficient in terms of the time spent. Presumably, that is one of the reasons the rate is so much higher.

[10] In the circumstances I see no reason to divert from the general direction found in the Courts of Justice Act, section 137.1(7).

[11] I award costs to the defendant to be paid by the plaintiff in the amount of $122,286.94.

Lederer J.

Date: October 25, 2017