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 Andrea Gonsalves, for the non-party family of the minor child referred to in these proceedings pursuant to the November 28, 2019 Order of Penny J. as Student “Q”
READ: Written costs submissions dated April 21 and 28 and May 4, 2020
Costs Endorsement – Motion Regarding Plaintiffs’ Affidavits Sworn March 13 and March 22, 2020
The Penny Order and My Findings of Breach
[1] On November 28, 2020, Penny J. made an order for the confidential treatment of information that identified or might identify the alleged bully child in this action, who since the making of that order has been referred to in these proceedings as Student Q. Student Q and her family are not parties to this action.
[2] The defendants and the non-party family of Student Q raised concerns about the contents of two affidavits of Mr. Rogerson (sworn March 13, 2020 and March 22, 2020) that included information about Student Q in breach of the Penny Order. The defendants and family of Student Q sought to have these affidavits and their exhibits removed from the court file and/or redacted and sealed to protect the confidentiality of minor children who are or were students at the school (and for other related relief). After reading and hearing the submissions made on behalf of the plaintiffs, the defendants and the family of Student Q at a remote hearing by teleconference on April 3, 2020, I granted the core relief that the defendants and the family of Student Q sought and imposed various terms by an endorsement dated April 14, 2020 (Rogerson v. Havergal, 2020 ONSC 2279).
[3] The Rogerson in-chief affidavit, sworn March 13, 2020, appended as Exhibits “V”, “W”, “Y”, “AA”, “LL”, and “XX” all of the confidential School Records of Mr. Rogerson’s daughter and of Student Q that were produced by the defendants on February 11, 2020. At the time those productions were delivered, counsel for the defendants had advised in a letter dated February 11, 2020 to plaintiffs’ counsel that they intended to seek urgent relief from the court in the event that the plaintiffs disclosed any of the minor plaintiff’s or Student Q’s confidential School Records to anyone other than the plaintiffs’ expert witness, Dr. Peplar. The defendants also advised at that time that they intended to seek an order over the entirety of any of the confidential School Records that might become exhibits at trial.
[4] The Rogerson in-chief affidavit was filed by the plaintiffs in the public court file. I found it to have been filed in breach of the Penny Order. It was also filed without affording the defendants or the family of Student Q the opportunity to first seek the additional confidentiality protections that they had notified the plaintiffs they wished to seek. The interests of the family of Student Q in protecting those records is obvious given what they are comprised of.
[5] I found that the family of Student Q had standing to appear on this motion to make submissions and seek relief in respect of the privacy interests of Student Q. Their status on this motion is derived from the status that they were granted on the motion before Justice Penny and the Penny Order. The family of Student Q did not make or repeat the arguments of the defendants, but rather supported and supplemented them in an entirely appropriate manner. I found that it was important for the court to hear and consider the perspective of the family of Student Q in the determination of this motion.
[6] I found that paragraphs 92 to 95, paragraph 308 of the Rogerson in-chief affidavit, and various instances in the Exhibits appended to that affidavit contained descriptive language that tended to identify Student Q and her family that were not in compliance with the Penny Order. I did not accept the plaintiffs’ attempts to shift the blame for Exhibits sourced from the defendants’ productions that were not compliant with the Penny Order. Each party bears responsibility for ensuring that what they put in the public court file is compliant with any existing court orders and compliant with their own undertakings. I found that the plaintiffs were equally accountable to the family of Student Q as they were to the defendants for anything in the Rogerson in-chief affidavit and exhibits found to be offside the Penny Order.
[7] As well, Student Q’s confidential School Records were appended in their entirety at Exhibits “W” and “LL” to the Rogerson in-chief affidavit and Exhibit “V” included additional school notes about Student Q said to form part of her confidential School Record. Paragraphs 211 through 254, spanning 42 pages of the Rogerson in-chief affidavit were devoted to describing what is contained in these confidential School Records pertaining to Student Q.
[8] For the reasons outlined in this endorsement, I granted the primary relief sought by the defendants’ motion and supported by the family of Student Q. The Rogerson in-chief affidavit was struck and removed from the court file. The Rogerson March 22 affidavit was never filed in the public court file, and the plaintiffs confirmed it would not be without further redactions. The requested relief was granted together with the additional terms and directions to ensure that the spirit and letter of the court’s orders are respected for existing and future public filings that might impact the privacy interests of minor children. These detailed terms included:
a. The names and identities of any minor children and their families shall be anonymized in the existing and any future materials filed in this proceeding. This applies, without limitation, to the names and identities of minor children that appear in paragraphs 257 through 263 and 307 and anywhere else in the Rogerson in-chief affidavit or the Rogerson March 22, 2020 affidavit and appended exhibits. The following protections, which are an extension of those already provided for in the Penny Order for the benefit of Student Q, shall apply:
i. their names and any information that identifies or tends to identify any minor child or their family shall be redacted from any materials filed with the court and replaced by pseudonyms that are distinct from their real names and initials;
ii. there shall be a ban on the publication of the name of any minor child or their family, or any information that would tend to identify them or their families;
iii. any document filed in this proceeding that identifies or would tend to identify any minor child or their family members shall be treated as confidential, sealed and not form part of the public court file;
iv. any document filed in Court and that is subject to the sealing order in subsection (iii), above, will also be filed in Court and in the public record having been appropriately redacted according to subsection (i), above.
b. My April 2, 2020 temporary sealing order of this court file is lifted.
c. The plaintiffs are directed to retrieve from the court file as soon as is reasonably practicable the 3-volume as-filed version of the Rogerson in-chief affidavit that was filed on March 20, 2020 and that I have ordered it to be removed from the court file. In the meantime, I am directing that all hard and electronic copies of the 3-volume Rogerson in-chief affidavit (originally filed in hard copy on March 20, 2020), as well as any copies of the March 22, 2020 Rogerson affidavit that may have found their way into the electronic court file, be sealed until such time as they can be removed from the court file by the plaintiffs.
d. The plaintiffs are directed to serve a new version of the Rogerson in-chief affidavit that is appropriately redacted in accordance with the directions provided in this endorsement (and with any further directions that are provided regarding the confidential School Records of Student Q). Specifically, to redact,
i. Paragraphs 92 to 95 and paragraph 308 of the Rogerson in-chief affidavit that contain descriptive language that tends to identify Student Q and her family and that are not in compliance with the Penny Order.
ii. The as-filed Rogerson in-chief exhibits that contain the fifteen instances of descriptive language that tend to identify Student Q and her family that are not in compliance with the Penny Order, as detailed in the 2-page confidential filing of the defendants pertaining to the exhibits.
iii. Paragraphs 257 through 263 and 307 of the Rogerson in-chief affidavit that contain the names or any descriptive language that tends to identify minor students and/or their families.
iv. The exhibits (“V”, “W”, “Y”, “AA”, “LL”, and “XX”) containing confidential School Records of Student Q and Mr. Rogerson’s daughter should be removed and the paragraphs describing them should be redacted, pending further directions from the court.
e. Other affidavits comprising the plaintiffs’ evidence in-chief shall be redacted in a consistent manner to the redactions that have been ordered in respect of the Rogerson in-chief affidavit.
f. None of the plaintiffs’ affidavits, even in redacted form, comprising their evidence in-chief shall be filed in the court file unless and until they are relevant to some issue that is pending before the court.
g. No party shall file any material in the public court file until at least two weeks after it has been served on the opposing party and any other interested party (in the case of matters involving the privacy of Student Q, counsel for the family of Student Q shall be provided with a courtesy copy of the material when it is served on the opposing party). The following protocol shall be followed upon service of any materials:
i. if, during the intervening two weeks, any objections are raised by the opposing party or any interested party to the materials served, they shall be identified and brought to the attention of the case management judge so that further directions can be provided, and the materials shall not be placed in the public court file pending receipt of those directions;
ii. if no objections are raised, the materials may be filed in the public court file after the two-week waiting period following service has elapsed;
iii. if the unfiled materials are required for a hearing that is scheduled during the two-week waiting period or within two days thereafter, a copy may be directly delivered to the judicial officer who is presiding over that hearing.
h. The plaintiffs are directed to contact every person to whom the Rogerson in-chief affidavit has been provided and:
i. provide them with a copy of this endorsement and any order arising from it;
ii. ask them to return or destroy all hard and electronic copies that they have of it in their possession;
iii. ask them to confirm to plaintiffs’ counsel that they have read and understand this endorsement and order and that they have complied with it.
The plaintiffs were directed to advise the court and the counsel for the defendants and the family of Student Q if any non-party fails to respond or refuses to comply with this order, at which time further consideration will be given by me as to whether the identity of that non-party should be disclosed to the defendants and the family of Student Q.
i. The defendants and/or the family of Student Q may bring a further motion for additional protections in respect of any public filing of the confidential School Records of Student Q and Mr. Rogerson’s daughter if agreement cannot be reached with the plaintiffs about the treatment of those files. The family of Student Q is granted standing to bring or participate on that motion if it is required.
The Parties’ Positions on Costs
The Family of Student Q
[9] The family of Student Q seeks substantial indemnity costs of $17,948.92. Despite not having objected to the standing of the family of Student Q before Penny J., the plaintiffs opposed the standing of the family of Student Q to appear on this motion which, at its heart, was about breaches of the Penny Order that directly affected the interests of Student Q. The family of Student Q was granted standing by me.
[10] The family of Student Q relies on the case of Chuang v. Toyota Canada Inc., 2013 ONSC 3235, at paras. 53-56, as authority for this court’s jurisdiction to award costs to a non-party in appropriate circumstances.
[11] They argue that this is a different situation than existed when they first appeared before Penny J. (at which time, he declined to award them any costs). Now they say they were forced to participate to protect the integrity of a court order put in place to protect their interests with which they reasonably expected the plaintiffs would comply. It was only when a concern was raised that the Penny Order had not been complied with that they felt it necessary to become involved.
[12] Substantial indemnity costs are said to be warranted because of the plaintiffs’ conduct, some of which was canvassed in my April 14, 2020 endorsement (see for example at paras. 84 and 87), including that the plaintiffs:
a. Filed with the court a version of the Rogerson in-chief affidavit that was different than the one that had been served on the defendants (as non-parties, the family of Student Q was not directly served with the Rogerson in-chief affidavit but was made aware that there were concerns about its compliance with the Penny Order);
b. Waited until their response to this motion to acknowledge that they needed to ask the court to grant leave retroactively, nunc pro tunc, for permission to file the further redacted version of the Rogerson in-chief affidavit that was filed on March 20, 2020 because of acknowledged oversights in the disclosure of the names and identifying information about other minor children;
c. Filed the Rogerson in-chief affidavit on March 20, 2020 in the face of objections to it and requests for confirmation that it had not been filed that had been outstanding since March 14, 2020;
d. Refused to advise whether the Rogerson in-chief affidavit had been filed with the court until March 25, 2020 after the court had confirmed that it appeared to have been filed on March 20, 2020;
e. Filed the Rogerson in-chief affidavit and exhibits with the court that they acknowledged to be in breach of the Penny Order and their own counsel’s undertaking, and sought leave to remediate those transgressions on the basis that they were inadvertent;
f. Appeared not to appreciate the full effect of the Penny Order by their failure to acknowledge that other aspects of the Rogerson in-chief affidavit were in violation of it;
g. Included Student Q’s confidential School Records in the exhibits to the Rogerson in-chief affidavit after having been given express notice that the defendants and the family of Student Q intended to seek further protection of those records before they were filed;
h. Refused to advise whether the Rogerson in-chief affidavit has been given to any non-parties other than the plaintiffs’ expert.
[13] The family of Student Q also relies on the decision of Myers J. in Mother Doe v. Havergal, 2020 ONSC 2227, at paras. 84, 87, 91 and 93, in which substantial indemnity costs were awarded to children whose identities were publicly disclosed by plaintiffs’ counsel in court filings. One of the considerations taken into account in the costs decision in that case was that plaintiffs’ counsel (who are also plaintiffs’ counsel in this case) were aware of the Penny Order and proceeded in that case in a manner that breached the spirit of the Penny Order, even though it did not directly apply to the disclosures in that case.
The Havergal Defendants
[14] The Havergal defendants also seek their substantial indemnity costs of this motion (calculated at 80% of their actual costs) in the all-inclusive amount of $59,776.68 (their partial indemnity costs are indicated to be $37,397.60, calculated at 50% of actual costs). They rely upon the same conduct of the plaintiffs as does the family of Student Q (noted above and I will not repeat the list, except to say that the plaintiffs’ course of conduct vis-a-vis the defendants is expanded to include their dealings in respect of the March 22, 2020 Rogerson Affidavit as well, which did not involve matters of concern to the family of Student Q but which did involve delayed responses from the plaintiffs to inquiries about whether that affidavit had been filed and a delayed acknowledgment by the plaintiffs of the need for it to be redacted).
[15] The defendants are particularly concerned about the circumstances under which a version of the Rogerson March 13 in-chief affidavit was filed that was different than the one served upon them. This took place one week after the defendants had already indicated that there were concerns about the affidavit and its compliance with the Penny Order. The defendants raised concerns that it appended the entirety of the confidential School Records of both Mr. Rogerson’s daughter and Student Q that the defendants had given notice back in February (when these records were produced) would be the subject of a request for enhanced confidentiality protection.
[16] The defendants argue that this is an appropriate case for substantial indemnity costs and for the court to signal its disapproval of the plaintiffs’ conduct, the plaintiffs’ breaches of the Penny Order and resulting abuse of the court’s process and undermining of the orderly and efficient case management of this action. See 4361814 Canada Inc. v. Dalcor Inc., Unimac-United, 2015 ONSC 2486, at para. 22, 1269016 Ontario Limited v. David Ellis, Asneth James et al, 2013 ONSC 2185, at paras. 10, 12, 18-19 and 26(b), and Apotex Inc. v. Abbott Laboratories, 2013 ONSC 2958, at para. 17.
[17] The defendants also rely upon the Mother Doe case (at paras. 87 and 95), in which they say substantial indemnity costs were awarded in favour of the minors who were defendants as an expression of the court’s disapproval of the plaintiffs’ disregard for the privacy interests of minor students and “demonstrated flagrant disrespect for the process of the court.” They submit that the plaintiffs’ conduct in this case shows the same disregard for the privacy interests of minor students and flagrant disrespect for the court’s process. The defendants submit an award of substantial indemnity costs should be made in this case to sanction that same conduct.
[18] The defendants observe that the plaintiffs’ persistence in their costs submissions in downplaying the breaches by describing them as a few small errors and unfortunate mistakes and not taking ownership of the breaches is a further reason to award substantial indemnity costs. The suggestion by the plaintiffs that they should be excused for appending the entirety of minor students’ confidential School Records in a court filing that was 750 pages long on the basis that they say that they did so in reliance upon redactions performed by the defendants for production (as opposed to court filing) purposes, and then to say that they did a pretty good job because, out of so many pages of filings, there were only twelve instances of disagreement and a few inadvertent errors, is an example in point.
The Plaintiffs
[19] The plaintiffs do indeed continue to downplay the breaches, maintaining that they made bona fide efforts to comply with the Penny Order. They suggest that this was a simple matter of disagreement about what information could tend to identify Student Q, noting that there were only twelve instances of such disagreement out of the lengthy (approximately 754-page) March 13 Rogerson in-chief affidavit. They also persist in their position that the motion could have been avoided if the defendants had identified earlier what their specific concerns were.
[20] The plaintiffs maintain that they made a bona fide attempt to comply with the Penny Order and that their “inadvertent” failure to do so should be excused because no harm was done.
[21] The plaintiffs argue that awarding costs against them would create a barrier to access to justice because the plaintiff 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. They seek to characterize this as an access to justice issue on the basis of the party with deeper pockets trying to wear down the resistance of the (financially) weaker parties.
[22] In support of this position the plaintiffs rely upon the decision of Perell J. in G.C. v. Ontario (Attorney General), 2014 ONSC 1191, in which the court made no award of costs against an unsuccessful party on a motion to strike, having regard to his personal circumstances. The plaintiffs also point to the cases of Turcotte v. Lewis, 2017 ONSC 4689, at paras. 16-18 and Belvedere v. Brittain Estate, 2009 ONCA 691, at para. 8 in which the court took the unfortunate financial and other circumstances of the unsuccessful party into account in deciding not to award costs against them.
[23] The plaintiffs further argue that the cost demands of both parties are outside of the plaintiffs’ reasonable expectations and that the goals of compensation (or indemnity) for the successful parties’ costs have to be balanced against the goals of access to justice for the plaintiffs in the court’s determination of any award of costs against them.
[24] The plaintiffs submitted a bill of costs for this motion which indicates that their all-inclusive substantial indemnity costs were $41,633.44 and their all-inclusive partial indemnity costs were $27,755.63.
Costs Analysis
Entitlement to Costs
[25] In the normal course of civil proceedings, the unsuccessful party pays costs to the successful party on a motion.
[26] The plaintiffs’ circumstances are not comparable to those of the unsuccessful party in G.C. v. Ontario. In that case, the operative considerations in the court’s decision not to award costs against the unsuccessful litigant were stated to be as follows (at para. 11):
In my opinion, in the case at bar, it is appropriate in exercising the court’s jurisdiction to award costs to take into account the Plaintiff’s personal circumstances including his impecuniousity [sic], the fact that he is receiving social assistance, and his mental health issues that prevent him from securing stable and regular employment. In my opinion, it is also appropriate to take into account that he obtained legal assistance to pursue his claims in a professional manner.
[27] The Turcotte and Belvedere cases similarly both relied upon impecuniosity and/or other extreme and apparent circumstances. There is no evidence of the impecuniosity or of any dire financial or personal health circumstances of the plaintiffs in this case that could support the extraordinary result of no costs being awarded against them, especially in light of the course of conduct that they adopted in relation to the affidavits at issue.
[28] The defendants are entitled to their costs of this motion.
[29] The non-party family of Student Q is also entitled to costs of this motion. There are similarities between their position in this case and the position of the non-parties who were awarded costs in the Chuang case. The issue being decided on this motion was of importance to the family of Student Q, they had a distinct interest to protect (the privacy interests of Student Q that had been recognized as deserving of protection under the Penny Order) and I held that they made valuable contributions to the submissions.
Scale and Quantum of Costs
[30] Rule 77.07(5) requires me to address the issue of costs at the conclusion of each motion in accordance with Rule 57.03. 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. The determination of costs is discretionary under section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. That discretion is generally to be exercised with regard to the factors listed in Rule 57.01 of the Rules of Civil Procedure.
The Family of Student Q
[31] The family of Student Q should have been able to rely on the Penny Order and to expect that it would be respected and adhered to. They were entitled to expect a heightened level of vigilance in any court filings involving materials pertaining to Student Q in light of the Penny Order and the reasons given when it was granted. They also should have been able to reasonably expect that they, or at least the defendants, would have been notified and given the opportunity to seek the additional protections that had been indicated would be sought before any public filing of Student Q’s confidential School Records in any form, even if redacted.
[32] Despite the clearly stated rationale for the Penny Order, which was to protect fundamental privacy rights of a minor child, and despite clear notice of the intention to seek enhanced confidentiality protection before any child’s confidential School Records from the defendants’ productions were tendered as evidence, the plaintiffs indiscriminately appended to an affidavit (and summarized in the body of the affidavit) Student Q’s confidential School Records in their entirety as well as other materials that identify or tend to identify Student Q and/or her family. As the COVID-19 pandemic took hold and the courts were in the process of shutting down, the plaintiffs went ahead and filed these materials in the public court file after being advised that there were concerns about their contents, and then did not respond to inquiries about whether they had been publicly filed for a number of days, ultimately requiring the court to intervene.
[33] It was on the basis of this course of conduct that the court imposed extensive terms, including restrictions on future court filings to allow objections about materials that identify or might tend to identify Student Q or any other minor children or their families and redactions to be made before public filings. The plaintiffs complained about these restrictions but also now say that they fulfill the objectives of deterrence and reprimand that an award of substantial indemnity costs might otherwise be invoked to achieve.
[34] The family of Student Q was forced to participate in this motion because of the plaintiffs’ conduct. That conduct was reprehensible and is deserving of a costs award to reprimand the plaintiffs and to deter future transgressions. The conduct in this case by plaintiffs’ counsel was different than that which was found by Myers J. to be worthy of an award of substantial indemnity costs in Mother Doe, at paras. 84, 87, 91 and 93, but equally deserving of reprimand for the similar consequence of indiscriminate public disclosure of inherently private information about a minor child.
[35] In addition to the plaintiffs’ conduct, other Rule 57.01 factors such as the principle of indemnity, the importance of the issues, and the outcome of the motion have also been factored into the exercise of discretion in my decision to award the family of Student Q their claimed substantial indemnity costs of this motion in the all-inclusive amount of $17,948.92.
The Havergal Defendants
[36] The same course of conduct of the plaintiffs is relied upon by the defendants in support of their request for their substantial indemnity costs of this motion. The same arguments and reasoning apply to the defendants as to the family of Student Q. The implications of the plaintiffs’ conduct and apparent disregard for the court’s process on the orderly and efficient case management of this action lends further support for the defendants’ position. See Dalcor, Ellis, Apotex and Mother Doe.
[37] The plaintiffs have repeatedly argued that this motion would not have been necessary if only the defendants had more quickly reviewed the plaintiffs’ 754-page affidavit and itemized their concerns. The plaintiffs have it backwards. This motion would not have been necessary if the plaintiffs had more carefully reviewed their affidavit and its exhibits to eliminate or reduce what they describe as inadvertent errors, and notified the defendants of their intention to append the confidential School Records of Student Q and afforded the defendants and the family of Student Q the opportunity to seek the additional protections that they had indicated they would be seeking before any public filing was made. This motion also might have been avoided if the plaintiffs had held off in filing the Rogerson in-chief affidavit after being advised that there were concerns.
[38] The plaintiffs’ attempt to characterize this as an access to justice issue is also backwards. It is the plaintiffs’ own conduct that has given rise to these costly interlocutory steps, and now they seek to be relieved of the burden of the consequences of their actions on the basis that their allegedly deep-pocketed opponent is trying to wear them down. The relative depth of their pockets is not the issue in a situation such as this when what the defendants were doing was trying to ensure that the plaintiffs were playing by the rules of the court and exercising common sense and civility in the conduct of this litigation.
[39] The Court of Appeal has emphasized, and Rule 57.01(0.b) 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".
[40] 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. The argument that the plaintiffs did not reasonably expect to face awards of costs against them in the amounts claimed only takes them so far when considered against the plaintiffs own bill of costs on this motion, which indicated their all-inclusive partial indemnity costs to be $27,755.63 and their all-inclusive substantial indemnity costs to be $41,633.44.
[41] In this case, the amounts indicated by the plaintiffs in their bill of costs are lower when compared to the aggregate of the costs claimed from them, but they ought to have reasonably expected that both the defendants and the family of Student Q would have concerns about the material that they filed and I have already found, in granting standing to the family of Student Q, that they each had distinct perspectives on this issue.
[42] 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) that favours the recovery of costs by the successful party. Balancing these two competing factors, and also taking into account the importance of the issue, the outcome of the motion and the conduct of the plaintiffs, I have determined that it is fair and reasonable for the plaintiffs to be ordered to pay costs to the defendants and to the family of Student Q that, in the aggregate, are equivalent to the substantial indemnity costs that the plaintiffs themselves indicated on their bill of costs for this motion, totalling $41,633.44.
[43] Having decided to award the family of Student Q their claimed substantial indemnity costs of $17,948.92, in the exercise of my discretion, I am awarding the defendants their costs of this motion in the amount of $23,684.52. I recognize that this is less than the partial indemnity costs that the defendants have claimed. This award is not intended to be a principled reduction against the defendants’ claimed costs, or an indication that they were not entitled to the higher scale of substantial indemnity costs, but rather a balancing of the costs factors and an attempt to award substantial indemnity costs in the aggregate against the plaintiffs in an amount that they ought reasonably to have expected to pay if they lost, while making the non-party family of Student Q the primary beneficiary of this costs award since they should not have had to become involved in the first place.
[44] This outcome also indirectly gives some effect to the plaintiffs’ argument that the court can and should take judicial notice of the fact that the cumulative effect of the costs awards against them could be challenging for them in these uncertain economic times. The plaintiffs have asked 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 workflow 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 a reduction in the award of costs.
[45] Although the court has been offered no evidence to support the plaintiffs’ contention of financial hardship, 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. The pandemic alone is not a reason to deprive another party of their costs. However, my decision to cap the aggregate costs awards against the plaintiffs at the amount indicated in their own bill of costs has been influenced by the economic factors noted by the plaintiffs that have impacted everyone as a result of the COVID-19 pandemic.
Final Costs Disposition
[46] 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 family of Student Q their substantial indemnity costs of this motion in the all-inclusive amount of $17,948.92. I am awarding the defendants their costs of this motion in the all-inclusive amount of $23,684.52. Having regard to the uncertain economic circumstances due to the COVID-19 pandemic, I am allowing extra time for the payment of these costs awards. Both costs awards are payable by the plaintiffs within 90 days of this endorsement.
[47] Notwithstanding Rule 59.05, this endorsement and resulting orders are effective from the date indicated below and are enforceable without any need for entry and filing. In accordance with Rule 1.04, 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.
Kimmel J. Date: May 21, 2020