Court File and Parties

Court File No.: 58388/18 (St. Catharines) Date: 2019-02-28 Superior Court of Justice - Ontario

Re: Dik Lee, Applicant And: Magna International Inc. and Venest Industries Inc., Respondents

Before: The Honourable Mr. Justice R. A. Lococo

Counsel: Dik Lee, Plaintiff, acting in person Eric T. Gresham, for the Respondents

Heard: By written submissions received January 25 to February 5, 2019

Endorsement – Costs

[1] This Endorsement addresses the issue of costs arising from the Respondents’ motion to dismiss, without leave to amend, the application brought by the Applicant (an employee of one of the Respondents) seeking access to all documents that contain the Applicant’s personal information in the control of the Respondents and their affiliates. As set out in Reasons for Decision dated January 7, 2019 (reported at 2019 ONSC 102), I granted the Respondents’ motion in part by striking in its entirety the Applicant’s prayer for relief, with leave to amend the application within six months. The costs of the motion were left to be determined based on written submissions.

[2] The Respondents say that given their substantial success on the motion, they should be awarded partial indemnity costs against the Applicant. The Respondents’ costs outline calculates partial indemnity costs of $5,378.38, which includes disbursements of $770.38.

[3] The Applicant (acting on his own behalf without counsel) disputes the Respondents’ position that they were successful on the motion. The Applicant says it was he that was “successful in moving the application forward with a minor amendment to the application within six months”. He therefore seeks a costs order in his favour, confined to disbursements he incurred of $232.87.

[4] Consistent with previous case law, the successful party in a proceeding has a reasonable expectation of being awarded costs in the absence of special circumstances: see Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135 (C.A.), at para. 21. As indicated by the Court of Appeal in Foulis v. Robinson (1978), 21 O.R. (2d) 769 (C.A.), at p. 776 and McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 59 O.R. (3d) 97, (C.A.), at paras. 37-38, costs awards are normally limited to partial indemnity costs, except in the “rare and exceptional case”.

[5] Having considered the parties’ positions, I see no basis for the Applicant’s contention that he was the successful party on the motion. I struck out in its entirety paragraph 1 of the application containing the Applicant’s prayer for relief, with leave to amend. Without a prayer for relief, his application is doomed to fail unless he amends the application within six months. If he fails to do so, by the terms of the order, the Respondents may move to dismiss the application without notice to the Applicant. While I did not dismiss the Application at this stage, I expressed the cautionary view (at para. 54 of my Reasons) that “there is good reason to doubt that an application seeking disclosure of personal information is an advisable way to advance any substantive claim that Mr. Lee may have”, suggesting that the Applicant “carefully consider (preferably with the benefit of legal advice) whether taking that route serves his interests.” If that is the Applicant’s definition of success, the advisability of obtaining legal advice is manifestly evident.

[6] Given the terms of my order, I agree with the Respondents’ submission that they were substantially successful on their motion. I qualify their degree of success by the word “substantially” since the Respondents requested dismissal of the application. I left open the possibility that the application could be remediated, while expressing doubt as to whether it was advisable for the Applicant to proceed with the application. I therefore agree that the Respondents should be awarded partial indemnity costs, with appropriate adjustment in the amount to reflect the fact that their success was less than complete.

[7] In determining the quantum of costs payable, I also considered the Applicant’s argument that the Respondents caused delay in the hearing of the motion by failing to properly serve the Applicant with their motion to dismiss. The Applicant also argued that the Respondents unnecessarily lengthened the proceeding by arguing that the Applicant brought his application under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), given my finding that the application was not in fact based on an alleged right to access personal information under PIPEDA: see para. 39 of my Reasons.

[8] I find no merit in either argument. A process server provided the Applicant with the Respondents’ Notice of Motion, Motion Record and Factum ten days prior to the initial return of the motion and the application. The Respondents also provided the Applicant with the materials by email the same day. On the return date, the motion and the application were adjourned (ultimately at the Applicant’s request), providing the Applicant with the opportunity to file a factum and book of authorities relating to the motion to dismiss. Therefore, I see no basis to suggest that the Respondents somehow delayed the hearing of the motion. As well, while I found in my Reasons that the application did not assert alleged rights under PIPEDA, the references to PIPEDA in the application and supporting material (including the prior correspondence between the parties) left ample room for confusion on that point.

[9] In my review of the Respondents’ costs outline, I generally found the time spent, hourly rates and disbursements incurred to be reasonable and appropriate in the circumstances. By reason of s. 36 of the Solicitors Act, R.S.O. 1990, c. S.15, the fact that the Respondents were represented by in-house counsel does not provide grounds for disallowing or reducing a costs award. Referring to s. 36 of the Solicitors Act, the Applicant noted in his submissions that Respondents’ counsel was in fact an employee of one of the Respondents but not the other. However, I do not see that as a relevant consideration. Respondents’ counsel was clearly representing both Respondents, one of which is a subsidiary of the other. From a costs perspective, it makes no difference which one is counsel’s actual employer.

[10] In any case, as noted by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”

[11] In all the circumstances, I would fix the Respondents’ partial indemnity costs at $3,000 including disbursements, payable by the Applicant within 30 days.

The Honourable Mr. Justice R.A. Lococo Date: February 28, 2019