Court File and Parties

Court File No.: CV-14-203-00 Date: 20190325 Superior Court of Justice - Ontario

Re: WAJAHAT KHAN, Plaintiff And: QUEEN’S UNIVERSITY, Defendant

Before: Mr. Justice Graeme Mew

Counsel: John Ryder-Burbidge for the Plaintiff (Responding Party) Sean Murtha for the Defendant (Moving Party)

Heard: in writing

Costs Endorsement

[1] Queen’s University sought to strike out the plaintiff’s statement of claim without leave to amend.

[2] The principal ground relied upon by Queen’s University was jurisdictional. It argued that the plaintiff had dressed up what should properly have been the subject of an application for judicial review as a claim based in contract and tort.

[3] For reasons reported at 2019 ONSC 720, the motion brought by Queen’s University failed.

[4] The parties have been unable to agree on the issue of costs.

[5] Queen’s argues that, the outcome of the motion notwithstanding, it enjoyed partial success. Reference was made to my observation, at paragraph 40 of my reasons for decision, that “there is merit to the defendant’s protests that the amended statement of claim does not clearly articulate the causes of action asserted by him against the defendant, the alleged breaches of these obligations, and the remedies sought as a result”.

[6] The defendant submits that: a. the parties should bear their own costs for the motion due the court’s recognition that there was significant deficiencies in the plaintiff’s pleading; or b. if costs are to be awarded to the plaintiff, they should be not be fixed at any more than $5,000.00 all inclusive; or c. the issue of costs should be reserved to the trial judge, as he or she will have a complete picture of the ultimate result of the pleadings issue (having regard to the suggestion made in my reasons that the plaintiff should consider cleaning his pleading up).

[7] The amended statement of claim is, indeed, a poor piece of legal draftsmanship. It is verbose and unclear.

[8] But that was not what the motion was about. Rather, the motion was an attempt by Queen’s University to stop the plaintiff’s action dead in its tracks. It failed to do so.

[9] In the circumstances, the plaintiff should be entitled to his reasonable costs of the motion on a partial indemnity basis.

[10] The plaintiff seeks costs on a partial indemnity scale of $9,721.09, inclusive of H.S.T. and disbursements. Of the disbursements, some $1,800.00 relates to the services of an independent research lawyer engaged by the plaintiff’s counsel.

[11] Had Queen’s University succeeded on the motion, its claim for partial indemnity costs would have been $8,584.13.

[12] Notwithstanding this, Queen’s University submits that the costs claimed by the plaintiff are excessive.

[13] The defendant points that, whereas the full indemnity rate of Mr. Ryder-Burbidge, senior counsel for the plaintiff, is listed at $400.00 per hour, he claims a partial indemnity rate of $325.00 per hour. This is said to be at odds with the usual practice of claiming a partial indemnity rate that is 60% of the full indemnity rate.

[14] The defendant also challenges the claim made in respect of the research lawyer. The defendant does not take issue with the principle that the research lawyer’s fees should be recoverable as part of the plaintiff’s costs. Rather, the complaint is that notwithstanding the twelve hours apparently spent on research, the plaintiff’s book of authorities only contained four cases.

[15] The notion that the usefulness of the time spent on research should be measured by the number of cases that are included in a book of authorities is fatuous. It is not helpful to the court to be inundated with cases that are often either not referred to at all during argument or which are best peripheral or repetitive of what other cases say.

[16] Spending twelve hours researching the issue of jurisdiction and judicial review in the cause of defending a motion which, had it been successful, would have extinguished the plaintiff’s claim, does not strike me as unreasonable or disproportionate.

[17] I do, however, agree that the ratio between the partial and full indemnity rates of Mr. Ryder-Burbidge does not reflect the usual practice. Furthermore, although the costs of the research lawyer are characterised as a disbursement and, as such, claimed on a 100% basis, the reality is that the plaintiff’s lawyers have outsourced some of their work to an outside lawyer. Accordingly, the legal accounts of the research lawyer should be indemnified in the same manner as the legal fees of the plaintiff’s retained lawyers.

[18] I would note that although two counsel attended on the plaintiff’s behalf at the hearing of the motion, costs are only claimed for one counsel. That is entirely appropriate in the circumstances.

[19] If one applies a partial indemnity rate for Mr. Ryder-Burbidge of $240/hour (i.e. 60% of his actual rate of $400/hour), the fees attributable to Mr. Ryder-Burbidge are reduced from $6,646.25 to $4,908.00. Similarly, the $150/hour rate charged by the research lawyer, Aaron Hirschorn, should be reduced from $150/hour (actual rate) to $90/hour (partial indemnity rate). The resulting reduction in the legal research account is from $1,800.00 to $1,080.00, plus H.S.T.

[20] After making these adjustments, and applying some very slight rounding, I fix the costs payable by the defendant to the plaintiff in the amount of $6,950.00, inclusive of disbursements and H.S.T.

Graeme Mew J. Date: 25 March 2019