Court File and Parties
Court File No.: CV-13-00019390-0000
Date: 2025-02-26
Court: Superior Court of Justice – Ontario
Plaintiffs:
Angie Williams and Dryden Williams and Jasmyn Williams, Minors, by their Litigation Guardian, Kim Ann Barrette
Defendants:
Andrew Williams, Canadian Pacific Railway Company/Compagnie de chemin de fer Canadien Pacifique, James Hamilton, Christopher McMillan, and the Corporation of the Town of Lakeshore
Before: J. Paul R. Howard
Counsel:
- Jeff Van Bakel, for the proposed intervenor, Gregory John Monforton
- Victoria Yang and D. Joel Dick, for the Plaintiffs
- Anne Davenport, for the Defendant Andrew Williams
- Christopher J. Rae and Raajan Aery, for the Defendants Canadian Pacific Railway Company, James Hamilton, and Christopher McMillan
- David S. Thompson, for the Defendant Corporation of the Town of Lakeshore
Heard: Written submissions
Costs Endorsement
Overview
[1] In my reasons for decision released May 13, 2024, Williams v. Williams, 2024 ONSC 2732 [Ruling on Intervention Motion], I dismissed the motion brought by Mr. Gregory John Monforton, the former lawyer for the plaintiffs, as proposed intervenor seeking an order for leave under rule 13.01 of the Rules of Civil Procedure to intervene as an added party to what counsel in this proceeding have called the “Settlement Interpretation Motion.”
[2] In para. 132 of my Ruling on Intervention Motion, I fixed a schedule for delivery of the parties’ costs submissions in the event that they were unable to agree on the question of the costs of the motion.
[3] The parties have been unable to agree on costs.
[4] The defendants Canadian Pacific Railway Company, James Hamilton, and Christopher McMillan (collectively, “CP Rail”), the defendant Andrew Williams (“Andrew”), the defendant Corporation of the Town of Lakeshore (“Lakeshore”), and the proposed intervenor have all delivered their various submissions in accordance with the prescribed schedule.
[5] I have read and considered all the submissions, costs outlines, and other materials received.
[6] The position of CP Rail is that it is entitled to its costs of the motion on a partial indemnity basis in the total amount of $65,353.64, comprised of $55,701.60 of fees, $2,133.48 of taxable disbursements, and $7,518.56 of HST.
[7] Andrew claims his partial indemnity costs in the total amount of $16,276.61, comprised of $14,404.08 of fees and $1,872.53 of HST.
[8] Lakeshore requests payment of its partial indemnity costs in the total amount of $20,110.95, inclusive of disbursements and HST.
[9] Finally, the position of the proposed intervenor is that the responding parties’ costs of the motion be fixed in the total amount of $15,000, to be split between the three responding parties or, in the alternative, costs to each responding party should be fixed in the all-inclusive amount of $7,500.
Governing Legal Principles
[10] In Ontario, cost awards in civil law matters are governed by s. 131 of the Courts of Justice Act and, in most cases, rule 57.01 of the Rules of Civil Procedure.
[11] Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs, in the following terms:
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 the costs shall be paid.
[12] It has been said that making an award of costs is inherently an exercise of judicial discretion. Indeed, the Supreme Court of Canada and our Court of Appeal have held that, “costs awards are ‘quintessentially discretionary.’” Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, para 126.
[13] That said, the discretion conferred by s. 131(1) of the Courts of Justice Act is expressly made subject to the “rules of court.” Rule 57 of the Rules of Civil Procedure deals with the awarding and fixing of costs in civil proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs. In this regard, subrule 57.01(1) provides that:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;
(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and
(i) any other matter relevant to the question of costs.
[14] The indemnification of the successful party is a paramount objective – but not the only one – to be served by a costs order. Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”
[15] In DUCA Financial Services Credit Union Ltd. v. Bozzo, Cumming J. described the “normative approach” to costs awards in Ontario as follows:
… first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e., within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
[16] The Ontario Court of Appeal has observed that “partial indemnity costs are ordinarily calculated using an hourly billing rate that is around 60 percent of counsel’s actual rate,” which “must generally be adjusted further to take into account the factors in r. 57.01(1) of the Rules.”
[17] In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. “The fixing of costs is not a bookkeeping exercise.” Rather, in exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances. The “overriding principle is reasonableness.”
[18] As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): “[o]verall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”
[19] The court should also consider the totality of the costs award to ensure that it is not disproportionate to the amount recovered. That is consistent with the directive of subrule 1.04(1.1) of the Rules of Civil Procedure that in applying the rules, “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” That said, while the consideration of proportionality “is necessary to the soundness of any costs award and to ensure the health of the justice system,” the overarching principle remains that the order for costs must be fair and reasonable.
[20] I am guided by these governing principles here.
Analysis
Presumptive Entitlement
[21] As I have reviewed above, the indemnification of the successful party is a paramount objective in making costs awards, and the “normative approach” in Ontario is that costs should follow the event.
[22] There is no reason to depart from the presumptive rule here. The responding and opposing parties, that is, CP Rail, Andrew, and Lakeshore, were entirely successful in having the intervention motion dismissed and are entitled to their costs. In fairness, the proposed intervenor does not contest their entitlement to costs.
The Scale of the Costs Award
[23] As reflected in their respective cost submissions, all parties are agreed that the appropriate scale here is the partial indemnity scale.
The Appropriate Quantum of the Responding Parties’ Claims for Costs
[24] At the outset of my analysis, I should say that I have considered all of the factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, not all of which are equally relevant in the instant circumstances (or at all). As such, I do not propose to specifically address each of the factors below.
[25] I note that there was no specific objection raised in the responding cost submissions of the proposed intervenor to the amounts claimed by the respective parties for disbursements. I have reviewed the items claimed as disbursements by CP Rail ($2,133.48) and by Lakeshore ($1,379.17), and I note that the amounts in question were incurred for items like transcript charges, courier costs, travelling expenses for the appearance in Windsor, etc. I am satisfied that the amounts claimed are reasonable, appropriate, and recoverable.
[26] Similarly, there was no specific objection raised by the proposed intervenor to the hourly rates charged by counsel for Andrew or Lakeshore.
[27] Paragraph 8 of the Proposed Intervenor’s Submissions does object to the “$955-$660 per hour” rates claimed by counsel for CP Rail; however, those rates reflect the actual hourly rates of the various lawyers engaged by CP Rail, and CP Rail’s claim is not based on its lawyers’ actual hourly rates. CP Rail’s claim is for indemnification of its lawyers’ partial indemnity rates. Most of the work that is the subject-matter of CP Rail’s claim for costs was performed by Mr. Christopher J. Rae, and the actual claim of CP Rail is based on Mr. Rae’s partial indemnity rates of $396 (for work performed in 2022) and $450 (for work performed in 2023). In the circumstances, given the experience of Mr. Rae, and the importance of the issues involved, I am satisfied that the partial indemnity rates claimed by CP Rail are fair and reasonable.
[28] In sum, subject to one related concern, which I address below, I am satisfied that all hourly rates claimed by counsel for the responding parties are fair and reasonable.
[29] As referenced, the fundamental position of the proposed intervenor is that the responding parties’ costs of the motion be fixed in the total amount of $15,000, to be split between the three responding parties. In other words, Mr. Monforton argues that he should be made to pay for only one set of costs.
[30] The sole authority that Mr. Monforton cites in support of this rather remarkable position is the decision of then R.S.J. Hackland in Guergis v. Novak, 2013 ONSC 1130. However, respectfully, that decision does not assist the proposed intervenor. In Guergis v. Novak, several defendants moved to strike out the claims of the plaintiff politician. The defendants were successful on what was essentially a pleadings motion (no evidence, no cross-examinations, just the statement of claim). There were five sets of moving party defendants. In short, the court held that two of the defendant groups with “identical” interests were awarded one set of costs, while other groups with varying interests were awarded separate amounts. R.S.J. Hackland held that:
In my view there was significant overlap in the facta of the two groups of defendants with similar interests i.e. (1) the Novak, Harper, Glover, Raitt group and (2) Mr. Giorno. At least for the purposes of this motion Mr. Giorno’s interests appear to be identical to those of Mr. Novak and Mr. Harper. Not surprisingly, their respective facta cover the same ground. I recognize that Mr. Giorno has the right to choose to be separately represented from other defendants with whom he has an apparently identical interest, but for the purpose of fixing costs on a pleadings motion such as this, I think the court is entitled to consider the duplication of the time and legal costs which flow from this choice. This is contemplated by Rule 57.01(1)(h)(ii).
In applying the Boucher principle which focuses on the amount of costs that an unsuccessful party could reasonably expect to pay in respect of this motion, (codified in Rule 57.01(1)(0.6)), I make two observations. When a plaintiff, as in this case, chooses to sue a wide variety of defendants on the basis of accusations of conspiracy and bad faith, the expectation must be that the claims will be vigorously defended and those defendants with different interests will be separately represented and those with similar interests may or may not be separately represented. In any event, the plaintiff’s expectation here must have been that the defendants would be incurring substantial costs in the defence of this action. At the same time, as I have just observed, there should be a reasonable expectation that costs would not be payable to multiple counsel putting forward an identical position.
Mr. Giorno’s counsel appears to have spent approximately 300 hours in the preparation of the motion and counsel for the Novak group apparently 250 hours. In view of what I regard as significant duplication, I would award one set of costs to the defendants Giorno and the Novak group. I view the other defendants as having markedly different interests involving substantially different legal arguments with the result that separate costs to these defendants are warranted. [Emphasis added.]
[31] In the result, R.S.J. Hackland awarded, collectively, almost $120,000 to the various defendants on the pleadings motion. To be clear, R.S.J. Hackland awarded four sets of defendants their own separate costs on that pleadings motion, allowing fees to each set of defendants in amounts ranging from $18,000 to $40,000. In that regard, it may be said that Guergis v. Novak actually stands for the proposition that, even on a simple pleadings motion, multiple defendants who do not share identical interests may each recover their own separate set of costs.
[32] As such, on the whole, I do not think that Guergis v. Novak is of much assistance to the proposed intervenor here and, even at its highest, its most favourable aspects are distinguishable from the circumstances of the instant case.
[33] In the instant case, the relief sought by the proposed intervenor on the intervention motion, if granted, would have had an impact on all of the responding parties. The decision of CP Rail, Andrew, and Lakeshore to retain their own legal counsel is beyond question. Each defendant incurred their own costs responding to and opposing the motion brought by the proposed intervenor, which I dismissed. As in Guergis v. Novak, when the plaintiffs here chose to sue a wide variety of defendants on the basis of wide-ranging accusations, the expectation of those plaintiffs must be that such claims will be vigorously defended and those defendants with different interests will be separately represented and those with similar interests may or may not be separately represented. In any event, the plaintiffs’ expectation here must have been that the defendants would be incurring substantial costs in the defence of this action.
[34] Further, it cannot be said that three sets of responding parties have “identical” interests in the proceeding. When one reviews the plaintiffs’ statement of claim, it is quite clear that there are very different claims being advanced against each of CP Rail, Andrew, and Lakeshore. They do not have identical interests. CP Rail and Andrew were both directly involved in the collision, Lakeshore was not. CP Rail was responsible for the operation of the freight train. Andrew was responsible for the operation of his motor vehicle. The claims against CP Rail are focussed on the operation of the train. Lakeshore had nothing to do with that. The claims against Lakeshore have to do with what might generally be called “road conditions.” CP Rail and Andrew had nothing to do with that.
[35] Indeed, Andrew is particularly different from the other responding parties in that he is actually a plaintiff in his own right in a companion action, in which he is also suing CP Rail and Lakeshore. And on the instant intervention motion, Andrew was privy to certain information covered by settlement privilege and solicitor-client privilege, to which both CP Rail and Lakeshore had no access.
[36] Moreover, as Mr. Thompson for Lakeshore points out, at no point in any one of the multiple case conferences that were held in advance of the intervention motion did counsel for the proposed intervenor ever raise the issue that the parties were not entitled to present their positions independently. In the same vein, Mr. Rae observes that no direction was sought by Mr. Monforton or made by this court in advance of the motion being briefed that one or more of the responding parties ought to have filed a joint factum.
[37] In sum, in the instant case it simply cannot be said that any of CP Rail, Andrew, or Lakeshore have “identical” interests, as did two – and only two – of the defendant groups in Guergis v. Novak. In my view, each of those three sets of responding parties are entitled to their own legal costs of the motion. And the proposed intervenor ought to have expected that (if, in fact, he did not). Indeed, I note the submission made by Mr. Rae on behalf of CP Rail that, “Mr. Monforton was advised from the outset that his attempt to intervene and derail the preliminary trial motions would be vigorously opposed.”
[38] In his submissions, counsel for the proposed intervenor attempted to downplay the significance of “what amounts to a procedural motion.” Respectfully, I disagree. This was not a straightforward procedural motion. To understand the issues on the intervention motion, one had to possess a full command of the issues involved in the Settlement Interpretation Motion. Unlike the simple pleading motion in Guergis v. Novak, where the court awarded almost $120,000 in costs to the various defendants, the moving party proposed intervenor delivered an affidavit in support of his motion, and there was cross-examination on that affidavit. The transcript of the cross-examination of Mr. Monforton was 138 pages. There were at least three to four case conferences held in advance in connection with the intervention motion and the other related pretrial motions. The competing arguments required a full day of the court’s time on a special appointment in order for the positions of all parties to be fully canvassed.
[39] In terms of legal complexity, I agree with Mr. Rae that this was a reasonably complex motion involving the application of principles regarding motions for leave to intervene as a party in the relatively rare context of a preliminary pretrial motion. In addition, the proposed intervenor alleged a waiver of solicitor-client and settlement privilege, which added to the complexity of the proceeding. The proposed intervenor also couched his purported contribution on both hearsay and subjective intention evidence, which raised issues of admissibility and further complicated the matters in issue.
[40] I also agree that the issue on the intervention motion and its practical impact on the litigation was of critical importance to each of the responding parties. To highlight just one aspect of the importance to the responding parties, in para. 125 of my Ruling on Intervention Motion, I expressly found that “the responding/opposing parties would suffer undue delay and prejudice if the proposed intervention of Mr. Monforton were permitted.” I explained that:
To my mind, the prospect of the further adjournment of the Settlement Interpretation Motion until, at the very best, late in 2024 or, more realistically, sometime in 2025 – when it was originally scheduled for hearing the first week of September 2022, and was fully briefed and ready to go – represents undue delay and resulting prejudice to the other parties on the motion and their counsel.
[41] In that context, I wholly understand Mr. Rae’s pointed submission that:
Mr. Monforton’s attempt to insert himself into the trial of this action and the Settlement Interpretation Motion demanded a vigorous opposition by the CPR Defendants, given the importance of the motion, and the expected additional delay the eleventh-hour attempt to intervene would (and in fact did) have.
[42] I have also considered the reasonable expectations of the unsuccessful party. Mr. Monforton’s intervention motion was brought in the face of a body of jurisprudence in which, as I observed, “the courts have repeatedly held that leave to intervene in a private lawsuit should be granted in ‘rare’ cases only.”
[43] As such, I agree with the submission of Ms. Davenport on behalf of Andrew that, echoing a similar submission expressed by Mr. Rae, when Mr. Monforton brought his intervention motion, “he knew or ought to have known that he would face costs exposure if he was successful.”
[44] On behalf of the proposed intervenor, Mr. Van Bakel delivered a costs outline, which indicates that if the proposed intervenor had been successful, Mr. Van Bakel would have claimed costs of the motion in the approximate amount of $18,721.94. As Ms. Davenport has noted, while that claim was not supported by the production of any dockets detailing the time spent or amounts charged to the client in relation to the intervention motion, I note that the $18,721.94 amount that Mr. Van Bakel would have claimed is roughly comparable to the $16,276.61 amount claimed by Ms. Davenport on behalf of Andrew and the $20,110.95 amount claimed by Mr. Thompson on behalf of Lakeshore. In the circumstances, I do not think that the proposed intervenor is in a position to claim that the amounts requested by either Andrew or Lakeshore are unfair, unreasonable, excessive, or imprudent.
[45] Counsel for the proposed intervenor argues that there was duplication of effort as between the three sets of lawyers for the responding parties. Respectfully, I disagree. To my mind, to the extent that there was some duplication as between the three responding parties in their written and oral submissions, it was minimal and unavoidable in the circumstances. The intervention motion was one of multiple pretrial motions argued before me over a three-day special appointment hearing. My recollection over that three-day hearing is that all counsel, consistent with their considerable courtroom experience, made a concerted effort to minimize any duplication in their submissions.
[46] In particular, on the intervention motion, Ms. Davenport, for example, addressed certain aspects of the sub-issues relative to settlement privilege. That is not surprising given that, among the responding parties, only her client was a legitimate claimant of settlement privilege because CP Rail and Lakeshore were not parties to the settlement of the plaintiffs’ claims against Andrew.
[47] Similarly, Mr. Rae on behalf of CP Rail addressed certain legal issues that were not addressed or not fully explored by counsel for the other responding parties. For example, Mr. Rae addressed in some detail why Mr. Monforton’s proposed evidence would amount to no more than subjective intention evidence, a point which I accepted in my Ruling on Intervention Motion.
[48] And it was Mr. Thompson on behalf of Lakeshore who, among other submissions, made the point that if Mr. Monforton did indeed have relevant (non-privileged) information to share with the court on the Settlement Interpretation Motion, the provisions of subrule 39.03(4) of the Rules of Civil Procedure, which provide that a witness may be examined at the hearing of a motion, remain available to the parties on the intervention motion – a point that I expressly noted in my decision on the intervention motion.
[49] In short, in my view, each of the three lawyers for the different responding parties advanced differentiated submissions on behalf of their respective clients and brought a distinct view to the issues involved in the hearing of the intervention motion. To the extent that there was some minimal and unavoidable repetition of points, it certainly was not to such an extent that should disentitle or otherwise prejudice those responding parties to their separate claims for costs.
[50] Having said all of that, I am concerned about one area of apparent duplication of work, being the amount claimed by CP Rail for the preparation of its factum on the intervention motion. In that regard, I note the following:
a. For the work involved in connection with the review of other parties’ factums and preparation of CP Rail’s factum, CP Rail claimed 73.1 hours of work, amounting to $53,304.50 on the basis of the lawyers’ actual rates or $31,982.70 on the basis of the lawyers’ partial indemnity rates.
b. In comparison to the 73.1 hours claimed by CP Rail, counsel for Andrew recorded 16 hours of work in connection with the preparation of his factum, and counsel for Lakeshore recorded 17.4 hours of work for the same.
c. The 73.1 total hours claimed by CP Rail in connection with the preparation of their factum is comprised of the separate claims of four different legal professionals. Even excluding the time of the law clerk, I note that Mr. Rae recorded 15 hours and Mr. Aery recorded 16.4 hours. Again, each of those amounts, just in themselves, is comparable to what counsel for each of the other two responding parties incurred in connection with the preparation of their respective factums.
d. Of the 73.1 total hours claimed by CP Rail for preparation of their factum, more than one-half of that total is comprised of the 36.7 hours claimed for the work done by Mr. Robin P. Roddey. I make five observations.
i. Mr. Roddey’s actual hourly rate is $955. That is the highest hourly rate claimed by CP Rail on behalf of any of its lawyers engaged on this file. Hence, when the factum of the proposed intervenor singles out the hourly rates of “$955-$660”, it is quoting Mr. Roddey’s hourly rate on the high end.
ii. Consistent with his hourly rate, Mr. Roddey was called to the Ontario Bar in 1996 and, to date, has some 29 years’ experience at the Bar. He has more than twice the years of experience of any other legal professional who performed work in connection with the preparation of CP Rail’s factum on the intervention motion.
iii. A review of CP Rail’s cost outline indicates that the only work charged by Mr. Roddey was performed in connection with the preparation of the factum. It appears that was his sole task.
iv. That is consistent with the fact that while I have been involved with this litigation since 2022, having been assigned by then R.S.J. Thomas to be the trial judge for these two related actions, I have never had the pleasure of meeting or encountering Mr. Roddey on this file. He did not appear as co-counsel with Mr. Rae on the argument of the intervention motion. And, while I stand to be corrected, I do not believe Mr. Roddey has ever appeared before me in connection with this proceeding at all.
v. With some 29 years’ experience, Mr. Roddey’s 36.7 hours logged in connection with the preparation of CP Rail’s factum is more than double than the 16.4 hours incurred by Mr. Avery, the most “junior lawyer” on the file, who has 5 years’ experience, having been called to the Ontario Bar in 2020. That is, at first glance, it does not appear that the factum of CP Rail was prepared in accordance with the more common work-assignment structure, whereby the more junior lawyer on the file performs the lion’s share of the work in drafting the factum, and the more senior lawyers perform a more supervisory, reviewing, and editorial role.
[51] I am acutely aware of the fact that it is not for me to tell any law firm how to staff their files. It goes without saying that they are at liberty to assign their legal professionals as they think fit. If they believe it is appropriate to parachute in a senior research lawyer to head up or play a major role in the preparation of a factum on an important intervention motion, that is for the law firm to decide. That is an issue as between the law firm and its client, and not for the court.
[52] That said, it is a wholly separate question as to whether the unsuccessful party on an intervention motion should be made to financially account for all of that same law firm’s decisions as to how they staff their files. Just because a law firm or lawyer and their client agree that a certain service is necessary does not mean that the opposing party should be held to pay for it.
[53] At the end of the day, the question for the court is what is fair, reasonable, and proportionate in terms of a cost award. On the material before me, I am not satisfied that CP Rail’s claim for 73.3 hours (or $31,982.70) for the preparation of a factum is justifiable in all of the circumstances, particularly when counsel for the other opposing parties claimed just 16 hours and 17.4 hours for the preparation of their client’s respective factum.
[54] For all of these reasons, in all of the circumstances of the instant case, I find that CP Rail’s claim for 73.3 hours (or $31,982.70) in connection with the preparation of its factum represents time spent that is “so grossly excessive as to be obvious overkill.”
[55] Even if I were to back out the monetary value of all of Mr. Roddey’s logged work, that would still leave the CP Rail claiming $10,000 or 36.4 hours of work on the preparation of their factum when, again, counsel for Andrew spent just 16 hours and counsel for Lakeshore spent 17.4 hours. In other words, even backing out all of Mr. Roddey’s 36.4 hours, the claim of CP Rail for preparation of its factum still represents more than the total hours claimed by both of its co-counsel on behalf of the other two responding parties combined.
[56] Having considered, inter alia, the submissions of all of the parties, the relevant factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, and the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, I find that:
a. In connection with the claim of CP Rail, the amount of $34,000 for fees, $4,420 for HST, and $2,133.48 for disbursements, for an all-inclusive total of $40,553.48,
b. In connection with the claim of Andrew, the all-inclusive amount of $16,276.61, and
c. In connection with the claim of Lakeshore, the all-inclusive amount of $20,110.95,
represents a fair, reasonable, and proportionate costs award to each of the responding parties in the circumstances of the intervention motion.
Conclusion
[57] Therefore, there shall be an order that the proposed intervenor shall pay the costs of its failed intervention motion to the opposing parties within 30 days, fixed in the all-inclusive amount of $40,553.48 payable to CP Rail, in the all-inclusive amount of $16,276.61 payable to Andrew, and in the all-inclusive amount of $20,110.95 payable to Lakeshore.
J. Paul R. Howard
Regional Senior Justice
Released: February 26, 2025