Court File and Parties

COURT FILE NOS.: CV-21-00670634, CV-21-00670655, CV-21-00670173

DATE: 20220513

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – MARY ELIZABETH O’CONNOR, Respondent

AND RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – MARK RAYMOND TROZZI, Respondent

AND RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – PATRICK BRIAN PHILLIPS, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Peter Wardle and Evan Rankin, for the Applicant Michael Swinwood, for the Respondent, Mary Elizabeth O’Connor Michael Alexander, for the Respondent, Mark Raymond Trozzi No one making submissions on behalf of the Respondent, Patrick Brian Phillips

HEARD: Costs submissions in writing

COSTS OF THE APPLICATION

[1] The three Respondents in this set of Applications are physicians who are under investigation by the College of Physicians and Surgeons of Ontario (“CPSO”) for their failure to produce documentation and to cooperate with the investigation. The matter arises out of the objection taken by all three of the Respondents with respect to vaccination as a way to address health issues caused by COVID-19. None of the Respondents were prepared to cooperate in the usual way with the CPSO investigation, and they each viewed the disclosure and production requirements that accompany an investigation amount to an abuse of the regulator’s power.

[2] One of the Respondents, Mary Elizabeth O’Connor, had her counsel, Michael Swinwood, attend and fully participate in the hearing before me. Although I did not agree with Mr. Swinwood in the result, he played the appropriate counsel role and his client had the benefit of proper representation.

[3] The other two Respondents, Mark Raymond Trozzi and Patrick Brian Phillips, were represented by counsel Michael Alexander in all of the preliminary motions, scheduling appearances, and dealings with CPSO. However, Mr. Alexander did not attend at the hearing before me despite still being on the record, and did not send any message or advise the court in any way that he would not be attending. In effect, he abandoned his clients, who also did not attend in person at the hearing. In the result, CPSO obtained most, but not all, of the remedies it sought against Dr. Trozzi and everything it sought, including a limited mandatory Order with respect to his communications about the case, against Dr. Phillips. I did not grant a more widely framed non-publication Order sought by CPSO against Dr. Phillips.

[4] At the end of my reasons for judgment, I indicated that the parties may make written submissions on costs. Since only CPSO’s counsel and Dr. O’Connor’s counsel were present, I set out a specific timetable for the filing of their submissions. I did not address counsel for Dr. Trozzi and Dr. Phillips, as he was not present at the hearing. Nevertheless, I have since that time received written submissions on costs from Mr. Alexander on behalf of Dr. Trozzi, as well as from Messrs. Wardle and Rankin for CPSO, Mr. Swinwood for Dr. O’Connor. For some reason, Mr. Alexander did not make any submissions on behalf of his other client, Dr. Phillips.

[5] Counsel for CPSO treat this matter as three separate cases, as they should, and so have three costs requests contained in their submissions. There are, of course, some economies of scale in having had the matters heard together, but the materials produced to support each of the Applications are separate and are factually unique. They each took time to prepare independent of the others.

[6] In their written submissions, CPSO’s counsel set out their costs requests as follows:

(a) As against Dr. O'Connor, its partial indemnity costs of $17,971.46, inclusive of HST and disbursements;

(b) As against Dr. Trozzi, its partial indemnity costs of $14,465.07, inclusive of HST and disbursements; and

(c) As against Dr. Phillips, its partial indemnity costs of $14,465.07 discounted to $7,500, inclusive of HST and disbursements, to appropriately to reflect the College's partial success in its application against him.

[7] This was a hard-fought Application, with some preliminary skirmishes prior to the main event. Counsel prepared substantial evidentiary records as well as factums and briefs of authorities that showed a respectable amount of research and legal analysis. In the circumstances, CPSO’s counsels’ costs request strike as reasonable; indeed, they are quite modest. I have no hesitation in concluding that they used their time wisely and sought to economize the legal burden for their own client as well as for the Respondents.

[8] Mr. Swinwood submits on behalf of Dr. O’Connor that there should be no costs awarded here. He describes the case as one of public interest, thus characterizing Dr. O’Connor as a public interest litigant. He then makes reference to the line of cases in which no costs are awarded to the successful side in public interest litigation.

[9] With respect, I do not accept Mr. Swinwood’s characterization of the Application. There may be interest shown by the general public in his client’s case, but that is not because she is a public interest litigant. She is a physician being investigated by the regulator for alleged wrongdoing. Any private litigation or prosecution or professional discipline proceeding might be “interesting” to the community at large, but that does not take the private interest away from the matter. Dr. O’Connor retained counsel to defend herself and her professional conduct, not to advance the cause of the public.

[10] For his part, Mr. Alexander submitted on behalf of Dr. Trozzi that CPSO should pay costs. He put the argument in his written submissions as follows:

The Respondent, Dr. Mark Raymond Trozzi, seeks his costs in the application heard by Justice Morgan on January 7, 2022. Specifically, Dr. Trozzi seeks $7,232.54 or less inclusive of HST and disbursements vis a vis the Applicant, the College of Physicians and Surgeons of Ontario, given his partial success in defeating the College’s application.

[11] It is true that CPSO did not achieve every remedy that it sought against Dr. Trozzi. In my view, however, Mr. Alexander misconstrues the point of costs. The point is not to quantify the success of the party seeking costs, but to quantify the legal cost of that success. If Dr. Trozzi was partly “successful” in the sense that CPSO only received some but not all of the orders it sought against him, that success had nothing to do with Dr. Trozzi’s counsel’s efforts or billable work. After all, Dr. Trozzi’s counsel was missing in action. It would be rather novel to award costs to a lawyer who filed no materials, failed to attend at the hearing, and as a result invested no recoverable hours and incurred no recoverable expense.

[12] As for the costs sought against Dr. Phillips, his counsel, Mr. Alexander, has been somewhat ambiguous in writing up his submissions. I have received only one set of submissions from him, and that brief is entitled “Costs Submissions of Dr. Mark Trozzi”. The “Order Requested” portion of the written brief seeks only the costs for Dr. Trozzi as described above. The back page of the brief identifies Mr. Alexander and the legal centre for which he works as “Lawyers for the Respondent, Dr. Mark Trozzi”. But in the middle of the submissions, Mr. Alexander does make some mention of his other client, Dr. Phillips, and makes some arguments that appear to be on his behalf (or that at least include Dr. Phillips in the arguments made for Dr. Trozzi).

[13] Whether or not Dr. Phillips is included in the brief submitted on behalf of Dr. Trozzi makes no difference in the result. I have read it, and nothing in it persuades me that the very modest amount of $7,500 sought as against Dr. Phillips is not appropriate. If anything, counsel for CPSO are being generous to a fault to a physician who failed to properly cooperate with a professional regulatory investigation and against whom the regulator was compelled to prepare application materials and send counsel to day in court.

[14] Dr. O’Connor is to pay CPSO costs in the amount of $17,971.46; Dr. Trozzi is to pay CPSO costs in the amount of $14,465.07; and Dr. Phillips is to pay CPSO costs in the amount of $7,500. Each of these amounts is inclusive of all disbursements and HST.

Morgan J.

Date: May 13, 2022