COURT FILE NO.: CV-22-1981 DATE: 2023 05 09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patterson and Boucher, Applicants AND: Bhual, Respondent
BEFORE: Conlan J.
COUNSEL: Mr. M. Roefe, for the Applicants Mr. A. McNish, for the Respondent
ENDORSEMENT On Costs
I. The Background of the Proceeding
[1] By way of a Notice of Application that was issued in Milton on September 30, 2022 and subsequently amended on October 31, 2022, the Applicants, Molly Margaret Anne Patterson and Lawrence Boucher, applied for an order that, among other things, their neighbour, the Respondent, Dianne Bhual, be enjoined from trespassing upon the Applicants’ real property in Burlington and, further, be enjoined from harassing the Applicants.
[2] Not long after the originating process began, it settled, but for the issue of costs. It settled without a hearing on the merits. It settled almost immediately after the Respondent retained counsel in mid-April 2023. It settled on the basis of the written materials filed. It settled without much expenditure of court time, though not without any sweat as there were cross-examinations conducted out of court. It settled on the basis of relief that is quite consistent with what the Applicants claimed to begin with. It likely would have settled even earlier than it did if the Respondent had bothered to open her mail and actively participate earlier than she chose to do so.
[3] What has not settled is the issue of costs, as is so often the case these days. The Applicants want full recovery of all of their costs - $60,000.00, approximately. The Respondent suggests something substantially less than that; she offered previously to pay $5000.00 in costs.
[4] The parties filed some materials on costs, and a brief hearing was held at court on May 9, 2023, at which counsel on both sides made some submissions to supplement the written record.
II. The Law of Costs, and an Analysis of the Law as applied to our Facts
[5] In my view, costs of a proceeding, or of a step in a proceeding, ought to generally be decided swiftly but fairly, justly, reasonably and in proportion to what was at stake and what the unsuccessful side would have, prudently, expected to pay.
[6] The exercise of fixing the quantum of costs is not meant to be time-consuming or overly cumbersome; it is not designed to resemble one’s last trek to the top of Kilimanjaro. A modicum of common sense, and a quick review of Rule 57.01 will usually suffice.
[7] So, let us do that here. The Applicants were successful; they are, thus, presumptively entitled to some costs; the common scale of recovery is partial indemnity; there is nothing unreasonable about the Applicants’ counsel’s hourly rate or the time spent; the full recovery amount being sought now is far greater than what the Applicants’ costs outline (known to the Respondent) revealed just one month ago and far greater than what the Respondent’s own counsel’s fees would have suggested to her was a reasonable figure to have to pay to the Applicants; the proceeding was not at all complex; the issues were very important to both sides; neither side litigated in bad faith or did anything to markedly lengthen or complicate the proceeding; neither side denied or refused to admit anything that should have been admitted, though the Respondent ought to have participated earlier than she did and ought to have responded to the Applicants’ pre-litigation settlement overtures; and, in terms of any other relevant matter, the Respondent ought not to have made an allegation of racial intolerance on the part of the Applicants unless she had a firmer basis to make that allegation.
[8] Full recovery of costs is off the table, in my view. There is simply no way to get from the paragraph immediately above, which assesses the very factors that must be assessed, to saying that the Respondent should pay all of the Applicants’ costs.
[9] The Applicants’ reliance on cases like Davies v. Clarington (Municipality), 2009 ONCA 722, is, with respect, misplaced. There can be no “clear finding” that the Respondent engaged in “reprehensible conduct” of the type that would warrant elevated costs (that means anything more than the usual partial indemnity). The Honourable Madam Justice Epstein made that clear at paragraph 40 of the Davies, supra decision.
[10] I am of the opinion that partial indemnity costs are appropriate here.
[11] The Applicants’ full recovery figure is $60,000.00. Sixty per cent of that would be $36,000.00. The Applicants propose $42,000.00 (I am using round figures) as partial indemnity. With respect, this Court is not awarding seventy per cent of full recovery under the guise of partial indemnity.
[12] I may have been persuaded to award something higher than sixty per cent of full indemnity on account of the Respondent’s unsubstantiated allegation of racial bias, however, this is not a mechanical exercise. Is $36,000.00 a just and fair sum? It boils down to that. I think so. That is still a lot of money for an application that settled without a hearing and a mere several months after issuance.
[13] The Court orders that Ms. Bhual shall pay to the Applicants costs in the total amount of $36,000.00.
Conlan J. Date: May 9, 2023