Court File and Parties

COURT FILE NO.: CV-21-671579-0000 DATE: 2021-12-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: National Organized Workers Union AND: Sinai Health System

BEFORE: J.T. Akbarali J.

COUNSEL: Ian J. Perry, for the Applicant Bonnie Roberts Jones, for the Respondent

HEARD: In writing

Endorsement

[1] On November 20, 2021, I released reasons dismissing the applicant’s application for interim injunctive relief which, if granted, would have prevented the respondent from enforcing its policy mandating vaccination against COVID-19 of the applicant union’s members: 2021 ONSC 7658. These reasons address the respondent’s claim for costs of the application.

[2] The respondent, as the successful party, seeks its partial indemnity costs of $34,146.11, inclusive of HST and disbursements.

[3] The applicant argues that the matters raised in its proceeding were of public interest and of novel concern, such that no costs should be awarded. It also argues that the costs sought are excessive, and that, if awarded, costs should be no more than $10,000.

[4] In arguing that no costs should be awarded, the applicant relies on Mancinelli v. Royal Bank of Canada, 2018 ONSC 797. There, the court held that, for an issue to be novel in the legally significant way that would justify the court in ordering no costs against the party who unsuccessfully advanced the issue, it is not enough that the issue is unprecedented or has not been decided before. Rather, the legally significant novelty of a legal issue is found in the circumstance that the existing case law is inadequate to resolve the issue and there would be no proper reason for the party advancing the issue to expect to fail: para. 9.

[5] I agree with the respondent that the issues raised in this application were not novel in the legally significant way described in Mancinelli. Existing case law supported the respondent’s argument that the harm that the applicant’s members might suffer was reparable damages, and so fell outside the court’s residual jurisdiction in cases where labour arbitrations are ongoing. Notably, some of the existing case law spoke directly to the harm in the context of mandatory vaccination policies: Kotsopoulos v. North Bay General Hospital, [2002] O.J. No. 715 (S.C.J.).

[6] I thus conclude that there is no reason not to award partial indemnity costs to the respondent. I turn to consider quantum.

[7] 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.

[8] 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.

[9] With respect to the quantum of costs claimed, I note the following:

a. The issues raised in the application were of great importance to both parties, and to the health care sector as a whole, as demonstrated by the intervention of the Ontario Hospital Association in the application.

b. The application was brought on urgently, and on a compressed timeline designed to catch it up with another urgent application that was heard immediately before this one. Whenever there are tight timelines, it can be expected that costs will increase because it becomes impossible to prepare the file in the most efficient manner possible.

c. However, I accept the applicant’s argument that there was likely some duplication of work between the respondent’s counsel as a result of the tight timelines they had to meet.

d. I do not agree with the applicant’s argument that no costs should be awarded for the preparation of Dr. Juni’s affidavit. It never became necessary to consider the admissibility of Dr. Juni’s proposed expert evidence, however, I did not exclude Dr. Juni’s evidence, and in fact relied on the affidavit in respect of certain facts. Moreover, it was reasonable of counsel to prepare Dr. Juni’s affidavit given the lengthy expert evidence that the applicant led through an expert report of about 127 pages before attachments, much of which was totally irrelevant to the issues, even if I had gotten to the point of considering expert evidence in my analysis (and some of which was inconsistent with positions taken by the applicant on the motion).

e. I also do not agree that no costs should be awarded for the preparation of Ms. Thomson’s affidavit. Although counsel agreed not to rely on Ms. Thomson’s evidence, at the hearing, one aspect of Ms. Thomson’s evidence was raised, and applicant’s counsel indicated he had no objection to that particular portion of Ms. Thomson’s affidavit going in.

f. Respondent’s counsel’s hourly rates are reasonable in view of their seniority. Involving lawyers at differing seniority levels also allowed work to be completed in a more economically efficient manner.

g. The applicant is a sophisticated party. In my view, the fact that the respondent would take this application seriously and respond in a thorough manner would have been reasonably expected. That there would be significant costs of doing so would also have been within the applicant’s reasonable expectations.

[10] Taking these factors into account, I conclude that costs of $27,000 are fair and reasonable.

[11] The applicant shall pay the respondent its costs of $27,000, all inclusive, within thirty days.

[12] The intervener is not entitled to its costs, nor shall any costs be awarded against it.

J.T. Akbarali J.

Date: December 6, 2021