Court File and Parties
Court File No.: CV-22-00683264-0000 CV-22-00683407-0000 Date: 2023-04-18 Superior Court of Justice - Ontario
Re: Donald Jameson Whitehead, Plaintiff And: Attorney General of Ontario and Attorney General of Canada, Defendants
And Re: Donald Jameson Whitehead, Applicant And: Attorney General of Ontario and Attorney General of Canada, Respondents
Before: Vermette J.
Counsel: Donald Jameson Whitehead, self-represented Mariam Gagi, for the Defendant Attorney General of Ontario James Schneider, for the Defendant Attorney General of Canada
Heard: In writing
Endorsement as to Costs
1On February 13, 2023, I released an endorsement (2023 ONSC 1073) which: (a) dismissed the Application (Court File No. CV-22-00683407-0000); (b) dismissed the action (Court File No. CV-22-00683264-0000) as against the Attorney General of Canada; and (c) with respect to the claims against the Attorney General of Ontario (“AGO”) in the action, struck out the Statement of Claim with leave to file a Fresh as Amended Statement of Claim regarding the Plaintiff’s claims against Crown prosecutors.
2I have been advised that the Plaintiff and the Attorney General of Canada have reached an agreement on costs. However, the Plaintiff and the AGO were not able to agree on costs. The AGO delivered costs submissions on February 27, 2023. The Plaintiff did not deliver any responding costs submissions within the time set out in the last paragraph of my endorsement. The Plaintiff was given a second opportunity to deliver costs submissions and was advised that if he did not do so by the new deadline, I would decide the issue of costs without his input. The Plaintiff has not delivered costs submissions.
3This is my decision on costs.
Position of the AGO
4The AGO requests that the Court award costs on a partial indemnity basis in the amount of $2,127.50. The AGO submits that such a costs award is fair and reasonable and within the Plaintiff’s expectation.
5According to the AGO, the fact that leave to amend was granted is not a reason to reduce the AGO’s costs. The AGO argues that granting leave to amend does not diminish a moving party’s success nor its entitlement to costs.
6The AGO states that the issues were of importance to the AGO since a claim that does not disclose a reasonable cause of action would have required the AGO to defend an unmeritorious pleading. The AGO also points out that the Application was dismissed as an abuse of process.
7The AGO submits that the hourly rate proposed for the AGO’s counsel should not be reduced simply because Crown counsel are salaried officers of the Crown. The AGO refers to cases that have held that the partial indemnity rate for salaried Crown counsel is to be determined based on a reasonable rate for independent counsel of comparable experience.
Discussion
8The AGO was largely successful on the motions to strike and is entitled to costs. While the Plaintiff was granted leave to amend with respect to a small portion of his claim, he failed to plead properly any cause of action in his Statement of Claim. In these circumstances, the AGO was justified in bringing a motion to strike.
9I have reviewed the AGO’s costs outline. I find that the rate of the AGO’s lawyer is reasonable and appropriate. I also find that, considering the issues raised and the fact that motion materials had to be prepared in two different proceedings, the time spent and the overall amount sought are reasonable.
10Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs in favour of the AGO is on a partial indemnity basis in the all-inclusive amount of $2,000.00. In my view, this is an amount that the Plaintiff should reasonably have expected to pay in the event that he was unsuccessful on the motions. The costs are to be paid by the Plaintiff to the Minister of Finance for Ontario within 30 days.
Vermette J.
Date: April 18, 2023
