Rarely is the Registrar of the Supreme Court of Canada required to give reasons for the taxation of costs on applications for leave to appeal. Parties can often reach agreement on costs, as party-and-party costs under the Schedule B Tariff and Rule 83 of the Rules of the Supreme Court of Canada are typically clear and relatively inconsequential. Two exceptions recently arose in Ontario Federation of Anglers and Hunters v. Minister of Natural Resources and Forestry (S.C.C. 37772 and S.C.C. 37773). The Court dismissed two applications for leave to appeal, each with costs on a solicitor-client basis to the respondents other than the Minister (who was granted party-and-party costs), and those respondents claimed costs totaling $46,413.59. Within that, they claimed about 45 times the usual counsel fees under the Tariff, notwithstanding that the application responses consisted of two letters of two pages each. The Registrar found this to be unreasonable.

Background

The applicants sought leave to appeal from the decision of the Court of Appeal for Ontario to deny leave to appeal from a lower court decision. The Supreme Court has jurisdiction to grant “leave-on-leave”, and has done so on occasion, but this jurisdiction is exercised only rarely and with reluctance and caution. The relevant “leave-on-leave” authorities are well-known and can be found, among other places, in Sopinka and Gelowitz on the Conduct of an Appeal, in Chapter 1, at §§1.168 to 1.172. As the Registrar held, “this is generally not a complicated issue for counsel to address in response to applications for leave brought in this Court” (emphasis in the original).

The respondents cited the leading authority (MacDonald v. City of Montreal) in their two-page letter responses. Such abbreviated responses are expressly contemplated under Rule 27 and are particularly appropriate where the lack of public importance is clear without much elaboration. The respondents chose this procedural vehicle—filing a two-page letter response on each of the two leave applications—and for these four pages claimed solicitor-client costs totaling $46,413,59.

Guidance on solicitor-client costs at the Supreme Court

The Registrar taxed the respondents’ costs at only a fraction of what they sought ($5,672.59) and, in doing so, provided useful guidance on the meaning of “solicitor-client costs” at the Supreme Court. After the Court dismissed the leave applications “with costs on a solicitor-client basis”, the successful respondents (other than the Minister) claimed costs on a full indemnity basis—that is, they claimed from the applicants the full amount billed for all 160 hours of docketed counsel time, including the 71 hours docketed by very senior counsel in responding to the two leave applications.

The Registrar rejected the respondents’ position: “The awarding of costs on a solicitor and client basis is something less than ‘solicitor and his own client costs’ or full indemnity […] The case law is settled that costs awarded on a solicitor and client scale shall be assessed on the basis of quantum meruit” (emphasis in original). Where solicitor-client costs are awarded, the Registrar will tax costs on the basis of what is “fair and reasonable in the circumstances”. This will be informed by the principle that parties have an obligation to do their utmost to minimize litigation costs, and the non-exhaustive criteria articulated by the Court of Appeal for Ontario in Cohen v. Kealy & Blaney:

  • the time expended by the solicitor,
  • the legal complexity of the matters to be dealt with,
  • the degree of responsibility assumed by the solicitor,
  • the monetary value of the matters in issue,
  • the importance of the matter,
  • the degree of skill and competence demonstrated by the solicitor,
  • the results achieved, and
  • the ability to pay and expectations as to the amount of costs. [(1985), 26 C.P.C. (2d) 211]

Applying the Cohen factors, the Registrar determined that counsel fees of $2,000 would be fair and reasonable for each of the two applications, and also taxed disbursements ($778.72) and counsel fees ($893.87), for a total of $5,672.59. Central to this decision was the Registrar’s view that responding to the ‘leave-on-leave’ applications was not complicated and relatively straightforward. In fact, the respondents addressed the substantive issues in just over half a page in each of the two letters. The Registrar held that “opting as they did to have such senior lawyers work so extensively on these files was for the [respondents] to decide”, but it was “not reasonable […] to expect opposing parties to pay for such high fees, considering the relative straightforward legal issues involved.”

The Registrar’s reasons are not posted online, but are available from the Court, or from the authors.