Court File and Parties

Court File No.: CV-22-0046-00 Date: 2025-08-08 Ontario Superior Court of Justice

Between: David Brian Cavner, Plaintiff – and – Lakehead District School Board, Defendant

Counsel: L. Kampela, for the Plaintiff R. Howe, for the Defendant

Heard: In writing.

The Honourable Mr. Justice S. J. Wojciechowski

Decision on Costs

[1] A motion for summary judgement brought by the defendant, Lakehead District School Board ("the Board"), was heard on March 17, 2025. My decision dated June 13, 2025 dismissed that motion in favour of the plaintiff, David Brian Cavner.

[2] The parties have been unable to agree on costs. I have considered their written submissions, including the costs outline provided by both parties. This is my decision on costs.

[3] Based upon the plaintiff's position on costs submitted in writing, the plaintiff seeks $22,322.50 on a partial indemnity basis, or alternatively $34,446.63 on a substantial indemnity basis, both inclusive of HST.

[4] The Board maintains that if costs are to be awarded to the plaintiff, then these should be payable on a partial indemnity basis in the amount of $10,551.37 inclusive of HST.

[5] Costs awards address a number of important principles. They partially indemnify successful litigants for the costs of litigation, they encourage settlement, and they discourage and sanction inappropriate behaviour. An award of costs should reflect a fair and reasonable amount, as determined by the judge hearing the matter, which an unsuccessful party should pay. It is not meant to be an exact measure of the actual costs of the successful party. In considering what a fair and reasonable amount should be, a court should consider what the unsuccessful party should expect to pay in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario at para. 26.

[6] Costs awards are entirely within the discretion of the judge hearing the matter: section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In addition to the result in the proceeding and any offers to settle which were exchanged, Rule 57.01 sets out guidelines for the court to consider when exercising its discretion.

[7] A successful party is presumptively entitled to costs. Rule 57.03 addresses costs of a contested motion, and unless a court is satisfied that a different order would be more just, costs shall be fixed and payable within a period of thirty days.

[8] In considering the costs sought by the plaintiff, counsel having carriage of the matter has been practicing for 32 years, and based his client's claim for costs on his hourly rate being $950.00. While I make no assessment of this hourly rate within the context of litigation conducted in the GTA, litigation counsel in the Northwest Region do not charge for legal litigation services at this hourly rate, notwithstanding their level of experience. Lawyers who litigate in the Northwest Region should expect to be compensated at hourly rates which reflect local practice and which party litigants would expect to pay. This is reflected, in part, in the wording of Rule 57.01(0.b).

[9] Based upon my review of the bill of costs submitted by the plaintiff, the bill of costs submitted by the Board, the absence of any offers to settle which need to be factored into the assessment of costs, the success of the plaintiff, and the factors in Rule 57.01(1), I find that $14,000 in costs, all-inclusive of disbursements and HST, on a partial indemnity basis, represents a fair, reasonable and proportionate award in the circumstances of this motion.

[10] Costs shall be payable within thirty days of this decision.

The Hon. Mr. Justice S. J. Wojciechowski

Released: August 8, 2025