Court File and Parties

COURT FILE NO.: CV-18-43

DATE: 2022-10-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Greg Rickwood and Jennifer Rickwood, Plaintiffs

AND:

Brantford Girls Hockey Association Inc. and Ontario Women’s Hockey Association, Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Gerry Smits, for the Plaintiffs

Oliver Hutchison, for the Defendants

COSTS ENDORSEMENT

[1] The parties have been unable to resolve the issue of costs in relation to the plaintiffs’ unsuccessful motion to amend the Statement of Claim and have each now delivered written submissions on costs.

[2] The defendants seek an order for costs on a partial indemnity basis in the sum of $9,149.40 in respect of fees, HST on fees in the sum of $1,189.42, and disbursements including HST on taxable disbursements in the sum of $169.50 for a total of $10,508.32, rounded to $10,000.00.

[3] The defendants submit that, as the successful parties, they are entitled to their partial indemnity costs of the motion, payable within 30 days. They say that, due to the number of issues raised by the plaintiffs’ proposed pleading, extensive legal research and preparation was required to respond to the motion.

[4] The defendants further submit that it was within the plaintiffs’ reasonable expectations to be required to pay in excess of $10,000 in respect of an opposed pleadings motion involving numerous contested issues. Their greater time investment relative to that of the plaintiffs was required to put relevant authorities before the court, which was justified by the importance of the issues and ultimately contributed to their success.

[5] The plaintiffs submit that, should costs be awarded to the defendants, their range should be $5,000 to $6,000, with no specific time for payment to be set.

[6] The plaintiffs say that the time spent by the defendants’ counsel was excessive and unwarranted. They submit that the costs award should reflect time spent which is roughly analogous to that spent by plaintiffs’ counsel, and that 10 to 20 hours for preparation of responding material is more appropriate than the 35.6 hours claimed by the defendants’ counsel.

[7] The plaintiffs pointed out in their submissions that there exists a power imbalance between the defendant Ontario Women’s Hockey Association (which they described as a “well-funded self-governing entity which can set its own rules”) and themselves and that they perceive themselves as having been victimized and unable to present their grievances to date. They also say that they have limited financial means.

Guiding Principles on Costs Generally

[8] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid."

[9] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub-rule 57.01(1), including, in particular, the principle of indemnity at para. (0.a) and the amount of costs that an unsuccessful party could reasonably expect to pay at para. (0.b).

[10] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson [2002] CarswellOnt 1007 (Ont. C.A.), 2002 CanLII 41469 and Macfie v. Cater, 1920 CanLII 401 (ON SC), [1920] O.J. No. 71 (Ont. H.C.) at para 28).

[11] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), [2005] O.J. No. 160 (Ont. C.A.)) The amount awarded for costs must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Discussion

[12] It is not disputed that the defendants were entirely successful in responding to the plaintiffs’ motion. The plaintiffs have not demonstrated any good reason why the costs of the motion should not follow the event. The defendants are therefore entitled to an award of costs. They have not sought elevated costs and are entitled to costs on a partial indemnity basis.

[13] I am unable to accept the plaintiffs’ position that the recoverable costs of the defendants should reflect time involvement which is “roughly analogous” to that of the plaintiffs. Although the time spent by the plaintiffs in prosecuting the motion is instructive in gauging their reasonable expectations with respect to their responsibility to pay costs if they were unsuccessful on the motion, it is not determinative. I find that the review of the law and the provision of the relevant authorities by the defendants was useful to the court in considering the issues raised by the plaintiffs. It was reasonable for the defendants to invest a reasonable amount of time to respond to the numerous and complex issues raised by the plaintiffs’ motion.

[14] I am unable to accept the plaintiffs’ submission respecting an alleged “power imbalance” that they say should be taken into account on the question of costs. The defendants are entitled to defend the plaintiffs’ action claiming substantial damages against them, and they were entitled to respond to the plaintiffs’ motion to amend the Statement of Claim.

[15] It is acknowledged that the party’s ability to pay a substantial award of costs may be taken into account by the Court in determining the quantum of, but not the responsibility to pay, costs. The plaintiffs say that they have limited financial means, however no particulars were provided, nor did they provide any support for their assertion that the defendant Ontario Women’s Hockey Association is “well-funded.”

[16] Applying the principles of indemnity, reasonable expectation, and proportionality I find that an award of costs of $7,500 inclusive would be considered fair and reasonable.

[17] I see no basis to refrain from setting a date for payment of the costs award. I find that the usual rule providing for costs to be paid within 30 days is appropriate.

Disposition

[18] In accordance with the foregoing it is ordered that the plaintiffs pay to the defendants costs of the plaintiffs’ motion fixed in the sum of $7,500 inclusive, within 30 days hereof.

D.A. Broad, J.

Date: October 17, 2022