Court File and Parties

COURT FILE NO.: CV-19-00631627

DATE: 20210616

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SOPHIA MATHUR, a minor by her litigation guardian Catherine Orlando, ZOE KEARY-MATZNER, a minor by her litigation guardian Anne Keary, SHAELYN HOFFMAN-MENARD, SHELBY GAGNON, ALEXANDRA NEUFELDT, MADISON DYCK and LINDSAY GRAY, Applicants/Respondents to the motion

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Respondent/Moving Party

BEFORE: Justice Carole J. Brown

COUNSEL: Nader R. Hasan, Justin Safayeni, Spencer Bass, Fraser Andrew Thomson for the Applicants

S. Zachary Green and Padraic Ryan for the Respondent

HEARD: July 13, 2020

Costs ENDORSEMENT

[1] The respondents, in this Rule 21 motion to strike brought by the moving party, Her Majesty the Queen in Right of Ontario (“Ontario”), were wholly successful in defending the motion. Ontario’s motion was dismissed in its entirety.

[2] The respondents to the motion seek their partial indemnity costs in the amount of $28,778, plus fees for the one-day appearance for the hearing, HST and disbursements, for a total of $36,269.19. Ontario submits that a maximum of $15,000 would be a reasonable quantum for costs.

[3] Costs generally follow the event. Costs are intended to compensate the successful party or parties to the litigation, wholly or in part, for legal expenses that the party or parties have incurred. In general, costs are awarded on a partial indemnity basis.

[4] Pursuant to the Courts of Justice Act and the Rules of Civil Procedure, this Court has wide discretion in awarding costs: Courts of Justice Act, RSO 1990, c. C. 43, s. 131; Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.01.

[5] Costs must be fair and reasonable and within the expectations of the parties. Boucher v Public Accountants Counsel for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R.(3d) 291 (Ont. C.A.).

[6] As regards the factors set forth at Rule 57.01, to be considered in exercising my discretion to award costs, I make the following comments:

Importance and Complexity: The matter was of significant importance to the parties, collectively, and, as public interest litigation, to the general public also. It raised important constitutional and Charter issues, some of which were novel, and emerging. The numerous issues were of significant complexity. A full day was set aside for the motion and a 55-page decision was rendered.

The principle of indemnity/Experience of Counsel/Rates and hours spent: The four counsel working on this case ranged from a 2007 to a 2018 call. The senior lawyers charged no more than $250/hour, much less than their actual fees. In reviewing the breakdown of fees charged by the various lawyers working on the file, it appears that work was allocated and delegated in a proportional manner, with the bulk of the work being done by the junior lawyers. Given the issues involved, their number, complexity and importance, the amount of time spent in preparation is, in my view, understandable and reasonable.

Expectations and Proportionality: I am of the view, having reviewed the costs of the parties, that the amounts sought by the respondent are fair and reasonable, given the context and complexity of this matter.

[7] I have taken into account all of the relevant factors pursuant to Rule 57.01, and have commented particularly on the foregoing.

[8] I am of the view that the costs sought by the successful respondents to the motion are fair and reasonable, given the context and the complexity of this case, and I award to the respondents their costs on a partial indemnity basis in the amount of $36,269.19, payable by the moving party.

Carole J. Brown J.

Date: June 16, 2021