2015 ONSC 1680, 2015 ONSC 1680

CITATION: Groia v. The Law Society of Upper Canada 2015 ONSC 1680 DIVISIONAL COURT FILE NO.: 288/13 DATE: 20150316 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: JOSEPH PETER PAUL GROIA v. THE LAW SOCIETY OF UPPER CANADA BEFORE: SACHS, NORDHEMER & HARVISON YOUNG JJ. COUNSEL: E. A. Cherniak, Q.C. & J. Akbarali, for the appellant J. T. Curry & J. E. Lilles, for the respondent HEARD: Written submissions ENDORSEMENT – COSTS [1] On February 2, 2015, this court released its decision dismissing Mr. Groia’s appeal from a decision of the Law SocietyAppeal Panel.

A cross-appeal by the Law Society was also dismissed. We invited written submissions on what the disposition should beof the costs of the appeal and cross-appeal. We have now received and reviewed those submissions. [2] The Law Society submits that it should receive costs of the appeal in the amount of $50,000. It bases this amount on a totalbill of costs of $67,130.49[1] but reduced by approximately one-third to reflect its lack of success on the cross-appeal. Mr.

Groiasubmits that there should be no award of costs on either the appeal or the cross-appeal or, alternatively, the Law Society should receivecosts of the appeal not to exceed $20,000 and that Mr. Groia should receive costs of the cross-appeal in the amount of 23,950.04 thatwould almost achieve the same net result. [3] In support of his submission that there should be no award of costs, Mr. Groia says that this proceeding involved matters ofpublic interest and also raised novel issues.

We accept that there was a measure of public interest (or at least the interest of the legalprofession) engaged by the appeal and that it raised matters that have not previously been considered by this court. That, by itself, doesnot dictate that costs are not to be awarded, however. As Spence J. said in Baldwin v. Daubney, (ON SC), [2006]O.J.

No. 3919 (S.C.J.) at para. 31: With this view of judicial discretion in mind, it is appropriate to regard the “novel issue” factor in respect of a costs awardnot as a rule requiring rejection of a costs award, but rather as a consideration to be taken into account in determining whether thereshould be a costs award and if so, in what amount. [4] Similarly, there is no rule that the first case to raise a particular issue should not attract a costs award. Someone always hasto be first and there is always a public benefit to having a court clarify any legal issue.

That reality does not mean, though, that no costsshould be awarded in all such cases. As Smith J. said in Sierra Club of Western Canada v. British Columbia (Chief Forester), (BC SC), [1994] B.C.J. No. 1713 (S.C.) at para. 25: I think there is a public benefit any time a court decision clarifies the law, but I do not think there is a general rule that nocosts should be awarded in all such cases.

[5] The fact is that Mr. Groia appealed the finding of professional misconduct and he lost. The principles or tests to be appliedin such situations may have been developed or refined by the decision of this court but that fact does not distinguish this appeal from anynumber of other appeals that raise important legal issues. Mr. Groia was unsuccessful in the result and we do not see any compellingreason why he should not bear the costs of his lack of success. [6] At the same time, we recognize that the Law Society cross-appealed and it was equally unsuccessful in that effort.

Ratherthan assess the costs of the appeal and the cross-appeal separately, and then net out the difference, we are of the view that the LawSociety’s lack of success on the cross-appeal should be reflected in a reduction of the costs award that the Law Society would otherwisereceive for its success on the main appeal. [7] In approaching the task of fixing costs, we are cognizant of the general principles applicable to that task. In particular, weare aware that costs should be fixed in an amount that is fair and reasonable – see Boucher v.

Public Accountants Council for theProvince of Ontario (2004), (ON CA), 71 O.R. (3d) 291 (C.A.). In that regard, we are cognizant of the general levelof costs awards made by this court for similar matters in terms of their complexity and length of hearing. [8] The appeal and cross-appeal took a total of two full days. The appeal consumed at least two-thirds or more of that time. Theissues on the cross-appeal were the focus of the submissions of the interveners. Mr.

Groia benefitted from the presence and participationof the interveners in terms, among others, of the time that he had to devote to the cross-appeal. [9] In the end result, we consider the amount sought by the Law Society for the costs of the total proceeding to be somewhathigher than we would assess those costs at but not excessively so.

We agree that a reduction of approximately one-third is an appropriatereduction for the unsuccessful cross-appeal. [10] With those considerations in mind, we award the costs of the appeal to the Law Society fixed in the amount of $30,000,inclusive of disbursements and HST, to be paid by Mr. Groia within thirty days. SACHS J. NORDHEIMER J. HARVISON YOUNG J. DATE: March 16, 2015