Court File and Parties
COURT FILE NO.: CV-19-629398 DATE: 2020-05-21 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDREW ROGERSON et al, Plaintiffs AND: HAVERGAL COLLEGE et al, Defendants
BEFORE: Kimmel J.
COUNSEL: Angela Salvatore, for the Plaintiffs Linda Rothstein and Ren Bucholz, for the Defendants
READ: Written submissions on costs dated April 7, 14 and 17, 2020
Costs Endorsement - Motion for Recusal (Heard and Decided April 2, 2020 with Reasons Released April 8, 2020)
The Recusal Motion
[1] In a brief oral ruling delivered to the parties on the afternoon of April 2, 2020, I dismissed the plaintiffs’ motion asking me to recuse myself from continuing to case manage this action. I released subsequent written reasons on April 8, 2020 (Rogerson v. Havergal, 2020 ONSC 2164). Since then, I have continued as case management judge consistent with the assignment made by the RSJ.
[2] The plaintiffs asked me to recuse myself from case managing this matter because they said:
a. My objectivity and impartiality had been inherently compromised by what the plaintiff Mr. Rogerson interpreted as an allegation that he was a racist, said to have been made by one of the lawyers for the defendants; and
b. I had displayed a pattern of behaviour exhibiting actual or perceived bias for several months, including displaying annoyance with the plaintiffs and plaintiffs’ counsel, making orders beyond my jurisdiction in favour of the defendants and non-parties, adopting an investigative role in the proceedings, and behaving in other respects in a manner that an objective person reasonably directing himself or herself would conclude that I was biased against the plaintiffs and am acting as an advocate for the defendants and the non-party.
[3] The plaintiffs argued that there existed in this case both: (i) perceived bias (either conscious or unconscious, having regard to what a reasonable person properly informed would apprehend); and (ii) actual bias.
[4] After considering all of the submissions, I concluded that there was no air of reality to the plaintiffs’ claim that I had exhibited bias, actual or perceived. I found that no right-minded person who was reasonably informed of the relevant facts would conclude that I had conducted myself in a manner that raised a real or perceived apprehension of bias or lack of objectivity towards the plaintiffs. The plaintiffs’ allegations were based on speculation and innuendo and were not objectively reasonable interpretations of the interactions and outcomes that they complained about.
[5] I also concluded that a right-minded person reasonably informed of the relevant facts would not conclude, as Mr. Rogerson did, that a judge of the Ontario Superior Court of Justice such as myself would immediately become biased against the plaintiffs because of a submission of counsel in a factum filed on a motion before me. Rather, a reasonably informed person with an understanding of the court process would understand that litigants routinely make submissions in which they accuse each other of unpleasant things, and it is the judge’s role to sort out what is overstated and what is not.
The Parties’ Positions on Costs
[6] The defendants seek their substantial, or alternatively partial, indemnity costs of this motion in the all-inclusive amounts of $17,764.45 or $11,842.95 respectively. They consider their opposition to the recusal motion to have been necessary. They say that this necessity was not only because of a general interest in the case and the administration of justice as party litigants, but also because of the implications the recusal request would have had on the case management process in this case. I was the second case management judge that the plaintiffs had sought the recusal of in the span of four months (the first recusal request did not proceed after I became involved). This has been a case requiring heavy case management. The defendants also rely upon the fact that this request was made at the eleventh hour just before a motion that they had brought which was scheduled to be heard on April 1, 2020. Not only was that motion delayed so that this one could be heard, but this motion had to be briefed on a very short turn-around.
[7] The plaintiffs argue that there should be no costs or that the costs of this motion should be payable in the cause. As justification for this, they contend that it was “unseemly” for the defendants to have taken a position on this motion and fight so hard to retain the judge who was favouring the defendants. The plaintiffs also argue that there was no need for the defendants to participate on the motion because it was purely a matter between the plaintiffs and the court.
[8] The plaintiffs also submit that the amount of costs claimed by the defendants is excessive based on the nature of the issues and the number of lawyers involved. The plaintiffs’ bill of costs indicated their partial indemnity costs of this motion to be $13,136.25 and their substantial indemnity costs to be $19,704.38. Notably, in both instances, the plaintiffs’ costs are higher than the corresponding amounts claimed by the defendants. The plaintiffs justify this on the basis that they had the burden on this motion.
[9] The plaintiffs argue that awarding costs against them would create a barrier to their access to justice because Mr. Rogerson is a self-employed lawyer with expensive office overhead in downtown Toronto whose business and cash flow may be affected by the COVID-19 pandemic. The plaintiffs have not tendered any evidence of their financial circumstances, nor have they made or supported a claim of impecuniosity in defence of the request for costs to be fixed and ordered payable by them.
[10] The plaintiffs make further submissions of perceived bias, based on new evidence (dating back fifteen years) that was not filed on the motion. It is unclear how this purported new evidence of actual or perceived bias should factor into the costs decision. I do not consider it to be properly before the court or relevant.
Costs Analysis
Defendants’ Entitlement to Costs
[11] The defendants had a right to participate in the motion that sought my recusal as the case management judge. I had been actively case managing this case for a number of months and was appointed as the case management judge on the consent of all parties.
[12] The plaintiffs brought the recusal motion on very short notice, in the face of the defendants’ pending motion dealing with concerns about public filings that the plaintiffs had made (that I subsequently found to have been in breach of an earlier anonymization and sealing order of Penny J. in this matter). The recusal motion was brought after the plaintiffs had expressed displeasure with some of my recent case management directions/orders. I will not go so far as to make a finding that the plaintiffs’ motion was strategic. However, those circumstances and the defendants’ interest in there being an efficient and expeditious determination of the merits of the claims against them in a case that has clearly been demonstrated to require case management entirely justifies the defendants’ participation in this motion.
[13] I consider the defendants’ participation in this motion to have been both necessary and appropriate. There is nothing unseemly about a litigant who opposes the removal of an appointed case management judge providing their perspective and assistance to the court with respect to the relevant facts and applicable legal principles.
[14] The plaintiffs ask the court to, in effect, take judicial notice of the fact that Mr. Rogerson is self-employed, has expensive office overhead in downtown Toronto in addition to his primary office located outside of Toronto and that his work flow and cash flow are being negatively impacted by the COVID-19 pandemic. This, the plaintiffs contend, is an access to justice consideration that would warrant an award of no costs (or a reduction in the costs awarded).
[15] The court has been offered no evidence to support this contention. I am prepared to accept, as a matter of judicial notice, that Mr. Rogerson’s workflow and cash flow may be diminished as a result of the COVID-19 pandemic. However, the pandemic alone will not prevent costs award in the ordinary course of a proceeding. The economic factors noted by the plaintiffs that have impacted virtually everyone as a result of the COVID-19 pandemic are not a reason, in and of themselves, to deprive the defendants of any costs of this motion. More evidence of the pandemic’s impact on Mr. Rogerson and on Mr. Rogerson’s impecuniosity would be necessary to ground such a claim.
[16] In the normal course of civil proceedings, the unsuccessful party pays costs to the successful party on a motion, including a motion for recusal of the judicial officer. See 4361814 Canada Inc. v. Dalcor Inc., Unimac-United, 2015 ONSC 2486, at para. 17. The defendants are entitled to their costs of this motion.
Scale and Quantum of Costs
[17] Rule 77.07(5) requires me to address the issue of costs at the conclusion of each motion in accordance with Rule 57.03 of the Rules of Civil Procedure. Rule 57.03, in turn, requires me to fix the costs of this motion and order them paid within 30 days unless I am persuaded that a different order would be more just.
[18] The defendants point to the nature, extent and number of unsubstantiated allegations of actual and perceived bias that the plaintiffs have made against two judicial officers in these proceedings. Acknowledging that substantial indemnity costs are typically reserved for cases in which the conduct of the litigant is deserving of reprimand or deterrence, the defendants rely on Dalcor at paras. 27, 29 and 37 in arguing that “reckless attacks on the integrity of judicial officers must be recognized as conduct requiring chastisement and deterrence.”
[19] The allegations of bias were unsubstantiated in this case. They were found to have been predicated on speculation and innuendo. The plaintiffs attempted to draw attention to irrelevant considerations that might have been intended to intimidate and embarrass me. However, this is not about me but rather about the administration of justice. I am not going to make an award of substantial indemnity costs of this motion as a means of retribution against a litigant who has made unfounded allegations about me. As Justice Myers said in Aganeh v. Aganeh, 2017 ONSC 6386, at para. 29:
The making of serious allegations against the court is different than making them against the opposite party. Making of serious allegations against the opposite party and failing to prove them normally leads to an enhanced costs award to vindicate the innocent party and to compensate for damage done. The court does not need to engage in vindication and a costs award to a party does not compensate for any damage done.
[20] The type of allegations made by the plaintiffs in this case may be deserving of reprimand or deterrence, but I am not going to exercise my discretion on this motion to award substantial indemnity costs in favour of the defendants to achieve that. I have taken into consideration as another relevant consideration in my decision not to award substantial indemnity costs the financial circumstances of the plaintiffs. While these unsubstantiated financial considerations are not a justification for an award of no costs, they have been factored into the exercise of my discretion regarding the amount of costs that the plaintiffs will be ordered to pay.
[21] The Court of Appeal has emphasized, and Rule 57.01(0.b) of the Rules of Civil Procedure now recognizes, that one of the overarching considerations in the court’s exercise of its discretion regarding an award of costs is the importance of fixing costs in an amount that the unsuccessful party could reasonably expect to pay in the particular proceeding. This is consistent with jurisprudence from the Court of Appeal that costs awards must be reasonable: see Davies v. Clarington (Municipality) et al., 2009 ONCA 722, at para. 52. See also Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice".
[22] One of the useful benchmarks of what a fair and reasonable amount for the unsuccessful party to pay is what they have indicated their corresponding costs to be in their bill of costs. In this case, the amounts indicated by the plaintiffs in their bill of costs are higher than what the defendants are seeking, for the claimed amounts of both their partial and substantial indemnity costs.
[23] The fairness of the costs award against the unsuccessful party has to be balanced with the principle of indemnity under Rule 57.01(0.a) of the Rules of Civil Procedure that favours the recovery of some costs by the successful party based on the experience of their counsel, the rates charged, and the hours spent. While the plaintiffs complain about the number of lawyers who were working on this matter for the defendants, that is not the most relevant consideration. What is more relevant is the number of lawyer-hours spent and the distribution of the work between senior and junior counsel.
[24] I find that there was a reasonable distribution of work between junior and senior counsel on the defence team. The total hours spent by both defence team lawyers in the aggregate and Ms. Salvatore for the plaintiffs was approximately the same. Even though the plaintiffs had the onus on this motion, the nature of the allegations required both a fact-intensive and law-based response from the defendants. While it might not have been necessary under normal circumstances for all three lawyers on the defence team to participate in the hearing of the recusal motion, I do not consider their participation to have been unreasonable in this case where they had a short time to prepare their response and each had to participate from a remote location due to the COVID-19 pandemic.
[25] I find that the plaintiffs as the unsuccessful parties in this case could and should have reasonably expected that they would have to pay an amount of costs roughly equal to the amount that they expended on the recusal motion, proportionately reduced to the applicable scale.
[26] Further, it would not be consistent with the other factors under Rule 57.01 of the Rules of Civil Procedure, such as the principle of indemnity (0.a), the importance of the issue and its impact on the orderly case management of this case (d), and the timing of this motion and nature of the allegations raised (e and f), for me to reduce the defendants’ partial indemnity costs (as the plaintiffs ask the court to do) on the basis of a plea by the plaintiffs for relief from the burden of having to pay costs in these uncertain economic times, for which they offer no evidentiary foundation.
[27] The plaintiffs should be held responsible for the costs of unsuccessful positions that they take. That is one of the objectives of the “loser pays” costs rules under which we operate. The plaintiffs have not given me any reason to deviate from that norm in this case. The defendants are entitled to their claimed partial indemnity costs for the recusal motion.
Decision Regarding Costs
[28] In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 57 of the Rules of Civil Procedure, I am awarding the defendants their partial indemnity costs of the recusal motion fixed in the all-inclusive amount of $11,842.95. Having regard to the uncertain economic circumstances due to the COVID-19 pandemic, I am allowing extra time for the payment of this costs award. It is payable by the plaintiffs within 90 days of this endorsement.
[29] Notwithstanding Rule 59.05 of the Rules of Civil Procedure, this endorsement and resulting order are effective from the date indicated below and are enforceable without any need for entry and filing. In accordance with Rule 1.04 of the Rules of Civil Procedure, no formal order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this endorsement may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.