Date: 20070928
Docket: T-1427-06
Citation: 2007
FC 976
Ottawa, Ontario, September 28, 2007
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
JAZZ AIR LP
Applicant
and
TORONTO PORT AUTHORITY
Respondent
and
CITY CENTRE AVIATION LTD., REGCO HOLDINGS
INC., PORTER
AIRLINES INC., and ROBERT J. DELUCE
Interveners
REASONS FOR ORDER AND ORDER
[1]
On
June 12 of this year I issued an Order in this file in which, while finding no
error of law or fact on the part of the case management prothonotary, I set
aside an Order which she had made dismissing the applicant's application for
judicial review and substituted therefor an Order converting that application
into an action. I stated that the respondent and the interveners should have
their costs of the motion before the prothonotary and sought written
submissions on that point.
[2]
Those
submissions have now been received.
[3]
The
respondent and the interveners each ask for costs on a solicitor and client
basis. The respondent submits a bill of costs for a little less than $250,000;
for its part the interveners' bill of costs is for over $160,000.
[4]
The
applicant submits that costs should not be awarded on a solicitor and client
basis and that, at best the respondent and the interveners should receive only
costs assessed on Column V of the Tariff. After making some necessary but
relatively minor adjustments to the parties' calculations I estimate that a
lump sum award on that basis would come out to approximately $28,000 for the
respondent and $23,000 for the interveners. While I have no doubt that a lump
sum award is appropriate in this case so as to save the parties the trouble and
expense of a detailed costs assessment, I have concluded in the circumstances
that first, the respondent and the interveners should receive identical costs
awards, and second, that such awards should be on a solicitor and client basis.
[5]
The
first of those conclusions is based on the fact that both of them adopted
similar positions in the motion before the prothonotary. What I view as the
fortuitous circumstance that one set of lawyers seems to have spent more time
and employed more bodies in achieving the same result does not seem to me to be
a proper basis for making distinctions between them.
[6]
As
to the second conclusion, in arguing against a solicitor and client award the
applicant places much emphasis on the fact that in my Reasons of June 12, 2007,
I did not make a specific finding that the applicant's conduct had been
“reprehensible, scandalous, or outrageous” (TMR Energy Ltd. v. State Property
Fund of Ukraine, [2005] FCA 231. While that is true it is also irrelevant
since I specifically reserved the question of costs until the present time. I
also made it quite plain that I thought the costs award should be heavy, that
it should penalize the applicant and reflect the abusive nature of its conduct
and I quoted with approval (at paragraph 14) the prothonotary's comments at
paragraph 38 of her Reasons which in my view describe conduct which manifestly
meets the criteria for a solicitor and client award of costs.
[7]
That
said, I do not think that it serves any useful purpose to refer to the amounts
awarded by other judges, or even by myself, in other cases and other
circumstances. Each case is a matter for the exercise of individual judgment
and discretion and as I said in another context in this very case, “a
discretionary decision is one respecting a question on which by definition two
equally reasonable people may, without error on the part of either one, reach
diametrically opposed conclusions”.
[8]
The
primary purpose of the Order which I propose to make here is not to indemnify
the respondent and the interveners for their actual disbursed costs, especially
since I consider both of their claims in this regard to be well beyond what
would be reasonable. Rather the purpose is dissuasive. The applicant and others
who may be of like mind must know that conduct of the kind here indulged in has
consequences.
[9]
The applicant
is an affiliate of a very large corporation with apparently very deep pockets
and a dominant market position which is seeking to prevent a much smaller
competitor from establishing itself in an important segment of the market.
While that may be, I suppose, a legitimate business purpose the Court must make
it clear that it will not allow its processes to be abused in pursuit of it. I
would fix the amount of the costs to be paid by the applicant in a total of
$100,000 to be divided equally between the respondent and the interveners.
ORDER
THIS COURT ORDERS that
The applicant
shall pay to each of the respondent and the interveners costs in the sum of
$50,000 payable forthwith and in any event of the cause.
“James
K. Hugessen”
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