Court File and Parties
COURT FILE NO.: CV-20-652216-0000
DATE: 20210713
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen in Right of Ontario
AND:
Adamson Barbecue Limited and William Adamson Skelly
BEFORE: J.T. Akbarali J.
COUNSEL: S. Zachary Green and Padraic Ryan, for the Applicant
Michael Swinwood and Liza Swale, for the Respondents
HEARD: In writing
ENDORSEMENT
[1] On June 28, 2021, I dismissed the respondent’s motion for Charter damages on the basis that I had no jurisdiction to hear it because the respondent never issued an originating process, nor provided appropriate notice of the relief it was seeking: 2021 ONSC 4660.
[2] The applicant seeks costs of $15,000 for the hearing on June 28, 2021. The applicant also seeks $15,000 in partial indemnity costs, fixed by Kimmel J. in her order dated December 4, 2020, arising out of the original hearing of the applicant’s application. Justice Kimmel fixed the amount of costs, but did not order them paid at that time. Rather, her order provided that the applicant’s costs are reserved, and its request for payment of those costs may be raised at the return of any motion brought by the respondents.
[3] The respondents argue that they qualify as public interest litigants, and as such no costs should be awarded. They state that the costs fixed by Kimmel J. “remains an outstanding issue between the parties,” although it is apparent the applicant now seeks to bring that issue to a close in accordance with Kimmel J.’s reasons. In any event, the respondents argue that costs should be postponed until the matter is finally concluded, or that an order for costs in the cause be made.
[4] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.
[5] Costs to the Crown shall not be disallowed or reduced merely because they relate to a lawyer who is salaried officer of the Crown: see s. 131(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 36 of the Solicitor’s Act, R.S.O. 1990, c. S. 15; see also, for example, Ontario v. Rothmans Inc., 2012 ONSC 1804 at para. 45, and Campisi v. Ontario, 2017 ONSC 4189, at para. 6.
[6] 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. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 CanLII 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. 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 CanLII 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.
[7] Ontario is the successful party in the respondents’ motion that came before me on June 28, 2021. It is presumptively entitled to its costs.
[8] While the respondents may yet take steps towards a hearing on the merits of the constitutional issues they wish to raise, the fact that no hearing on the merits proceeded before me on June 28 and 29, 2021 as anticipated was the result of respondents’ counsel’s failure to follow basic civil procedure to ensure they had constituted the proceeding in a way that the court would have jurisdiction to address the issues. The respondents’ counsel’s errors caused delay. The errors caused Ontario (and the respondents) to incur costs that have been wasted. I see no reason why Ontario should have to await the respondents’ next steps before seeking its wasted costs of the steps that occurred before me, especially when (i) the respondents may choose to take no further steps; (ii) respondents’ counsel’s errors have led to costs that are wasted; and (iii) the respondents had ample time to structure their proceeding in a way to give the court jurisdiction and failed.
[9] Assuming, without deciding, that the respondents are public interest litigants, they are still not entitled to cause Ontario to waste costs by making basic errors in the constitution of their proceedings. Being a public interest litigant is not a licence to behave unreasonably in the litigation and cause the other party to have to incur costs unnecessarily.
[10] With respect to the quantum of costs claimed for the proceeding before me, I note the following:
a. Ontario’s counsel’s claimed hourly rates are reasonable for their experience;
b. Ontario’s materials were well-prepared and focused;
c. Ontario had to review the respondents’ motion record, which included over 1500 pages, and multiple reports from experts, including reply reports, some of which repeated the original lengthy reports with some additions. The respondents’ materials were thus not prepared in a focused manner, increasing the time Ontario had to spend to review them;
d. The respondents’ choices in prepared unfocused affidavits and in not properly constituting their proceeding with an originating process – necessary to make a claim for damages – resulted in wasted costs, and was unreasonable behaviour on the part of the respondents and their counsel;
e. In view of the observations I have just made, the time claimed by Ontario’s counsel is more than reasonable. I accept that, in fact, Ontario’s counsel must have spent significantly more time on the motion than is claimed on their costs outline.
[11] In my view, it is fair and reasonable to fix Ontario’s partial indemnity costs of the June 28, 2021 hearing at $15,000 as requested, and to require the respondents to pay those costs within thirty days.
[12] With respect to the costs fixed by Kimmel J., she anticipated that the costs of the original application and the comeback motion would be dealt with together, once the respondents were able to make their argument on the merits – something they were not prepared to do at the original hearing in December 2020. Due to respondents’ counsel’s errors, we were unable to deal with the merits on June 28, and 29, 2021 either. However, the question of the merits of the respondents’ position remains outstanding, and may be resolved either through a properly constituted comeback motion, or through an action or application originated by the respondents to Ontario’s application.
[13] In the circumstances, I am prepared to defer determining whether the costs fixed by Kimmel J. should be ordered paid by the respondents until a determination of the merits of the respondents’ constitutional arguments. However, if the proceedings are not reconstituted by the respondents in an appropriate manner within six months, Ontario may contact me to seek directions to allow it to seek to have the costs fixed by Kimmel J. addressed.
[14] Accordingly, I order:
a. The respondents shall pay Ontario’s costs of $15,000, all inclusive, for the hearing on June 28, 2021, within thirty days.
b. The determination of whether the respondents are responsible for Ontario’s costs of the December 4, 2020 hearing, fixed in the amount of $15,000 on a partial indemnity scale by Kimmel J. in her order of December 4, 2020, shall be deferred until a determination of the merits of the respondents’ constitutional arguments. However, if, after six months, the respondents have not properly constituted their proceedings to have the constitutional arguments determined, Ontario may write to me to seek directions to allow it to have the costs fixed by Kimmel J. addressed.
J.T. Akbarali J.
Date: July 13, 2021

