Case Name:

Authorson (Litigation guardian of) v. Canada (Attorney

General)

Between

Authorson, and

Attorney General

[2002] O.J. No. 3660

Court File No. 99-GD-45963

Ontario Superior Court of Justice

Brockenshire J.

September 24, 2002.

(11 paras.)

Practice -- Costs -- Party and party costs -- Special orders -- Increase in scale of costs -- Costs of interlocutory proceedings -- Costs of motions or applications.

Ruling as to costs of a motion. The plaintiff Authorson was successful on the motion. The decision was upheld by the Divisional Court, and the Court of Appeal refused leave for a further appeal. Authorson sought costs of $27,824 on a substantial indemnity basis, submitting that the matter was without merit, did not advance the substantive litigation, and created needless expense.

HELD: Costs were fixed at $14,010 for preparation, $500 for counsel fees and $400 for assistance to counsel, plus disbursements. The motion raised important issues in a case conference setting and there was no bad faith. Therefore, the substantial indemnity scale was not warranted.

Counsel:

Messrs. Greenaway, Colautti and Sengbusch, for the plaintiffs.

Sheila Block and Frank Cesario, for the defendant.

1 BROCKENSHIRE J. (endorsement):-- I have, and have considered the written submissions of counsel re costs. Plaintiff's counsel seek $27,824.76 on a substantial indemnity basis for their work on this motion. Defence counsel argues that costs should be on the partial indemnity scale, and should be for less time and fewer people than claimed.

2 There is an initial issue. The first appearance on the matter was before Chief Justice LeSage. Plaintiff's counsel claim costs for that, and I would think they would have a good argument for that, as defence counsel arranged for that rather unusual attendance, which simply resulted in the matter being sent back to me, were it not for the fact that LeSage C.J. endorsed the record "no costs". That ends that part of the claim.

3 There is no issue as to the entitlement to costs on the motion before me. My decision, in favour of the plaintiff's position, was appealed to the Divisional Court, upheld there, and the Court of Appeal denied leave for a further appeal to it. The defence has conceded that the plaintiff is now entitled to costs. The issues are simply on what scale, and how much.

4 The reasons advanced for costs on a substantial indemnity basis are that the matter "... was without merit and ought not to have been brought ...", and further, it "... did not advance the substantive litigation ... lengthened the proceedings and created needless expenses".

5 I agree with the latter allegations, but do not see those as creating entitlement to substantial indemnity costs. The allegation of lack of merit can, if supported, sometimes lead to use of the solicitor - client scale, or its modern equivalent. However, my reasons for dismissing the motion extended for 52 paragraphs, and the reasons of Farley J. for the Divisional Court ran to 76 paragraphs, which itself indicates that the allegations made were treated seriously. The motion raised important issues, and in a relatively new setting - a case conference. Mr. Colautti had suggested bad faith, and improper motives in both the motion and its timing. That was not accepted by me or the Court above. Indeed, the Attorney General distanced the crown lawyers involved by retaining independent, and very expert, counsel to presumably advise on, and argue this motion. The Crown perceived that it had a valid point, and was entitled to put it before the court for its decision. The Crown relies on Edper Brascan v. 177373 Canada Limited (2001), 53 O.R. (3d) 331, to which I would add McBride Metal Fabricating Corp. v. H & W Sales Company Inc., 59 O.R. (3d) 97 (C.A.).

6 I conclude that the substantial indemnity scale is not warranted.

7 The defence objects to the claims for counsel fees for 3 lawyers, 2 of which gave affidavits, and attendance fees for a junior and student. Throughout in this complex case, Messrs. Colautti, Greenaway and Sengbush have divided up the work, each dealing with a part of it. This motion, which was wide-ranging, touched on the areas being dealt with by each, and involved allegations of words or deeds when all or some of them were present. In my view, the reasoning behind not having the person who swears an affidavit argue upon it, has little application in a motion such as this, being argued before the judge who is the subject of the allegations. Plaintiff's counsel had to be able to respond to not only the positions being put forward by the moving party, but to questions from the bench. The motion was an important one for the Class. I conclude that there should be counsel fees allowed for all 3 counsel.

8 The costs grid speaks of fees "up to ..." certain amounts. This was an important motion in a complex case, and some of the issues were novel. However, I do not think this motion calls for the maximum counsel fee. I would grant a counsel fee of $2000 for lead counsel, and $1500 for each of the other two.

9 The defence further objects to fees for the junior and the student that were at the motion. I note that the charges for each were for a half day only. No doubt they provided valuable assistance to counsel, but they should not be paid counsel fees. I award $200.00, or $50.00 per hour for the student, and further $200.00, or $100.00 per hour for Ms. Montello.

10 The defence objects to the time spent and the rates suggested for preparation. The preparation was all done by the counsel appearing, which in the circumstances would be the most efficient and cost effective way to do it. There is nothing in the materials to suggest the time spent was inordinate, and the court should not second guess what appeared reasonable to counsel, especially counsel who were successful, at the time. I accept the hours spent. The defence suggests $250.00 per hour. The claim is for $300.00, where the maximum is $350.00. This is a major case, and the motion was an important one. I accept the $300.00 claimed.

11 The result is that the costs are fixed at $14,010.00 for preparation, plus $5000.00 for counsel fees, plus $400.00 for assistance to counsel, in all $19,410.00, plus the undisputed disbursements of $54.45, plus GST of $1362.51, totalling $20.772.51, payable forthwith.

BROCKENSHIRE J.

cp/e/nc/qlrme