Court File and Parties

COURT FILE NO.: CV-21-86332 DATE: 2021/09/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Zhang, Applicant AND Algonquin College of Applied Arts and Technology, Respondent

BEFORE: The Honourable Justice C.T. Hackland.

COUNSEL: Lee Chitty, for the Applicant Chris Rutherford, for the Respondent

HEARD: In writing

ENDORSEMENT (COSTS)

[1] The plaintiff, a student at Algonquin College (the respondent college) sought an interlocutory injunction staying two disciplinary decisions which levied sanctions against him for violation of the respondent college’s Student Residence Disciplinary Code, pending his application for judicial review.

[2] The plaintiff was not successful in obtaining the relief he sought. The court’s reasons for refusing injunctive relief are reported, see Zhang v. Algonquin College of Applied Arts and Technology, 2021 ONSC 3359. Essentially the court found judicial review and prerogative remedies were not a procedure available to the plaintiff on the basis that his entitlement to occupy his room at the college residence under the Student Residence Agreement was in the nature of a private contract and as such was not within the purview of administrative law or the judicial review powers of the court. Moreover, considerations of balance of convenience and irreparable harm did not favour the granting of injunctive relief.

[3] The respondent college seeks its costs on a partial indemnity scale in the sum of $7,210, inclusive of HST. The college argues that it was entirely successful in defending the motion and is therefore prima facie entitled to costs. I agree with this submission. Rule 57.01(1) identifies “the result in the proceeding” as a primary consideration in the exercise of the court’s discretion when awarding costs.

[4] However, the applicant submits that costs should be awarded against the respondent college, or alternatively costs should be denied to the college, because the college wrongfully charged the applicant rental for the period April 25 – May 9, 2021, subsequent to the end of his rental agreement, and seized a credit due to him on his food plan ($196.27). I will not give effect to this submission. It pertains to alleged events occurring after the court’s decision and no admissible evidence is before the court on this issue. I observe as well that the court’s reasons (para. 21) permitted the applicant to remain in residence until May 9 but on the basis of “ the interim financial arrangements currently in place” wherein the respondent agreed to pay a room rental per diem while over-holding on his student residence agreement, while the motion was before the court.

[5] The applicant also submits costs against him should be waived as he has raised what he considers to be important constitutional issues and he also attempts to re-argue some of the substantive points raised in his motion for injunctive relief. Unfortunately, this goes against the previous findings of the court in this matter.

[6] It is within the court’s discretion to reduce the costs otherwise to be awarded when circumstances warrant, such as hardship to the unsuccessful party. In this case, the applicant is a student from another country and went through a no doubt difficult time in being required to leave the student residence and relocate in the absence of family support and in the current public health crisis. His own counsel reduced his fees to assist the applicant to present his case and this is to be recognized and commended.

[7] As noted, the college is seeking partial indemnity costs of $7210 inclusive of HST. I have reviewed the college’s bill of costs and the amount of time and hourly rates claimed are reasonable. The legal issues in this case are of some complexity and the materials filed by the college were of excellent quality and very helpful to the court.

[8] As noted above, the applicant has encountered some circumstances of hardship and I think it appropriate to moderately reduce the costs to be awarded to the college.

[9] The court orders that costs of the motion herein are awarded to the respondent college on a partial indemnity scale, which I fix in the sum of five thousand dollars ($5,000), all in, payable forthwith by the applicant to the respondent.

Date: September 8, 2021

COURT FILE NO.: CV-21-86332 DATE: 2021/09/08

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Richard Zhang, Applicant AND Algonquin College of Applied Arts and Technology, Respondent

COUNSEL: Lee Chitty, for the Applicant Chris Rutherford, for the Respondent

ENDORSEMENT (costs)

Justice Charles T. Hackland

Released: September 8, 2021