Court File and Parties

Court File No.: CV-18-00606558-0000 Date: 2018-12-12 Superior Court of Justice - Ontario

Re: FAITH BAZOS (aka FAITH GOLDY), Applicant And: BELL MEDIA INC., Respondent

Before: Cavanagh J.

Counsel: Clayton Ruby and Stephanie DiGiuseppe, for the Applicant Steven G. Mason, Richard Lizius and Charlotte-Anne Malischewski, for the Respondent

Heard: By Written Submissions

Costs Endorsement

[1] The Applicant was a candidate for Mayor of the City of Toronto in the municipal election that took place on October 22, 2018. The Respondent owns and operates local television stations across Canada including Cable Pulse 24 (“CP24”).

[2] CP24, after initially agreeing to run political advertisements in support of the Applicant’s candidacy, had notified the Applicant on September 26, 2018 that it would not be able to run the advertisements that were planned and that it would refund the money that the Applicant had paid for these advertisements.

[3] The Applicant commenced this application on October 9, 2018 seeking a declaration that the Respondent is required to allocate time for the broadcasting of her partisan political advertisements relating to her candidacy in the 2018 the Toronto municipal election and a mandatory order requiring it to do so. In the alternative, the Applicant sought the same declaratory relief and mandatory order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.

[4] The Respondent objected to the jurisdiction of this court to adjudicate on the Applicant’s application. On October 18, 2018 I heard submissions on preliminary issues of whether the court has jurisdiction to grant the relief sought and, if so, whether it should exercise its jurisdiction.

[5] I released my decision on October 19, 2018 that the CRTC has exclusive jurisdiction to grant the relief sought on this application. The application was dismissed.

[6] The Respondent submits that, as the successful party, it is presumptively entitled to costs of the hearing on the jurisdictional issue. The Respondent seeks costs on a partial indemnity scale in the amount of $43,117.90 comprised of $36,073 in fees and $2,084.44 in disbursements, plus taxes. The Respondent submits that the amount claimed is reasonable in the circumstances.

[7] The Applicant submits that she is a public interest litigant and that she should be subject to the discretionary rule that is sometimes applied in public interest litigation that no costs, or reduced costs, are ordered. The Applicant submits that costs should not be awarded against her. Alternatively, the Applicant submits that the amount claimed exceeds the amount that would be fair and reasonable.

[8] The Applicant relies upon the decision of Sharpe J. (as he then was) in Mahar v. Rogers Cablesystems Ltd. in his addendum with respect to costs. Sharpe J. considered that it was fair to characterize the proceeding as a public interest suit and he noted that “[w]hile the ordinary cost rules apply in public interest litigation, those rules do include a discretion to relieve the loser of the burden of paying the winner’s costs and that discretion has on occasion been exercised in favour of public interest litigants”. Sharpe J. regarded the issue raised as novel and certainly a matter of public interest. He was satisfied that the application was brought in good faith and for the genuine purpose of having a point of law of general public interest resolved. Sharpe J. concluded that it was appropriate to exercise his discretion with respect to costs in favour of the applicant and to make no order as to costs.

[9] The Applicant also relies upon the decision of Perell J. in Incredible Electronics Inc. v. Canada (Attorney General), [2006] O. J. No. 2155. The Applicant submits that in that case, Perell J. focused on issues put forward in the application actually brought and their importance to the public and, whereas public interest status was not afforded to Incredible Electronics because it was litigating in the main for its own substantial commercial purposes, there is no commercial purpose in this case.

[10] The Respondent points out that in Incredible Electronics, the applicants had been proceeding with their application when Incredible Electronics advised that it intended to abandon the application and the applications of the other unrepresented applicants were dismissed. The issue of costs, therefore, was concerned with the merits of the application. The Respondent submits that in respect of my decision, the parties were before the Court on the question of jurisdiction alone, and no cost are being sought with respect to work done on the merits.

[11] In Singh v. Progressive Conservative Party of Ontario, 2017 ONSC 5165, the applicant commenced an application seeking judicial review of the decision of a political party not to nominate him as a candidate in his provincial riding. An issue arose with respect to whether certain evidence was subject to settlement privilege and motions dealing with this issue were decided in favour of the respondents. The applicant argued, citing Incredible Electronics as authority, that he qualified as a “partisan in a matter of public importance” because his allegations raised issues concerning public confidence in the democratic process and that no costs should be awarded in favour of the respondents or, alternatively, that the costs claimed should be substantially reduced. I was the judge who heard the motions and I addressed this submission and held at para. 7:

In relation to the issues on the motions that were before me, I do not agree that Singh qualifies as a “partisan in a matter of public importance”. On these motions, I was required to decide whether the communications at the meeting in question are subject to settlement privilege. Although the issues on the underlying application may involve matters of public importance that would qualify for a costs reduction (I make no determination on this question), the issues on the motions that were before me did not involve matters of public importance such that Singh qualifies for a costs reduction for this reason.

[12] The applicant in Singh sought leave to appeal the costs order. The majority of the Divisional Court held that a “public interest discount” was not appropriate and that the issues on the motions were separate from the application: Singh v. PCPO, 2018 ONSC 203 (Div. Ct.) at paras. 67 and 75.

[13] The jurisdictional issue that was before me was separate from the merits of the Applicant’s application. In the reasons for my decision on the jurisdictional issue I held at para. 72 that the decision of Sharpe J. in Mahar applied directly to this case and concluded that the area with which the dispute between the Applicant and the Respondent is concerned is within the exclusive jurisdiction of the CRTC.

[14] The Applicant submits that she felt obliged to invoke the jurisdiction of the Superior Court because of the Respondent’s delay in advising her that it would not run her advertisements. In my decision on the jurisdictional issue, I wrote at paragraph 92 that I was unable to find that successfully completing an adjudication of the issues raised by the Applicant could not have been done through an application to this CRTC after counsel for the Applicant was retained. On the record before me, I am unable to accept the Applicant’s submission that it was necessary for her to invoke the jurisdiction of the Superior Court instead of proceeding with an application to the CRTC.

[15] Given the decision in Mahar and the cases that had followed it, the jurisdictional issue was not a novel one, and involved the application of settled jurisprudence to the circumstances of this case. In relation to the jurisdictional issue that was before me, the Applicant does not qualify as a public interest litigant.

[16] As the successful party on the jurisdictional issue, and absent exceptional circumstances, the Respondent is entitled to costs on a partial indemnity scale.

[17] The Respondent’s Costs Outline shows the number of hours spent by lawyers and a law clerk for (i) preparation of responding application materials; (ii) preparation for the jurisdictional hearing; (iii) attendance at the hearing including preparation that day; and (iv) preparation of costs outline and supporting documents. The lawyers who did the work were senior counsel (a 1994 call), second counsel (a 2014 call), and third counsel (a 2016 call). Most of the time was spent by the two less senior members of the legal team. The partial indemnity hourly rates claimed are $350 for senior counsel, $225 for second and third counsel, and $80 for a law clerk.

[18] The Applicant submits that the fees claimed are not fair and reasonable, and that the fees claimed are more than are justified for a hearing that took place over one-half day of argument on a simple focussed issue. The Applicant submits that the number of lawyers, the number of hours claimed in preparation, the rates and the overall amount are not reasonable. The Applicant does not point to any specific aspect of the services rendered for this hearing that was unnecessary.

[19] The Applicant did not submit a costs outline in support of her submissions with respect to costs. As a result, I am unable to evaluate the reasonableness of the time expended by counsel for the Respondent in comparison with the time expended by counsel for the Applicant in addressing the jurisdictional issue. In Risorto v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 Winkler J., as he then was, held at para. 10 that in the absence of dockets of counsel for the unsuccessful party in support of its submissions, “[t]he attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air”. I take the Applicant’s failure to provide a costs outline into account when I consider her submission that the amount of time spent by counsel for the Respondent was excessive.

[20] The application was commenced on October 5, 2018 and on October 10, 2018 the preliminary hearing of the jurisdictional issue was scheduled for October 15, 2018. Additional materials directed to the jurisdictional issue were exchanged between October 11, 2018 and the day of the hearing. Given the nature of the application and the date that had been fixed for the municipal election, there is no question that the jurisdictional hearing involved considerable urgency and that counsel for the parties were called upon prepare materials and prepare for argument intensively over this period of time.

[21] I have considered the factors in Rule 57.01 of the Rules of Civil Procedure as well as the principle expressed in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CarswellOnt 2521 (C.A.) at para. 26 that, in fixing costs, the court must consider the amount that would be fair and reasonable for the unsuccessful party to pay. I conclude that the amount of time spent by the lawyers for the Respondent was reasonable and that the distribution of the work among the members of the legal team was appropriate. The partial indemnity hourly rates claimed are reasonable for this case. I also conclude that the fees claimed of $36,073 based upon the number of hours shown in the Respondent’s Costs Outline and the partial indemnity hourly rates claimed is an amount that would be fair and reasonable for the unsuccessful party to pay in the circumstances of this case.

[22] I fix costs to be paid by the Applicant to the Respondent in the amount claimed of $43,117.90 inclusive of fees, disbursements and applicable HST.

Cavanagh J. Date: December 12, 2018