Court File and Parties
COURT FILE NO.: 11-52160 DATE: November 13, 2018
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Hajrizi v Ottawa Carleton District School Board
BETWEEN: Roksana Hajrizi, Ismet Hajrizi and Celina Urbanowicz, Plaintiffs AND: Ottawa Carleton District School Board, Mark A. Harris and Noah Raahemi, Defendants
BEFORE: Honourable Mr Justice Martin James
COUNSEL: William N. Fuhgeh for the Plaintiffs Craig O’Brien for the Defendants other than Noah Raahemi, Self-Represented
DATE HEARD: Written Submissions
COSTS ENDORSEMENT
James, J
Facts
[1] This is a costs endorsement following an 18 day jury trial where the jury was discharged on day eight of the trial and thereafter the proceeding continued as a judge-alone trial. The amount claimed exceeded $3,000,000.
[2] On consent, an order bifurcating the proceeding into liability and damage components was made part way through the trial.
[3] The liability issues were resolved in favour of the defendants and the plaintiff’s action was dismissed with costs.
[4] The defendant, Noah Raahemi, was self-represented at trial and did not deliver any costs submissions.
[5] This endorsement addresses the costs claimed by the Ottawa Carleton District School Board (“OCDSB”) and Mark Harris, who was then a vice-principal employed by OCDSB.
[6] OSDSB claims all-in costs of $213,937.37 on a substantial indemnity basis or $150,199.61 on a partial indemnity basis.
[7] There were no written offers that triggered the costs consequences of Rule 49.
Positions of the Parties
[8] The school board defendants say that they are entitled to substantial indemnity costs because:
a) The plaintiffs made unfounded accusations of malice, collusion, dishonesty, misfeasance in public office, intentional infliction of mental suffering and evidence destruction;
b) Some of the allegations contained in the plaintiffs’ opening statement were not supported by the evidence that was subsequently led by the plaintiffs at trial;
c) One of the plaintiffs, Roksana Hajrizi, exhibited “extreme emotional reactions” that seemed to depend on whether the jury was present or absent;
[9] The plaintiffs say that:
a) The defendants’ case was “over-lawyered” with the involvement of up to three lawyers and a student at a time, with the result that the amount claimed is clearly excessive;
b) Defendants’ counsel indicated that he was prepared to assist in serving subpoenas for some of the defendants’ witnesses but then was not candid in disclosing who was actually under subpoena and who was not;
c) The school board defendants were late answering their undertaking;
d) There was spoliation of evidence in relation to notes, reports and phone records under the control of the school board witnesses;
e) The plaintiffs Ismet Hajrizi and Celina Urbanowicz, the parents of Roksana Hajrizi, were parties solely for the purpose of their Family Law Act claims and therefore should not be liable for an amount that is disproportionate to the degree of their involvement;
f) All the plaintiffs are recipients of benefits from the Ontario Disability Support Program and a large costs award in favour of the school board defendants would be contrary to access to justice considerations.
Discussion and Analysis
[10] The applicable principles in determining costs are contained in Rule 57 of the Rules of Civil Procedure. Important among these is the notion that, generally speaking, a party is entitled to recover a portion of his or her reasonable costs from the unsuccessful parties.
[11] Substantial indemnity costs, as distinguished from partial indemnity costs, are only allowed in limited circumstances such as to sanction improper or unreasonable conduct or to recognize a favourable offer to settle made before trial.
[12] The bill of costs is broken down as follows:
Category Partial Indemnity Substantial Indemnity a) Pleadings $ 2,325.00 $ 3,487.50 b) Discoveries $10,533.60 $ 15,800.00 c) Trial $99,951.60 $149,927.40
[13] I have determined that this is an appropriate case for substantial indemnity costs because of the combined effect of:
i) the unproven allegations of serious impropriety on the part of the school board and its representatives;
ii) the unrelenting insistence by the plaintiffs in the correctness of their position despite considerable evidence to the contrary. For example, in closing argument, counsel for the plaintiffs contended that every witness who had given evidence (with the exception of the members of the Hajrizi family) had not been truthful, including several witnesses called by the plaintiffs; and
iii) the manner in which the plaintiffs’ counsel conducted the trial and in particular, by engaging in examinations in chief and cross-examinations by that were prolix and unnecessarily repetitive, thereby significantly adding to the time required to complete the trial.
[14] The bill of costs lists two lawyers, a law student and a clerk who charged time for the trial. The time spent and the service provided by each biller is particularized in the bill of costs. No charge was claimed for the law student while actually attending the trial.
[15] Junior counsel, Ludmilla Jarda, was gowned and present during the trial but did not take part in examining witnesses or making submissions. Her charge-out rate was $210.00 per hour for a 2013 call. Where the issues are complex, the trial is lengthy and the monetary value is high, a counsel fee may be allowed for both senior and junior counsel. In my view, the circumstances of this trial are sufficient to justify a counsel fee for two lawyers at trial. I note that there is no claim for two lawyers during the discovery phase of the proceeding.
[16] The time spent in the trial category for the law student (42.3 hours) and the law clerk (66 hours) seems high even though there was no charge for the law student’s actual attendance at trial. The combined value of their services exceeds $12,000. This ought to be reduced to a lesser amount and in my view the aggregate sum of $5,000.00 is reasonable, which results in a reduction of $7,374.00.
[17] Subject to this adjustment, I find that the defendants’ costs claim, both in the time spent and the rates charged, to be proportional in relation to the complexity of the case and the amount involved.
[18] While the point is not completely clear, it appears that the hourly rate used by counsel to calculate the bill of costs is the lesser of two rates – the firm’s standard rate and another, lower rate agreed to for services provided to this particular client. In my view, the lower rate actually charged to a client is the proper rate to be used when calculating substantial and partial indemnity costs. (see TransCanada Pipelines Limited v. Royal Insurance Company of Canada Limited, et al.). The award herein assumes this to be the case.
[19] It has been held on numerous occasions that a litigant’s impecuniosity is not sufficient reason to displace the usual rule that costs should follow the event. There are exceptions to the general rule. In particular, a justifiable although unsuccessful action sometimes warrants a reduction in what would otherwise be a reasonable amount for costs. In addition, there is an access to justice aspect to the determination of an appropriate costs order for litigants of modest means. The flip side of this argument is that costs should not be watered down to the point of encouraging litigants to pursue unmeritorious claims because their impecuniosity insulates them from the natural consequences of their decision to proceed to trial. The present case sounds more in the latter category than the former. The plaintiffs’ allegations were not credible and they pressed their inflammatory assertions of malice, collusion, misfeasance in public office, etc. from start to finish.
[20] The evidence of actual impecuniosity on the part of the plaintiffs was sparse and not well-developed.
[21] After balancing the relevant factors, I have concluded that there ought to be no reduction on account of the plaintiffs’ alleged impecuniosity.
[22] Also, the plaintiffs were represented by experienced counsel and they would have known that a multi-week trial would result in significant costs exposure for the unsuccessful parties.
[23] The total fees, not including disbursements, allowed to the school board defendants shall be fixed in the sum $161,841.30 plus HST.
[24] As for disbursements, although no experts retained by the school board defendants testified at trial, they incurred expert expenses of $7,937.50. This expense related to the psychiatric report of Dr. Dijana Oliver. The details of the service provided are not described beyond a reference to a “Direct Assessment” for $7,260.00 and a phone call for 75 minutes at $750.00 per hour for a total of $1,059.38. On the available information and considering that the witness did not testify, these amounts seem unreasonably high and are reduced to $4,000.00 plus HST, a reduction of $3,937.50 before HST.
[25] The other disbursements are allowed.
[26] I have considered how the liability for costs ought to be apportioned between the plaintiffs. As a general rule, where two or more persons are liable for costs, the liability is joint and several. Sometimes, however, costs are not awarded against family members who have made derivative claims under the Family Law Act when the primary litigant is unsuccessful.
[27] In this case the primary litigant was Rokzana Hajrizi who was a teenager about 15 years old when the incidents in question occurred. She would still have been a minor when the action was commenced two years later. Despite this, I am not aware that a litigation guardian was appointed or at least the title of proceeding does not disclose one. I think it can be inferred that her parents played a pivotal role in initiating and prosecuting the litigation including providing instructions respecting how the action was to be framed.
[28] By the time of trial, Ms. Hajrizi was about 24 years old. The evidence was that she continued to live at home and had ongoing physical and mental health challenges. It appears that she continues to be dependent to some extent on her parents. At the same time, she did not come across as a reluctant litigant during the course of the trial or when giving evidence. To the contrary, she seemed fully engaged in the trial process.
[29] In the circumstances present, here I am not prepared to find Rokzana Hajrizi jointly and severally liable with her parents for the full amount. I find that her costs liability should be capped at $100,000 all-inclusive.
Disposition
[30] To summarize, the costs payable to the school board defendants by the plaintiffs, Ismet Hajrizi and Celina Urbanowicz, are the aggregate of $161,841.30 (fees), $21,039.36 (HST on fees), $250 (non-taxable disbursements), $15,951.07 (taxable disbursements), $2,073.63 (HST on disbursements) for a total of $201,155.36 on a joint and several basis. Rokzana Hajrizi is liable to the school board defendants for $100,000 of the aforesaid costs, inclusive of fees, disbursements and taxes.
[31] If I have made an arithmetical or other apparent error in the calculations that cannot be resolved by discussion between counsel, a teleconference may be arranged through the trial coordinator at Pembroke.
James, J.