Court File and Parties

COURT FILE NO.: CV-17-576756 MOTION HEARD: 20200730 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Morris et al., Plaintiffs AND: Khadr, Defendant

BEFORE: Master Abrams

COUNSEL: J.S. Schacter/N. Searles, for the Plaintiffs F. Addario/N.R. Hasan/Z. Al-Khatib, for the Defendant

HEARD: July 30, 2020 (costs of November 8, 2019 motion)

Reasons for Decision

[1] I have now had an opportunity to review and consider the parties’ respective costs submissions. The plaintiffs were wholly successful on the motion decided by me and are entitled to their costs, on a partial indemnity basis.

[2] In considering the award of costs that would here be appropriate, I have had regard to, inter alia: the nature of the motion and the context within which argument before me was made (as set out in paragraphs 4-6 of the plaintiffs’ costs submissions); the amount claimed by the plaintiffs in the action and the costs now sought relative to that amount; the moderate complexity of the motion, with evidence adduced from Retired Lieutenant Colonel, U.S. Army, Mr. Jon S. Jackson, and lawyer, Donald J. Winder (the motion not being, as the defendant’s lawyers submit, devoid of complexity); the defendant’s fulfillment of undertakings, after the motion was brought but before it was argued; the admissions and concessions made by the defendant, narrowing the scope of what needed to be addressed, coupled with the timing of those admissions and concessions; the delineation of tasks within the office of the lawyers for the plaintiffs [with the preparatory work largely having been performed by a law clerk and Mr. Searles, with it being reasonable for Mr. Schacter (the more senior lawyer) to argue the motion, given that Mr. Whitling (as he then was) travelled to Toronto to argue the motion on behalf of the defendant, and with there being some potential for duplication of effort by lawyers with similar hourly rates (and there being no breakdown of who did what, particularly as it relates to the entry in the plaintiffs’ costs outline for the “prepar[ation of] Declaration of Don Win[d]er…witnesses and counsel”)]; the results achieved; and the fact that much of the time spent on behalf of the plaintiffs, in respect of the motion, was time spent arranging for a sworn declaration from Mr. Winder-- responsive to further evidence delivered by the defendant in March of 2019, after the first return date set for the motion. And to all of these considerations, I have applied a prism of fairness, reasonableness and proportionality (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)).

[3] In all, I agree with the defendant that the quantum of costs requested is disproportionately large. That being so, I see fit to apply a discount to the partial indemnity costs sought by the plaintiffs, but a smaller discount than the defendant would have me apply.

[4] I am thus awarding the plaintiffs Mr. Schacter’s appearance fee: $1,566.18; I am reimbursing their full disbursements: $998.84; and, I am awarding them a further $7,500.00 for their lawyers’ preparatory work and the work done addressing costs. The total payable is thus $10,065.02 (inclusive of HST). It is to be paid, to the plaintiffs, by September 30/20.

“Original Signed by Master Abrams”

Date: July 30, 2020