) ) MARK GRADY Plaintiff – v. –, 2013 ONSC 2568

CITATION : Grady v. Ontario (Community Safety and Correctional Services) , 2013 ONSC 2568 COURT FILE NO.: 12-53385 DATE: 2013/05/07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) MARK GRADY Plaintiff – and – THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF COMMUNITY AND CORRECTIONAL SERVICES), ONTARIO PUBLIC SERVICE EMPLOYEES UNION and ROBERT RANGER Defendants ) ) ) ) ) ) ) ) )) ) ) ))))) John H. Yach, for the Plaintiff Donald K.

Eady/Jessica Latimer, for the Defendants Ontario Public Service Employees Union and Robert Ranger ) ) HEARD: November 28, 2012 and January 18, 2013 DECISION ON COSTS MCNAMARA, J. [ 1 ] The Defendants motion to strike the Plaintiff’s statement of claim was heard by myself on November 28, 2012 and January 18, 2013. The Defendant union and the Defendant Robert Ranger were successful on the motion and seek costs. I received written submissions both on behalf of those Defendants and the Plaintiff, and my decision on costs follows. [ 2 ] The first issue is, of course, entitlement.

The Defendants were successful on the motion, and in my view there are no circumstances that would disentitle them to an order for costs. That leaves the issues to be determined as the scale of costs and quantum. [ 3 ] Dealing firstly with scale, the case law is clear that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10 where substantial indemnity costs are explicitly authorized. The other is where the losing party has engaged in behaviour worthy of sanction.

Neither of those circumstances apply here, and thus the scale will be partial indemnity. [ 4 ] In terms of quantum, Mr. Yach, counsel for the Plaintiff, takes no issue with the hourly rates sought by Defendant’s counsel, nor do I. Those rates set Mr. Eady’s partial indemnity rate at $187.00 per hour and Ms. Latimer at $110.00. [ 5 ] Mr. Eady indicates he spent a total of 61.10 hours, while Ms. Latimer indicates she spent 78.40 hours. In exercising my discretion under

section 131 of the Court of Justice Act to award costs, I must take into account the factors set forth at rule 57.01(1) of the Rules of Civil Procedure . In fixing an appropriate quantum I must be guided by the overwriting principle of reasonableness and fairness, and that in deciding what is fair and reasonable the expectation of the parties is a relevant factor. I must also have regard to principles of proportionality. While I accept that Mr. Eady had a lead role on this motion, between he and Ms. Latimer they spent 138.5 hours.

That for a two-day motion where reasonably basic principles were involved from the perspective of their clients. The time spent seems somewhat excessive and beyond what might reasonably be expected by an opposing party. By way of an illustration, the time

spent by Ms. Latimer attending here in Ottawa on the motion hearing dates is not something a losing party would reasonably expect to have to pay. While undoubtedly attending was a benefit to her training as an advocate, she played no active role in the hearing and again the losing party should not be expected to pay for that. I am prepared to allow Mr. Eady’s time as claimed but only one half of Ms. Latimer’s. Doing some calculations and rough rounding of numbers, I will allow costs to the successful Defendants on a partial indemnity basis of $15,000.00 plus HST and disbursements.

In terms of those disbursements, any associated with Ms. Latimer’s travelling to the hearing in Ottawa are specifically disallowed. McNamara, J. Released: May 7, 2013 CITATION : Grady v. Ontario (Community Safety and Correctional Services) , 2013 ONSC 2568 COURT FILE NO.: 12-53385 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MARK GRADY Plaintiff – and – THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF COMMUNITY AND CORRECTIONAL SERVICES), ONTARIO PUBLIC SERVICE EMPLOYEES UNION and ROBERT RANGER Defendants DECISION ON COSTS McNamara, J. Released: May 7, 2013