Court File and Parties
COURT FILE NO.: CV-20-83769 DATE: 2022-02-04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shania Lavallee and Justine Lavallee, Plaintiffs AND Solit Isak, Defendant
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Charles R. Daoust, Counsel for the Plaintiffs Cedric Y.L. Nahum, Counsel for the Defendant
HEARD: In writing
COSTS DECISION
M. Smith J
[1] On October 7, 2021, I released my decision in this matter (2021 ONSC 6661). Shania Lavallee (“Shania) and Justine Lavallee (“Justine”) were successful in their Summary Judgment Motion against Solit Isak (“Solit”). I found that Shania and Justine were entitled to their costs. I invited counsel to resolve the issue of costs, but they were unable to agree.
[2] On December 1, 2021, Shania and Justine delivered their costs submissions. Solit was given 30 days to respond to Shania and Justine’s costs submissions. Solit has not filed any responding materials.
[3] Shania and Justine seek to recover their partial indemnity costs in the amount of $26,547.56, inclusive of disbursements and applicable taxes.
[4] For reasons that follow, I award costs to Shania and Justine, in the total amount of $20,000.00, inclusive of disbursements and H.S.T.
ANALYSIS
[5] Costs are at the discretion of the Court, as set out in s. 131(1) of the *Courts of Justice Act*, R.S.O. 1990, c. C.43.
[6] Rule 57.01(1) of the *Rules of Civil Procedure*, R.R.O. 1990, Reg. 194 sets out the factors a Court may consider when deciding on a costs award. These factors include, amongst others, the following:
a. The importance of the issues.
b. The complexity of the proceeding.
c. The amount claimed and recovered in the proceeding.
d. The principle of indemnity.
e. The concept of proportionality.
[7] The overriding principals of fairness and reasonableness must be applied to each individual case: see Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634.
The importance of the issues
[8] The importance of the issues cannot be understated. Shania and Justine’s reputations had been significantly damaged by Solit’s actions.
[9] Solit acted unreasonably in her online campaign of defamation against Shania and Justine. Solit's actions had detrimental consequences on Shania and Justine's personal lives. It was appropriate and reasonable for Shania and Justine to spend the necessary time and resources in their pursuit of justice.
[10] Shania and Justine are entitled to their costs, but the award of costs must be proportionate and reasonable.
Complexity of the proceedings
[11] While this action was relatively straightforward, in that the legal principles were widely known and applied, several steps were taken to bring this matter to a Summary Judgment Motion, including the drafting of pleadings, attendance at Solit’s Examination for Discovery, preparing five (5) affidavits and a factum, as well as providing oral submissions at the Motion.
The amount claimed and recovered in the proceedings
[12] Shania and Justine were each seeking $60,000.00 in general damages. They were each awarded $50,000.00 plus interest in general damages, which is very close to the quantum that had been sought.
[13] The purpose of the legal proceeding commenced by Shania and Justine was more than seeking a monetary award against Solit. They were seeking to be vindicated. This objective was achieved.
[14] Shania and Justine also needed to put an end to Solit’s dissemination of falsehoods that were designed to tarnish their reputations. A permanent injunction was granted.
The principle of indemnity
[15] The amount of a cost award should be reasonable and within the reasonable expectations of the parties.
[16] In determining the cost award to be made, the Court may look to the costs of the losing party to gauge the reasonableness of the costs being claimed by the successful party.
[17] Unfortunately, Solit did not file any responding materials. It would have been a helpful exercise to compare the time expended and the costs incurred by both parties.
[18] Litigation is expensive and time consuming. Shania and Justine’s lawyers, law clerk and student spent a total of 174.1 hours in this matter. The hourly rates charged were as follows: $450.00 for the senior lawyer (2002 call to the Bar), $215.00 for the junior lawyer (2018 call to the Bar), $125.00 for the law clerk and $150.00 for the law student. Over 60% of the work was completed by the junior lawyer.
[19] On the record before me, it does not appear that Shania and Justine have taken unnecessary steps in the proceedings. To the contrary, they quickly availed themselves of the Summary Judgment mechanism without delay and successfully reduced the length and costs of the litigation.
[20] The hours and rates being claimed by Shania and Justine are not unreasonable. I believe that it falls within the range of what a litigant would pay for a matter that is comparable to the case at bar. Solit should not be taken by surprise on the total amount being claimed by Shania and Justine.
The concept of proportionality
[21] Proportionality is a relevant consideration and may result in the reduction of the costs.
[22] To economize the costs, Shania and Justine’s legal team had much of the work undertaken by junior counsel. However, there were multiple timekeepers. Inevitably, when there are several timekeepers working on the same matter, there will be some duplication of work. The details of the work completed by the senior lawyer, junior lawyer, law clerk and student were not provided. It is therefore unknown how many hours of work overlap between the various timekeepers. Any overlap of work should not be paid by the losing party.
[23] Although Solit made no representations regarding the costs that should be awarded, I am mindful that Solit is a young adult, and it is likely that she does not have significant financial resources to pay the judgment and costs awarded to Shania and Justine.
[24] Furthermore, as I indicated in my initial decision, Solit's actions were impulsive, naive, and misguided. She wanted to raise awareness of racial issues but in this case, she had a serious lapse in judgment by failing to ensure that the factual foundation was accurate. It does not negate that Solit’s actions were inexcusable and harmful to Shania and Justine, but I believe that it is nonetheless factors that need to be taken into account when assessing the appropriate quantum of a cost award.
DISPOSITION
[25] Based on the foregoing, I find that it is fair, just, and reasonable to fix the costs at $20,000.00, inclusive of disbursements and H.S.T.
M. Smith J
Released: February 4, 2022
COURT FILE NO.: CV-20-83769 DATE: 2022-02-04
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHANIA LAVALLEE and JUSTINE LAVALLEE Plaintiffs
– and –
SOLIT ISAK Defendant
COSTS DECISION
M. Smith J
Released: February 4, 2022