COURT FILE NO.: CV-09-431800
DATE: 20181212
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PREETI KAPOOR
V.
RADOJE KUZMANOVSKI also known as RADOJA KUZMANOVSKI, KRASIMIR PETROV, JASON AGUILAR, and UNIFUND ASSURANCE COMPANY
BEFORE: Daley, RSJ.
COUNSEL: J.M. Strype, J.E. Brown and M.A. De Sanctis, for the Plaintiff
D. Abreu, for the Defendant, Unifund Assurance Company
K.B. Chambers, for the Defendants Kuzmanovski and Petrov
P.W. Kryworuk, for the Intervenor, The Advocates’ Society
B. Kettles, for the Intervenor, The Ministry of the Attorney General
C O S T S E N D O R S E M E N T
Overview
[1] This costs decision follows my Reasons for Decision in this matter - Kapoor v. Kuzmanovski, 2018 ONSC 4770.
[2] Costs submissions were delivered on behalf of all of the parties, other than the Plaintiff Aguilar and the intervenors.
[3] It was submitted on behalf of the plaintiff that no costs should be awarded to the successful defendants on the plaintiff's motion for several reasons, including that the matters raised on the motion were novel, the motion constituted a test case, and the matter before the court was one of public interest.
[4] Following receipt of the submissions on behalf of the plaintiff, supplementary reply submissions were requested from the defendants regarding the plaintiff’s submissions that the matter was novel and as such no cost should be awarded.
[5] The defendants Kuzmanovski, Petrov and Unifund Assurance Company filed costs submissions.
[6] No cost submissions were filed on behalf of the defendant Aguilar and none were requested from the intervenors.
[7] Counsel for the defendant Unifund sought costs on a partial indemnity basis, inclusive of assessable disbursements and applicable taxes in the sum of $9,239.11.
[8] Counsel on behalf of the defendants, Kuzmanovski and Petrov, sought partial indemnity costs inclusive of disbursements and applicable taxes in the sum of $23,433.37.
[9] Counsel on behalf of the plaintiff did not submit a costs outline, however in the submissions filed, in addition to taking the position that costs should be denied to the defendants on the basis that the motion was a test case, novel and a matter of public interest, it was further submitted that if costs were to be awarded the amounts claimed by the defendants were excessive and should be substantially reduced or payable in the cause.
Analysis:
[10] It has been stated frequently that the fixing of costs reasonably payable are in the discretion of the court.
[11] In cases where the court determines that an issue pursued by the unsuccessful party was technically novel, courts have concluded that rather than denying the successful parties' costs, the cost awarded may be reduced: Baldwin v. Daubney 33317 (ON SC) at paras 19 – 22, and 31 – 32.
[12] In my decision Kapoor v. Kuzmanovski, 2018 ONSC 4770, inviting participation by the intervenors, I noted at para 15 that "the plaintiff's motion raises novel and significant issues as to the rights of parties involved in motor vehicle accident cases to have the action tried by an impartial jury." I remain of the view, having heard of the motion that it was novel in a technical way, however there was a substantial body of jurisprudence that did not favour the positions put forward on behalf of the plaintiff.
[13] The plaintiff did not challenge the constitutionality of either the Courts of Justice Act R.S.O. 1990, c. C.43 or the Juries Act R.S.O. 1990, c. J.3 but rather sought to have the court reconsider judicial determinations that had already been made on the issue as to whether or not challenges for cause were available in civil jury cases.
[14] It was concluded in three earlier decisions that, absent express statutory authority, there was no lawful basis for a trial judge to allow a challenge for cause in a civil jury selection: Thomas-Robinson v. Song (1997), 1997 12154 (ON SC), 34 OR (3d) 62 (Gen.Div.); Kayhan v. Greve (2008) 32832 (Div. Ct.); Nemchin v. Green, 2017 ONSC 2126.
[15] Thus, the jurisprudence on the plaintiff's main submission that a challenge for cause should be allowed ran up against significant jurisprudence to the contrary.
[16] Counsel also sought to have the court interpreted by analogy s. 34 of the Juries Act to provide for a challenge for cause based on "want of eligibility. Further, it was argued that prospective juror bias or partiality was tantamount to having an "interest" in an action under s. 3 (3) of the Juries Act, thus giving rise to a right to challenge for cause in a civil jury selection. Both of these submissions were technically novel, however both were dismissed for the reasons given.
[17] Overall, the motion was technically novel but not to such an extent that costs should be denied to the successful defendants. The novelty of the issue, although modest, will however be taken into account in my fixing of the defendants' costs.
[18] Further, I have concluded that this motion was not a test case given the jurisprudence already in place and considering that only one aspect of the motion involving statutory interpretation had not previously been considered by a court.
[19] As to the plaintiff's position that the motion was one involving such a level of public interest that no costs should be awarded, I reject that argument.
[20] T. DuCharme J. in his decision in St. James' Preservation Society v. Toronto (City), 2006 22806 (ON SC) thoroughly reviewed the law and jurisprudence as to the entitlement of costs within public interest litigation.
[21] At para 14 of that decision DuCharme J. quoted from the decision of Sharpe J. in Re Mahar and Rogers Cablesystems Limited (1995), 1995 7129:
[14] A similar concern was raised by Sharpe J. in Re Mahar and Rogers Cablesystems Limited (1995), 1995 7129 (ON SC), 25 O.R. (3d) 690 at 704-705 (S.C.J.):
public interest litigants are in a different position than parties involved in ordinary civil proceedings. The incentives and disincentives created by costs rules assume that the parties are primarily motivated by the pursuit of their own private and financial interests. An unrelenting application of those rules to public interest litigants will have the result of significantly limiting access to the courts by such litigants. Such a consequence would be undesirable with respect to proceedings such as the present one which was, in my view, brought on a bona fide basis and which raised a genuine issue of law of significance to the public at large.
As a result, Justice Sharpe did not make a costs order against the unsuccessful applicant.
[22] Also, in the decision of Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at 304 Iacobucci J. identified two categories of typical public interest litigants as follows:
(i) litigants who have no direct pecuniary or other material interest in the proceedings (e.g. a nonprofit organization); and
(ii) litigants who do have a pecuniary interest, but whose interest is modest in comparison to the cost of the proceedings.
[23] I have concluded that the plaintiff in the present action does not fall into either of the categories referenced by Iacobucci J. The plaintiff in this case has a direct pecuniary interest in the outcome of the litigation in that he is seeking damages for personal injuries sustained by him. Further, there has been no evidence or even a submission that the plaintiff's pecuniary interest in the outcome of the litigation is only modest compared to the cost of the proceedings.
[24] There are several considerations to be examined which are outlined by DuCharme J. at para. 17 and following which identify the indicia of public interest litigation, however I have concluded that there is no need to review those given my determination that the plaintiff himself is not a public interest litigant.
[25] Thus, I reject the submission on behalf of the plaintiff that the defendants should be denied costs on the basis that the plaintiff is a public interest litigant.
[26] As to the quantum of costs, it is notable that lead counsel on behalf of the plaintiff was assisted by two gowned associate counsel during his presentation of the submissions on this motion. No costs outline was submitted on behalf of the plaintiff. In spite of that, counsel for the plaintiff urges that the costs claimed by the defendants are excessive.
[27] As was noted by Winkler J. (as he then was) in Risorto v. State Farm Mutual Automobile Insurance Co. 2003 43566 (ON SC), [2003] O.J. No. 990 at para 10, where a party opposing an award of costs asserts that the time spent by opposing counsel was excessive, where counsel fails to put before the court details as to his own time spent, the submission is "no more than an attack in the air." As such, absent details as to the time spent by plaintiff's counsel, I can give very little weight to the submission made on behalf of the plaintiff.
[28] As to the costs claimed on behalf of the defendants Kuzmanovski and Petrov, although counsel McCarthy attended for submissions on the motion, he advised that no time was being charged in terms of costs claimed for his attendance. Counsel for these defendants clearly took the lead in preparing the response to the plaintiff's motion and absent details as to the time spent by the plaintiff's lead counsel and his associates, I see no basis upon which to reduce the face amount of the costs claimed on behalf of these defendants. However, recognizing the technical novelty of the motion, I have determined that a 15% reduction in the costs claimed by these defendants reasonably takes into account that level of novelty and as such these defendants are entitled to costs in the reduced amount of $19,918.36.
[29] With respect to the costs claimed on behalf of the defendant Unifund, again having considered the costs outline and the submissions of all counsel, and absent a costs outline on behalf of the plaintiff, I have concluded that the face amount of the costs as claimed on behalf of this defendant should not be reduced, however taking into account a deduction at 15% for the technical novelty of the motion I have concluded that this defendant should receive an award of costs in the sum of $7853.24.
[30] These costs shall be payable to the defendants by the plaintiff within 60 days.
[31] An order shall issue accordingly in these terms.
Daley, RSJ.
DATE: December 12, 2018
COURT FILE NO.: CV-09-431800
DATE: 20181212
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PREETI KAPOOR
V.
RADOJE KUZMANOVSKI also known as RADOJA KUZMANOVSKI, KRASIMIR PETROV, JASON AGUILAR, and UNIFUND ASSURANCE COMPANY
BEFORE: Daley, RSJ.
COUNSEL: J.M. Strype, J.E. Brown and M.A. De Sanctis, for the Plaintiff
D. Abreu, for the Defendant, Unifund Assurance Company
K.B. Chambers, for the Defendants Kuzmanovski and Petrov
P.W. Kryworuk, for the Intervenor, The Advocates’ Society
B. Kettles, for the Intervenor, The Ministry of the Attorney General
COSTS ENDORSEMENT
Daley, RSJ.
DATE: December 12, 2018