Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Toronto Transit Commission v. Michael Hickey, Ronald Howard Spaeth and Specbilt Enterprises Inc., CV-17-569281 (“the TTC Action”);
RE: Michael Hickey v. Toronto Transit Commission, CV-16-546770 (“the Hickey Action”);
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Giuseppe Agostino for the Toronto Transit Commission (“TTC”); Marc Lemieux for Michael Hickey; Kyle C. Armagon for Ronald Howard Spaeth and Specbilt Enterprises Inc.;
DECISION: March 6, 2026.
COSTS DECISION
1On March 6, 2026 I issued my ruling on this motion dismissing the TTC motion as it pertained to Mr. Hickey, which was the only remaining issue to be determined. Mr. Hickey agreed to a dismissal of his motion without costs given the result.
2In advance of the motion, the parties filed costs outlines. Mr. Hickey filed a costs outline for both motions that showed $51,320.08 in substantial indemnity costs. The TTC filed two costs outlines, one for the TTC motion showing a total of $29,257.89 in partial indemnity costs, and the other for the Hickey motion showing a total of $2,400 in partial indemnity costs.
3Mr. Hickey wants his claimed substantial indemnity costs of $51,320.08. After reviewing Mr. Hickey’s costs outline, I found this position somewhat puzzling. Mr. Hickey claims $5,904.08 for disbursements but the costs outline shows disbursements totaling only $339. I will assume that this is a mistake and that the real Hickey claim for substantial indemnity costs is $45,755.
4The basis for this claim is that, before he prepared any motion material, on December 3, 2025, by email Mr. Hickey offered to have the TTC motion against him dismissed on a without costs basis, given the lack of merit to that motion. There was no response. Later, on February 24, 2026, a few weeks before the motion, Mr. Hickey offered again to have the TTC motion against him dismissed with costs to be determined in the TTC action. The only response the TTC provided was an email on March 3, 2026 (two days before the motion) offering the have the TTC motion as it pertained to Mr. Hickey adjourned. That was understandably rejected.
5TTC does not dispute that Mr. Hickey should get costs given his success. It submits that the costs order should be in the $5,000 to $10,000 range. TTC argues that the Hickey costs outline is inflated by work concerning TTC affidavits that were later withdrawn. I agree with Mr. Lemieux that the Hickey affidavits were only in response to TTC affidavits and factums, some of which were late.
6TTC argues that there should not be an award of substantial indemnity costs as its conduct was not “reprehensible.” I do not agree. TTC alleged that Mr. Hickey made a misrepresentation under oath that he did not receive payment from the co-defendants. It then brought a motion based on that position alleging an exception to the issue estoppel doctrine due to this alleged misrepresentation. There was simply no evidence in its material to support this position. There was no evidence Mr. Hickey received any of the dividend payouts the TTC discovered.
7TTC should have critically examined its position in light of its evidence when Mr. Hickey made his December 3, 2025 offer explicitly pointing out the baselessness of the TTC motion. TTC apparently did not do that. It did not even respond. It then had another chance to abandon its motion against Mr. Hickey when the February 24, 2026 offer was made. The TTC waited until two days before the motion and then just offered for some reason to “adjourn” the motion as it related to Mr. Hickey.
8The TTC decision to pursue Mr. Hickey with a disclosure motion based on a baseless allegation of misrepresentation under oath and then persisting in the motion despite two opportunities to end it without costs, is the definition of “reprehensible” conduct. Such conduct has the features of a bullying tactic that the court must frown on. I award Mr. Hickey substantial indemnity costs of this motion.
9Having made this determination, I nevertheless find that the Hickey claim is excessive. I said that during argument on March 5, 2026. First, Mr. Hickey brought his own motion that he did not pursue in the end. This needs to be reflected in the award. Second, the number of hours of legal work shown in the Hickey costs outline (82.25 hours) far exceeds the hours shown in the TTC costs outlines for both motions (62.15 hours). Mr. Agostino had to deal with the complexities of the TTC motion as it concerned Mr. Spaeth and Specbilt, the part of the motion on which the TTC was successful in the end. Given these two factors, I think that the number of hours shown on the TTC costs outlines at Mr. Lemieux’s substantial indemnity rate represents a fair and reasonable measure of what the TTC could reasonably expect to pay to Mr. Hickey in light of the result and its conduct.
10I have decided to award Mr. Hickey $37,000 in substantial indemnity costs from the TTC, which amount must be paid by the TTC to Mr. Hickey on or before thirty (30) days from the date of this award.
DATE: April 21, 2026
ASSOCIATE JUSTICE C. WIEBE