2013 ONSC 4328, 2013 ONSC 4328

CITATION : Bodick v. R. and McKelvey, 2013 ONSC 4328 COURT FILE NO.: 4576/08 DATE: 20130621 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) SHANNON BODICK ) ) ) Peter Doucet, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ANNETTE McKELVEY ) ) ) H. MacKay and J. Glick, for the Defendants ) Defendants ) ) ) ) HEARD: June 6, 2013 D E C I S I O N O N C O S T S WILCOX, J. [ 1 ] The court granted the Defendants’ motion for

summary judgment dismissing the Plaintiff’s claim in a decision released on April 17, 2013. The parties were invited to make written cost submissions within a limited time. The Plaintiff’s were filed out of time and have not been considered. [ 2 ] I see no reason why costs should not follow the event in this matter. [ 3 ] Counsel for the Defendants sought costs of $55,662.16, including $50,000 in fees and $5,662.16 for disbursements. Although counsel of their experience would command substantially higher hourly rates, the rate of $192 has been used in their calculations.

The total fees at that rate were $68,984.81. That was said not to include time spent on having second counsel at cross-examinations and at the motion for

summary judgment, on research by students, and in consultations with senior counsel, reducing the fees by about $15,000. Even so, the fees claimed were further reduced to $50,000.

[ 4 ] Clearly, counsel for the Defendants was very conservative in its request for costs, which amount only to a partial indemnity. [ 5 ] In deciding this matter, the provisions of s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure with its various factors have been taken into account, as has the case law filed. The court takes no issue with defence counsel’s submissions where they touch on the relevant factors.

In particular, this proceeding was ill-advised, unduly prolonged and, at times, conducted in an abusive fashion. [ 6 ] The ability of the Plaintiff to pay a substantial cost award is a concern, but this was held by E. MacDonald J. in Robb v. St. Joseph’s Health Care Centre [1999] O. J. No. 1461 (S.C.J.) not to be a relevant consideration. [ 7 ] Therefore, costs are to be paid by the Plaintiff to the Defendants in the amount of $55,662.16. Nothing was claimed for HST, I assume, because the defence counsel are government employees.

If I am wrong regarding this, the costs awarded shall be inclusive of HST. ___________________________ Justice James A. S. Wilcox Released: June 21, 2013