Court File and Parties

Court File No.: FS-18-2842-0000 Date: 2021-02-10 Superior Court of Justice - Ontario

Re: A.P. And: L.K. And: Medical Officer of Health (City of Toronto)

Before: J.T. Akbarali J.

Counsel: Caroline Kim and Kaitlin Jagersky, for the Appellant Gary Joseph and Stephen Kirby, for the Respondent

Heard: In writing

Publication Ban

A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, prohibiting the publication of:

a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials;

b) any evidence or information about the children’s health except for the fact that they are unvaccinated;

c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.

Endorsement

[1] On January 7, 2021, I released reasons in which I allowed the appellant father’s appeal from the decision of an arbitrator who found it was not in the best interests of the parties’ children to become vaccinated: 2021 ONSC 150. I found that the arbitrator made errors in qualifying the respondent mother’s proposed expert witnesses, in failing to admit certain public documents regarding vaccination for proof of the truth of their contents, and in making palpable and overriding errors of fact in concluding that it was in the children’s best interests to remain unvaccinated. I ordered that the appellant father shall have sole final responsibility to make vaccination-related decisions for the children.

[2] This endorsement deals with the costs of my decision, and the costs of the underlying arbitration. At first instance, the arbitrator awarded costs of $34,833.66 to the respondent, who was successful on the arbitration.

[3] The appellant argues that he is the successful party because I ordered the relief he sought. He seeks costs of the appeal and the arbitration, noting the general principle that, when an appeal is allowed, the order for costs at trial is set aside, and the costs at trial and on appeal are awarded to the successful appellant: Kopij v. Metropolitan Toronto (Municipality), 1999 CarswellOnt 270, [1999] O.J. No. 239, (C.A.) at para. 2.

[4] The appellant was self-represented at the arbitration, but consulted counsel who assisted him. He incurred some fees at the outset of the appeal, but subsequently retained appeal counsel who worked pro bono throughout the duration of the appeal.

[5] The respondent accepts that costs awards can be made in favour of pro bono counsel in appropriate cases, given that costs awards serve multiple purposes, apart from indemnifying the successful party. In 1465778 Ontario Inc. v. 1122077 Ontario Ltd., at paras. 34-35, the court held:

…in the current costs regime, there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases. Although the original concept of acting on a pro bono basis meant that the lawyer was volunteering his or her time with no expectation of any reimbursement, the law now recognizes that costs awards may serve purposes other than indemnity. To be clear, it is neither inappropriate, nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act pro bono to receive some reimbursement for their services from the losing party in the litigation.

To the contrary, allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the system without fear of the sanction of an award of costs; and (2) it promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. Because the potential merit of the case will already factor into whether a lawyer agrees to act pro bono, there is no anticipation that the potential for costs awards will cause lawyers to agree to act only in cases where they anticipate a costs award.

[6] The appellant’s bill of costs reflects that the full recovery value of his costs related to the appeal, inclusive of HST and disbursements, and exclusive of costs for steps in which costs have already been addressed in previous endorsements, is $225,724.43. He argues that he has beaten an offer to settle which meets the conditions of r. 18(14) of the Family Law Rules, O. Reg. 114/99. He thus argues that he is entitled to his partial recovery costs up to December 19, 2019, the date of his offer, and his full recovery costs thereafter. He calculates this amount at $192,782.33, inclusive of HST and disbursements. He also seeks costs of the arbitration in the amount of $23,039.06, inclusive of disbursements, based on the costs of the counsel who assisted him with the arbitration.

[7] The respondent argues that this is an appropriate case for the parties to bear their own costs, because this case involved a matter of general public importance, such that different considerations may apply when deciding whether to award costs in favour of the party whose counsel acted pro bono. She also argues that she acted in good faith, motivated by the best interests of the children, justifying a no-costs award: Basley v. Basley, 2017 ONSC 886 (ON SC), at paras. 9-11.

[8] She argues that the appellant’s costs are grossly disproportionate, and outside her reasonable expectations, when her own costs of the appeal (including the fresh evidence motion) were about $72,000 inclusive of HST. The respondent also argues that the appellant did not beat his offer and, in any event, offers should be of less importance in a single-issue, all-or-nothing case like this one. She also argues that the court should consider that the appellant raised $14,000 through a GoFundMe page which he launched in breach of the confidentiality provisions of the parties’ mediation/arbitration agreement when assessing costs.

[9] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, [2005] O.J. No. 4345. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.

[10] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[11] Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. Under r. 24(12), in setting the quantum of costs, the court must consider the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of each party’s behaviour, the lawyers’ rates, the time spent on the case, expenses properly paid or payable, any written offers to settle, including those that do not meet the requirements of r. 18, and any other relevant matter.

[12] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, para. 13.

[13] The appellant is the successful party. He is presumptively entitled to his costs of the appeal, and the arbitration. While I accept that this case raised issues of public interest, it did not raise novel points of law, and I do not accept the respondent’s argument that this factor justifies an award of no costs.

[14] Moreover, while I accept that both parties were motivated by their sincere beliefs about what is best for their children, in my view, that motivation is not a basis to depart from the general presumption that a successful party is entitled to their costs. The presumption that a successful party is entitled to costs is found in the Family Law Rules, and it applies to matters of decision-making for children as much as it applies to requests for financial relief. If good intentions were enough to displace the presumption, the presumption would have no meaning, at least in child-related matters. Almost all parents who come to court over child-related decision-making disagreements love their children and believe their proposal is in their children’s best interest. As Pazaratz J. held in Tomlinson v. Hornick, [2008] O.J. No. 1193 (Sup. Ct.), “some good reason should exist to rebut the presumption in favour of the successful party.” In my view, good intentions do not amount to a good reason.

[15] There is thus no basis to depart from the general rule that the appellant is presumptively entitled to costs. The question is on what scale, and what amount is fair and reasonable, having regard to the purposes of costs awards.

[16] I accept the respondent’s argument that the appellant did not beat his offer to settle. While in one sense, the appellant did better than his offer, in that it provided for him to have sole decision-making authority regarding vaccinations for only the parties’ younger child, while I granted the appellant sole decision-making authority for vaccination-related matters for both children, the offer also required the respondent to advise the younger child that they would be vaccinated and to positively encourage vaccination. My order only went so far as to preclude the respondent from discouraging vaccination to the children. In my view, this is not a small matter; the appellant’s offer required the respondent to encourage vaccination to the younger child in direct contrast to her beliefs. I conclude that the terms of the offer were not beaten.

[17] Nor do I find that the respondent behaved unreasonably in her conduct in the appeal. She also made an offer to settle, under which she would have left the vaccination decision to the children once they were capable of making it, and waived her entitlement the costs ordered by the arbitrator. The vaccination part of the offer was not much of an offer, in that once the children have decision-making capacity, their ability to choose vaccination would have been out of the respondent’s control in any event, but her proposal to waive costs of the arbitration suggests that she was making a good faith effort to settle.

[18] I do not find that the respondent’s failure to accept the appellant’s offer was unreasonable. She was the successful party at arbitration, and the appeal involved a single, all-or-nothing issue. Nor do I find that her insistence on a viva voce examination of the appellant’s experts was unreasonable. She was entitled to cross-examination in the circumstances of this appeal. Finally, I reject the argument that the respondent’s recusal motion indicates unreasonable behaviour demanding an elevated scale of costs. I dealt with costs of that motion already, and it should have no impact on the scale of costs for the appeal.

[19] Given these findings, the most important purpose of a costs award that can be advanced here is to ensure that this case is dealt with justly, which, in my view, includes promoting access to justice by allowing pro bono counsel some recovery. A costs award will also provide some measure for indemnity to the appellant, who did incur some costs in the arbitration and at the outset of the appeal. It will also underscore that litigants in cases where the opposing party is represented pro bono are not immune from normal costs consequences.

[20] Accordingly, I conclude that costs on a partial indemnity scale are appropriate. With respect to determining the appropriate quantum of those costs, I note the following:

a. The appellant claims total costs of the appeal of $197,334.17, including HST, and disbursements of $3,950.57. Partial indemnity costs would be in the range of $130,000 plus disbursements.

b. The appellant claims total costs of the arbitration in the amount of $23,383.14., inclusive of disbursements, though these are not broken out. Partial indemnity costs would be in the range of $15,500.

c. In contrast, the respondent’s full indemnity costs of the appeal are about $78,000, with minimal disbursements charged by her current counsel, but not including disbursements she paid her former counsel, for which no information was provided.

d. The respondent was awarded costs of the arbitration of $34,833.66.

e. This suggests that the appellant’s costs of the arbitration would have been within the respondent’s reasonable expectations, in that they were lower than hers, reflecting the fact that he was self-represented at the hearing, but was obtaining limited assistance from counsel. However, the bill of costs from the arbitration is not detailed, and it does not allow me to evaluate the reasonableness of the fees incurred.

f. The arbitration took place over three days, and included six witnesses.

g. The appellant’s appeal costs are significantly higher than the respondent’s, suggesting that the costs claimed are outside her reasonable expectations.

h. The appeal raised many issues, some of which were quite complex, and included issues of public interest.

i. The appellant raised some funds for the appeal through a GoFundMe account.

j. Neither party behaved unreasonably in the appeal.

k. One would expect the appellant’s fees to be a bit higher than the respondent’s, because the appellant is responsible for putting together the appeal record, and also, in this appeal, the fresh evidence which was admitted.

l. However, even allowing for the additional responsibilities on the appellant, the time spent by the appellant’s counsel is excessive. Although the appellant argues that sometimes the successful party is successful precisely because their lawyer put more work into the file, this is not such a case. Both parties were ably represented by counsel. The appellant’s bill of costs discloses many timekeepers, while the respondent’s bill discloses senior and junior counsel, and two law clerks. This suggests to me that there is some duplication in the work done by appellant’s counsel.

m. All timekeepers seem to have billed reasonable hourly rates given their experience.

[21] Taking these factors into consideration, I conclude that the costs of the arbitration in the amount of $12,000 are fair and reasonable. I find that costs of the appeal in the amount of $40,000 are fair and reasonable. Thus, the respondent shall pay the appellant costs of $52,000 all-inclusive for costs of the appeal and the arbitration, within thirty days.

J.T. Akbarali J. Date: February 10, 2021.