COURT FILE NO.: 49/13
DATE: 20190718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ian Angus and Daphne Angus
Plaintiffs
– and –
The Corporation of the Municipality of Port Hope
Defendant
M. John Ewart, for the Plaintiffs
Kristin Muszynski, for the Defendant
IN WRITING: Final Submissions Received: July 15, 2019
Woodley J.
COSTS ENDORSEMENT
[1] The Defendant brought a motion for partial summary judgment to determine all remaining outstanding issues in this action. The motion was the third and final motion for summary judgment determined by me in this action. For reasons delivered on April 25, 2019, as Angus v. Port Hope 2019 ONSC 2596, I held as follows:
i. The Defendant’s motion for summary judgment is granted;
ii. All remaining claims of the Plaintiffs as against the Defendant Port Hope be and are hereby dismissed; and
iii. If the parties are unable to agree upon costs, the Defendant shall have 45 days from the date herein to file costs submissions. The Plaintiffs shall have 65 days from the date herein to respond. The Defendant’s reply, if any, shall have 90 days from the date herein to serve and file any reply. The cost submissions, response, and reply shall not exceed three pages in length – and shall attach bills of costs. The parties shall be entitled to vary the time periods relating to the filing of costs submissions on consent and shall inform the court in writing of any amendments to the timing of the submissions.
[2] Not surprisingly the parties cannot agree on costs and have filed written submissions in this regard.
[3] The Defendant seeks costs on a substantial indemnity basis for defending the action generally and costs of the subject motion, including costs associated with defending the Plaintiffs’ last summary judgment motion which was not argued but rendered moot as a result of my dismissal of the action.
[4] The Defendant submits that costs are warranted on a substantial indemnity basis given the nature of the “unsubstantiated allegations against Port Hope, including against the solicitor for Port Hope, Jennifer Savini”. The allegations made by the Plaintiffs which were dismissed by me related to allegations of malicious prosecution and misfeasance/abuse of public office with corresponding damages sought on a punitive and/or aggravated basis.
[5] The Plaintiffs argue that costs should be as the Court deems just in accordance with the principles set out in Rule 57.01(1) and the principles of proportionality. In considering the principles set out by Rule 57.01(1) and proportionality the Plaintiffs submits that:
[1] The issues raised were of public interest not only to the parties but to the broader community;
[2] The proceeding was very significant to the Plaintiffs who were forced to halt remediation and rehabilitation as a result of the “improper” demands by the Defendant;
[3] The Plaintiffs did not engage in steps sought to lengthen the duration of the proceedings but sought to resolve the matter in a most proportionate, timely and costs effective approach in the public interest.
[6] The Defendant submits that the Plaintiffs’ submissions relate to a previous motion for summary judgment which has already been determined by me. In any event the Defendant claims that the Plaintiffs are not public interest litigants.
[7] The Defendants claim that the allegations of the Plaintiffs impugn the professional integrity of the Defendant and its’ employees. As such the Defendant submits that costs on a substantial indemnity basis are appropriate. The Defendant seeks costs fixed at $73,048.84 inclusive of disbursements and advise their actual costs are $83,448.06 with partial indemnity costs of $50,260.24.
[8] The Plaintiffs claim that the costs are excessive and submit their own bill of costs which cites senior counsel’s fees on a complete indemnity basis in the amount of $75,952.10.
Costs Ruling
[9] I reject the Plaintiffs’ submission that they were public interest litigants on this motion. Aside from the ultra vires motion which was determined with costs in the Plaintiffs’ favour – all remaining issues revolved around the Plaintiffs’ personal interests and personal allegations made against the Defendant and its’ employees.
[10] I reject the Defendant’s submission that the Plaintiffs sought to lengthen the proceedings. The proceedings were complex and involved complicated legal principles. The entire action was heard by me in stages through motions for partial summary judgment which (presumably) shortened the proceedings and allowed for an expeditious determination of the matters.
[11] I accept the Defendant’s submission that as they have been successful in their summary judgment claim they are presumptively entitled to their costs and it is appropriate to award costs for both the summary judgment motion and the defence of the action. However, I do not accept that costs are due to respond to a motion that was not heard by the Court.
[12] I also accept the Defendant’s submissions that as per Justice Quinlan in Watton v. Home Depot of Canada Inc., 2018 ONSC 2094 that unsubstantiated claim of malicious prosecution that impugn professional integrity warrant costs of the motion and of the action on a substantial indemnity scale.
[13] However, as noted by Justice Quinlan, the Court remains required to determine what is fair and reasonable regardless of the scale of damages awarded.
[14] In this case, the highest billing rate for a lawyer was for Mr. DeMille called in 1981 with a rate $300 per hour. Otherwise, the work was handled primarily by Ms. Muszynski and Ms. Savini whose rates are $275 per hour.
[15] It was Ms. Muszynski for the Defendant together with Mr. Ewart for the Plaintiffs who appeared to argue all motions before me. Mr. Ewart was called in 1990 and is a specialist in municipal and planning law with a rate of $350 per hour. I can say without hesitation that both Ms. Muszynski and Mr. Ewart were incredibly prepared, professional and skilled at their craft. I find the billing rates charged by all counsel involved to be quite reasonable. As for the remainder of the Defendant’s costs, I note that the Defendant utilized the services of law clerks and junior counsel, significantly minimizing costs incurred both with respect to the defence of the action and the motion.
[16] I find the amount of time spent is reasonable (subject to deletion of the motion not argued before me and some other minor adjustments), as are the disbursements.
[17] Pursuant to Watton, Rule 57.01(1) and the principles of proportionality, I find that the Defendant is entitled to costs on a substantial indemnity basis for the (third) summary judgment motion and the defence of the action (not already awarded) subject to a reduction for the motion not argued before me and some other minor adjustments relating to proportionality and duplication.
[18] Having reviewed and considered the matter, I hereby award the Defendant costs fixed at $65,000.00, inclusive of HST and disbursements, payable by the Plaintiffs within 45 days of the date herein.
Madam Justice S. J. Woodley
Date: July 18, 2019
COURT FILE NO.: 49/13
DATE: 20190718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ian Angus and Daphne Angus
-and-
The Corporation of the Municipality of Port Hope
COURT FILE NO.: 49/13
COSTS RULING
Woodley, J.
Released: July 18, 2019