COURT FILE NO.: CV-22-79373

DATE: 2022-12-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Marcus Bowen, Bruce Da Silva, Shirley Dorsch, Zorka Milovanov, Paul Lawson, Peter Locs, Brent Peltier, Nick Piedigrossi, Melissa Shields, Julie Tiessen and Aneta Zaszkowska

I. Perry, for the Applicants/Responding Parties

Applicants/ Responding Parties

• and -

City of Hamilton

D. Jeffries and D. Search, for the Respondent/Moving Party

Respondent/Moving Party

The Honourable Mr. Justice J. R. Henderson

COSTS DECISION

[1] The City of Hamilton (“the City”) brought a successful motion to dismiss this application on the ground that the application was moot. The City now seeks its costs of the application and the motion on a substantial indemnity basis in the total amount of $31,293. In the alternative, the City seeks its costs of the application on a partial indemnity basis ($11,177) and its costs of the motion on a substantial indemnity basis ($15,938).

[2] The applicants submit that the City changed the foundation of the application when the City suspended the Mandatory COVID-19 Vaccination Verification Policy (“the vaccination policy”) on August 12, 2022. Therefore, the applicants seek their costs of the application on a substantial indemnity basis in the amount of $20,000, and their costs of the motion on a partial indemnity basis in the amount of $3,000. In the alternative, the applicants submit that there should be no costs to either party for the motion.

[3] I accept that the application and the motion were important to both the City and the applicants as the proceedings involved important issues such as job security and bodily autonomy. Further, I accept that the issues before the court were complex and novel; the issues included the effect of the COVID-19 pandemic on the workplace, the concept of mandatory vaccinations, and the scientific efficacy of the vaccinations.

[4] Both the City and the applicants submit that the conduct of the opposing party unduly lengthened the proceedings and thus increased the costs. Further, both sides rely on their respective offers to settle.

[5] A brief review of the history of this proceeding is appropriate. The vaccination policy was initially introduced in August 2021, but it was amended at least twice in the first half of 2022. The applicants provided the City with a draft, not issued, notice of application in May 2022. This was followed by a case conference with Regional Senior Justice Sweeny on May 16, 2022, to discuss the appropriate procedure. A second draft notice of application was delivered and a second case conference with the RSJ was held in July 2022. At the second case conference the parties scheduled a hearing date for the application of September 26, 2022.

[6] On August 3, 2022, the applicants served the issued notice of application and application record. On August 12, 2022, the City amended the vaccination policy by suspending the contentious parts of the policy. A further case conference with the RSJ was held on August 30, 2022, at which time the City confirmed that it would be bringing its motion to dismiss the application. The September 26 court date was converted to a date to hear the City’s motion.

[7] After I heard the City’s motion to dismiss on September 26, 2022, I reserved my decision and ultimately provided a written decision dated October 21, 2022, whereby I dismissed the application on the ground that the application was now moot.

[8] In my view, the key date in the litigation history is August 12, 2022, the date on which the City amended the vaccination policy by suspending the contentious parts of the policy. I accept the applicants’ submission that this amendment by the City changed the foundation of the entire application. After August 12, 2022, the applicants’ complaint was no longer a live issue between the parties. The landscape had been changed. There was no longer any need to proceed with the application, except on a hypothetical basis.

[9] I find that the applicants achieved some success with their application. The applicants had criticized the vaccination policy as being unlawful. They retained counsel, entered into negotiations, and commenced litigation. The net result of the applicants’ effort was that the City, as of August 12, 2022, amended its policy to suspend the alleged unlawful portion of the policy. I recognize that the applicants did not have complete success on their application as the policy was suspended, not revoked, but the applicants certainly achieved significant success.

[10] Because of their success with the application, I find that the applicants are entitled to a modest costs award for the application up to August 12, 2022. Regarding the scale of costs, I find that the City did not engage in any conduct that warrants a punitive or exemplary costs order. Therefore, the costs of the application will be on a partial indemnity scale.

[11] As to the quantum of the applicants’ costs for the application, I find that the costs outlines submitted by both parties were extraordinarily high considering that the court proceedings actually commenced on August 3, 2022, and were rendered moot by the City’s conduct on August 12, 2022. I estimate that the appropriate quantum for the applicants’ costs award is in the range of $7,000-$8,000 plus HST.

[12] As I indicated, as of August 12, 2022, the entire proceeding should have ended, but it did not. Both sides made offers to settle after August 12, 2022, but I find that neither of the offers to settle trigger the provisions of rule 49.10. I also find that neither of the offers to settle is a relevant factor in the costs award.

[13] The City’s offer to settle dated August 31, 2022, was essentially an offer for the applicants to abandon the application without costs. As I indicated, the applicants, in my view, are entitled to some costs up to August 12, 2022.

[14] The applicants’ offer to settle dated September 15, 2022, was an offer to discontinue the application if the City would discontinue the motion upon payment to the applicants of costs in the amount of $15,000. In my view, this was an excessive request for costs by the applicants.

[15] As the parties were not able to resolve the matter on a final basis after August 12, 2022, it was necessary for the City to bring the motion to dismiss. The City was successful on this motion and is entitled to its costs on a partial indemnity basis. Again, there is no reason to make a punitive or exemplary costs order against the applicants.

[16] The costs outline of the City calculates partial indemnity costs of the motion at $11,953, inclusive of HST, plus disbursements. I find that this amount of costs is more than a reasonable party would expect to pay.

[17] The City’s costs outline shows that two senior lawyers were involved in this case at almost every stage of the motion. In my opinion, two senior lawyers were not necessary for this motion. The use of two counsel created a duplication of services and increased the overall costs. I accept that the City may choose to have two lawyers involved at each stage, and the City has the right to make that decision for itself, but the losing party should not reasonably be expected to pay for two lawyers at every stage. Therefore, the partial indemnity costs of the City should be reduced by approximately one-third.

[18] In summary, the applicants are entitled to partial indemnity costs for the application up to August 12, 2022, and the City is entitled to partial indemnity costs for its motion. Considering the adjustments that I have made to the quantum of costs requested by each party, I find that the costs owing constitute, in rough terms, a set-off.

[19] Therefore, I order that there will be no costs paid by either party for the application or for the motion.

J. R. Henderson J.

Released: December 13, 2022

COURT FILE NO.: CV-22-79373 DATE: 2022-12-13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Marcus Bowen, Bruce Da Silva, Shirley Dorsch, Zorka Milovanov, Paul Lawson, Peter Locs, Brent Peltier, Nick Piedigrossi, Melissa Shields, Julie Tiessen and Aneta Zaszkowska

Applicants/ Responding Parties

and

City of Hamilton

Respondent/Moving Party

costs DECISION

J. R. Henderson J.

Released: December 13, 2022