COURT FILE NO.: 16-57318 DATE: 2019-03-15 SUPERIOR COURT OF JUSTICE (ONTARIO)

RE: Arthur Camporese (Plaintiff)

• and – Bay Area Investigations and Protection Services Inc. (Defendant)

BEFORE: A. J. Goodman J.

COUNSEL: S. Coons, for the Plaintiff C. Wydrzynski, for the Defendant

DATE: In chambers

Costs Endorsement

[1] On February 8, 2019, I ruled in favour of the plaintiff’s motion for production of the investigative and surveillance report prepared by the defendant company. At the conclusion of the motion, I invited the parties to resolve the issue of costs or to furnish their costs arguments. I have received the parties’ respective costs submissions.

[2] The plaintiff seeks costs from the defendant, on a partial indemnity basis, as outlined in the Bill of Costs in the total amount of $3,339.82.

[3] The defendant seeks costs from the plaintiff related to this action in the amount of $7,551.24, as set-off costs for its delay and undertakings motion that was resolved prior to the hearing of this motion.

Positions of the Parties

[4] The plaintiff submits that he was entirely successful in his argument that the investigate report and surveillance videotape are not protected from disclosure by either litigation privilege or common law privilege and ought to be produced by the defendant.

[5] The plaintiff requested production of the report and videotape on numerous occasions prior to bringing the within motion but the defendant continued to maintain privilege and refused to produce same.

[6] The plaintiff says that given the position taken by the defendant throughout the course of this action, the specific motion was entirely necessary. The original motion was initially scheduled for November 29, 2018 and heard that day. However, due to additional arguments advanced by the defendant (which were not outlined in a factum as one was never filed in advance of the hearing date) an additional date was required.

[7] In advance of the January 3, 2019 hearing date, the plaintiff was required to file additional material, conduct additional research and prepare additional submissions as a result of the arguments raised by the defendant which mainly dealt with common law privilege. The defendant was unsuccessful in establishing litigation or common law privilege over the productions sought by the plaintiff.

[8] In the alternative, the plaintiff submits that the defendant’s request for costs is unreasonable and the actual time spent by defendant’s counsel is excessive.

[9] The defendant submits that it was successful for the series of motions related to this action. The defendant brought a motion on November 29, 2018 for an order dismissing the action as against the defendant, or, in the alternative, a Timetable Order and an order dismissing the action should the plaintiff fail to comply with the timetable. The defendant abandoned its relief for a dismissal order but was successful in obtaining its Timetable Order. The defendant submits that the plaintiff has failed to comply with the order. To date, the plaintiff has not served a sworn Affidavit of Documents.

[10] In response to the defendant's motion, the plaintiff brought a cross-motion for: an Order requiring the defendant to produce a copy of a surveillance report and videotape, or, in the alternative, an Order requiring the defendant to produce same for inspection; an Order requiring Ronald Leslie Gooding to attend for a cross-examination on his Affidavit of Documents, sworn January 4, 2018; and an Order amending the plaintiff's name in the style of cause from “Arthur Camporese" to “A.C.", or, in the alternative, an Order sealing the court file. The defendant submits that the plaintiff was only successful in obtaining the Production Order and failed in obtaining relief in all other aspects. As such, it merits a cost award.

Legal Principles

[11] As a general principle, costs are in the absolute discretion of the court. The fixing of costs is not simply a mechanical exercise. 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”.

[12] The Court of Appeal, in Boucher v. Public Accountants Council for the Province of Ontario, (2004) 71 O.R. (3d) 291, articulated the principles that govern costs assessments. In that case, Armstrong J.A. noted that Rule 57.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides: “When the court awards costs, it shall fix them in accordance with subrule (1) and the tariffs.” He continued: “…Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43”.

[13] It is a well-settled principle that the successful party should have its costs and there is no good reason in the present circumstances to depart from this legal principle.

[14] The court must, first and foremost, be fair and reasonable when exercising its discretion to award costs. Proportionality is of fundamental import.

Factors to be Considered in Fixing Costs

[15] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contains what amounts to a non-exhaustive checklist of factors that should guide the court in its reasoning when awarding costs in the exercise of its discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 57.01(1) provides, in part:

In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider…

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) 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;

(a) the amount claimed and the amount recovered in the proceeding;

(c) the complexity of the proceeding;

(d) the importance of the issue;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was

(i) improper, vexatious or unnecessary, or

(i) any other matter relevant to the question of costs.

[16] The amount of costs on a motion varies widely depending on the circumstances, including the complexity of the issue, of facts, and the witnesses from whom evidence is required.

Discussion

[17] The plaintiff's cross-motion for the production of the investigative report and videotape raised a novel issue regarding whether surveillance conducted in prior litigation is afforded protection from production in subsequent litigation by common law, litigation or case-by-case privilege.

[18] I do not accept the defendant’s characterization of these motions. The defendant's motion to dismiss was abandoned once counsel made submissions respecting the relief sought on the first day of the hearing. The issuance of a timetable was not opposed by the plaintiff.

[19] While it is true that the plaintiff could be criticized for being tardy in bringing this motion for the impugned records and surveillance, it was the non-production of the surveillance report that delayed the examinations and this litigation. I am persuaded that it was the defendant and not the plaintiff that precipitated and raised the necessity of having these series of motions.

[20] With respect to the submissions that the defendant is entitled to costs or a set-off arising out of the motion for delay or the request for a timetable from November 2018, I agree with the plaintiff’s submissions in denying any relief for the defendant.

[21] In my view, any delay in the furtherance of this action was caused solely by the defendant's failure to produce the subject surveillance report. The only step that the defendant was required to take to advance that matter to discoveries was to produce the relevant reports.

[22] The defendant also submits that as the plaintiff is a named partner at the law firm Camporese Sullivan DiGregario, counsel is a lawyer that practices as part of the plaintiff's firm and is representing his boss in this litigation. The other individuals named in the plaintiff's cost submissions also practice as part of the plaintiff's firm. As Mr. Coons is working for his boss, without proof that the plaintiff is paying counsel or the other individuals listed in the cost submissions, there is no reason to assume that any funds have or will in fact be charged. Even if the costs claimed by the plaintiff were or will be paid, the plaintiff, as a named partner of the firm would likely have a portion of the costs returned back to him. He would be giving with one hand and taking with another. Thus, granting the plaintiff's costs as claimed would thus bestow a windfall on the plaintiff.

[23] With respect, this argument invites speculation and is not grounded in legal authority. The plaintiff, as an individual and lawyer, is not the same entity as his law firm or his counsel. The plaintiff is entitled to representation. Any retainer agreement between the plaintiff and his counsel invokes privileged information, including any agreements respecting the payment of costs.

[24] A rule precluding recovery for costs, in whole or in part, by a plaintiff lawyer who has formally retained counsel from within the same firm would immunize any potential defendant from a costs award associated with the litigation. It would preclude any indemnification for a successful litigant and would make the consideration of the Rule 57.01 criteria moot. These scenarios are inconsistent with the purposes and principles of cost awards.

[25] The defendant's steadfast maintenance of privilege over the impugned records being sought by the plaintiff was the principal cause of the delay in this litigation. At the heart of all of these motions was the production of the surveillance and investigative records. The defendant's position respecting privilege has resulted in the majority of the fees being claimed.

[26] While it is recognized that the nature of the motion invokes somewhat of a novel issue, at the end of the day the plaintiff was entirely successful with respect to the fundamental issue to be litigated. As there is a nexus and causal relation to the earlier November 2018 motion with the plaintiff success in obtaining relief on the substantive issue of production, in my opinion, the plaintiff ought to be paid his costs.

Bill of Costs

[27] It is widely accepted that the appropriate quantum of costs is not determined by multiplying hours by rates. Rather, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. There must be practical and reasonable limits to the amounts awarded for costs and those amounts should bear some proportional connection to the amount that should reasonably have been contemplated. I note that it is not necessary for me to have to go through the hours, or disbursements, line by line, in order to determine what the appropriate costs are. Nor is the court to second-guess the amount of time claimed unless it is clearly excessive or overreaching. [1]

[28] I observe that the substantive motion had a modest degree of complexity. It also engaged a novel point of law that was required to be litigated. It had the potential for significant impact on the entire litigation and cause of action. Plaintiff’s counsel is competent with many years of experience. The plaintiff’s Bill of Costs is entirely reasonable for the nature and scope of this motion.

Conclusion

[29] The costs award should be fair, proportionate and tailored to the circumstances of the case. In the exercise of my discretion under Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the relevant authorities, it is ordered that the defendant pay costs in favour of the plaintiff on a partial indemnity basis fixed at $3,339.82 (all inclusive), payable within 30 days.

Justice A. J. Goodman Date: March 15, 2019

[1] I also note that the hours expended and fees claimed by the defendant for the November 2018 hearing and the motion related to the production of the surveillance report and investigative file are, to a certain extent, excessive.