Court File and Parties

Court File No.: CV-18-591719CP Date: 2020/06/29 Ontario Superior Court of Justice

Between: Conrey Francis, Plaintiff – and – Her Majesty the Queen in Right of Ontario, Defendant

Counsel: James Sayce, for the Plaintiff Victoria Yankou and Alexandra Clark, for the Defendant

Proceeding under the Class Proceedings Act, 1992

Heard: In writing

Perell, J.

Reasons for Decision - Costs

[1] This is a costs endorsement following a summary judgment motion in this certified class action under the Class Proceedings Act, 1992 [1]. The Class Members were prisoners in correctional institutions of the Defendant Her Majesty the Queen in Right of Ontario (the Crown”). The Class Members alleged that they were and are the victims of negligence and contraventions of the Canadian Charter of Rights and Freedoms [2]. The Plaintiff, Conrey Francis, was successful on the summary judgment motion. Francis v. Ontario, 2020 ONSC 1644 [3] He seeks a partial indemnity award of $782,629.10 for costs and disbursements, inclusive of taxes. This award is comprised of $601,395.83 in fees and $181,233.27 in disbursements, both inclusive of taxes.

[2] The Crown submits that Mr. Francis’ claim for costs and disbursements should be reduced. Ontario submits that the Plaintiff should be entitled to $617,394.92 for fees and disbursements, exclusive of taxes. By way of specifics, the Crown submits that a deduction of $46,732.20 for fees is warranted and it submits that a deduction of $28,493.78 is warranted for disbursements. I am not able to make an apples to apples comparison because Mr. Francis’ submissions are made inclusive of taxes and the Crown’s submissions are exclusive of taxes.

[3] For the reasons set out in the Crown’s written costs submissions, I agree that there should be a deduction of $28,493.78 for the disbursements.

[4] With respect to the fees, I agree with some but not all of the Crown’s submissions that the fees should be reduced. For example, I agree that there should be no costs associated with the venue motion decided by Justice Morawetz. For another example, I do not agree that there should be a reduction for divided success because the Crown was successful on some issues that reduced its liability.

[5] For present purposes, I need not go further and comment about the Crown’s arguments about the significance, if any, of the assessment of partial indemnity rates with reference to the Costs Bulletin or about its other arguments.

[6] In the immediate case the parties are actually not that far apart and the immediate case can be resolved by the critical controlling principle that in awarding costs, the sum awarded should reflect the fair and reasonable expectations of the unsuccessful litigant. [4] The overriding principle in awarding costs is reasonableness. [5]

[7] The court's discretion in awarding costs arises under the authority of s. 31(1) of the Courts of Justice Act [6], and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure [7]. These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.

[8] The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. In some cases, it may be reasonable for the successful party to make exhaustive efforts and to commit enormous legal resources, and in those cases, it might be said that the unsuccessful party could reasonably expect to pay those costs. In other cases, however, the successful party may have been well served by giving his or her lawyer instructions to make exhaustive efforts, but it might be disproportionate and unreasonable to expect the unsuccessful party to pay those costs, even if he or she would have expected or anticipated that his or her foe would have marshalled those legal resources. [8]

[9] In the circumstances of the immediate case, in my opinion, having regard to the various criteria under rule 57.01, the appropriate award is $720,000, all inclusive.

[10] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

[11] The parties may and should submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.

Perell, J.

Released: June 29, 2020

Footnotes

[1] S.O. 1992, c. 6. [2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [3] Francis v. Ontario, 2020 ONSC 1644. [4] Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 at para. 24; Stellarbridge Management Inc. v. Magna International (Canada) Inc., [2004] O.J. No. 2102 at para. 97; Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 at para. 4; McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 74 O.R. (3d) 728 at paras. 23-25. Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.). [5] Davies v. Clarington (Municipality) (2009), 100 O.R. (3d) 66, 2009 ONCA 722 at para. 52 (C.A.). [6] R.S.O. 1990, c. C-43. [7] R.R.O. 1990, Reg. 194. [8] Das v. George Weston Limited, 2017 ONSC 5583 at para. 65, var’d 2018 ONCA 1053.