Stuart v. University of Western Ontario, 2017 ONSC 7390

CITATION: Stuart v. University of Western Ontario, 2017 ONSC 7390

COURT FILE NO.: CV-14-513849

DATE: 2017-12-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Ian Stuart, Plaintiff

– AND –

The University of Western Ontario, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Michael Miller, for the Plaintiff Sarah Jones and Ivana Bozinovic, for the Defendant

HEARD: October 11, 2017, costs submissions in writing

COSTS Endorsement

[1] On November 22, 2017 I released my decision in respect of this Rule 21 motion, dismissing the Defendant’s request to strike out the claim.

[2] This was the third such motion brought by the Defendant. The first two resulted in rulings by Faieta J. striking the Statement of Claim with leave to amend. I found that this time around the Plaintiff had addressed the concerns expressed by Faieta J. and that he had now succeeded in pleading in a satisfactory way.

[3] The costs awarded by Justice Faieta to the Defendant on the first motion amounted to $2,000. Those appear to have been paid by the Plaintiff. The costs awarded by Justice Faieta to the Defendant on the second motion amounted to $3,000. Counsel for the Defendant advises that these costs have not yet been paid by the Plaintiff.

[4] In its costs submissions, counsel for the Defendant states that had the Defendant been successful it would have sought costs of just under $3,500, inclusive of disbursements and tax. That amount is in line with the level of costs in the previous two motions. Rule 21 motions by their nature are relatively light on costs, given that they are brought without the need to prepare affidavit evidence. As a repeat motion on the same case, it would be surprising if the costs incurred by either party were substantially more than in the previous two motions.

[5] The Plaintiff, however, does seek a surprisingly high amount of costs. In their costs outline, counsel for the Plaintiff seeks just shy of $15,000 on a partial indemnity basis. In their submissions, counsel explains that they triple-teamed this motion with two partners and an associate. This was necessary, they explained, in light of the importance of the matter to the Plaintiff and the fact that it was their third try at pleading their claim.

[6] I appreciate that Plaintiff’s counsel put great time and effort into this motion, and that all of that paid off in a successful motion. However, I cannot help but think that they are seeking to have the Defendant pay the price of their previous failures. The Plaintiff deserves his costs of the present motion, but I see no reason that the level of costs that the Defendants are made to bear should so far exceed the level of costs that the parties incurred in the previous two motions.

[7] Costs are always discretionary under s. 131 of the Courts of Justice Act. In general, motions courts are mandated to exercise that discretion to fix costs in accordance with the criteria set out in Rule 57.01 of the Rules of Civil Procedure. This includes, among other things, “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”: Rule 57.01(1)(0.b).

[8] It takes the Defendant by surprise that the costs sought by the Plaintiff this time around are so much higher than before. I will exercise my discretion to reduce the Plaintiff’s award to a level more in line with the previous motions.

[9] As indicated, counsel for the Defendant would have sought costs in the range of $3,500. That strikes me as a reasonable amount under the circumstances. I am satisfied that it is what is fair and just in this case: Boucher v Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA).

[10] The Defendant shall pay the Plaintiff costs in the all-inclusive amount of $3,500 in respect of this motion. If the Plaintiff has not yet paid the $3,000 in costs of the previous motion to the Defendant, the Defendant may set off that amount and pay the Plaintiff the balance of $500.

Morgan J.

Date: December 12, 2017