Court File and Parties
COURT FILE NO.: CV-22-0013 DATE: 2024-01-18
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
LUKE JUDSON Applicant
Douglas W. Judson and Peter A. Howie, for the Applicant
- and -
HARROLD BOVEN Respondent
J. Paul R. Cassan, for the Respondent
HEARD: Via Written Submissions
Justice B. R. Warkentin
Reasons on Costs
[1] On December 7, 2023, I dismissed the Application in which the applicant alleged the respondent contravened the Municipal Conflict of Interest Act, R.S.O. 1990, c.M.50 (MCIA) when, as an elected council member of the Township of Emo, he seconded a motion to indemnify the mayor, Harold McQuaker, himself, and one other council member, Warren Toles, for legal expenses incurred to respond to an application before the Human Rights Tribunal of Ontario (HRTO).
[2] In paragraph 47 of my Reasons, I instructed the parties to provide written submissions on costs within 30 days.
Costs Submissions
[3] Counsel for the respondent is seeking costs on an actual indemnity basis inclusive of HST and disbursements in the amount of $59,349.95. In the alternative, he seeks costs on a substantial indemnity basis in the amount of $47,637.73.
[4] In support of their claim for actual or substantial indemnity costs, counsel for the respondent provided an offer to settle dated August 12, 2022, on the basis that the Application would be dismissed without costs.
[5] Counsel for the applicant argued that the quantum sought by the respondent was excessive and unrelated to the complexity of the matter before the Court. They proposed that reasonable costs should be in the range $10,000.00. In opposing the costs sought by the respondent, counsel for the applicant submitted their offer to settle in which they proposed to dismiss the Application without costs provided the respondent accept a reprimand from the Township of Emo.
[6] Both counsel in their costs submissions, made allegations against the other for the manner in which the litigation was undertaken. Those issues were not before me in the hearing of the Application, nor did I make any findings regarding the underlying motivations or intentions of the parties in pursuing the issues in the Application. Absent a “show-cause” hearing (which is not appropriate in the circumstances of the issue of costs when costs are not being sought against a lawyer personally), I am confining my decision on costs to the substantive issues before the court, the result, and the relevant offers to settle.
[7] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
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 costs shall be paid.
[8] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[9] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 OR (3d) 291 (Ont CA) at para 37).
[10] The respondent was successful in the Application. His offer to settle was to dismiss the Application without costs. I dismissed the Application with costs to the respondent.
[11] The hearing of the Application lasted less than half a day. The issues before the Court were not overly complex but did require the interpretation of conflict-of-interest legislation and the application of that legislation to the conduct of the respondent.
[12] While the respondent is entitled to costs and the purpose of inviting offers to settle is to provide a costs incentive to resolve cases without the time and expense of continuing litigation, the court is also required to assess the reasonableness of the costs being claimed.
[13] I also note that a portion of the Bill of Costs relates to each party’s motion to strike certain affidavit material and portions of the applicant’s factum. I disregarded those motions in reaching my decision to dismiss the Application.
[14] I find the quantum sought by counsel for the respondent is excessive given the limited complexity of the proceeding and the time required for this hearing.
[15] I find that a reasonable award of costs, inclusive of HST and disbursements for this proceeding on a partial indemnity scale would be in the range of $8,000.00 to 10,000.00. In light of the respondent’s offer to settle, that amount should be increased to $15,000.00.
[16] The applicant shall therefore pay costs in the amount of $15,000.00.
“Original signed by”
The Hon. Justice B.R. Warkentin