



COURT
    OF APPEAL FOR ONTARIO

CITATION: Charlesfort Developments Limited
    v. Ottawa (City), 2021 ONCA 542

DATE: 20210726

DOCKET: C67355

Doherty,
    Nordheimer and Harvison Young JJ.A.

BETWEEN

Charlesfort
    Developments Limited

Plaintiff (Respondent)

and

The
    Corporation of the City of Ottawa

Defendant (Appellant)

Alyssa Tomkins and Anne
    Tardif, for the appellant

Timothy J. Hill and Mark van
    Zandvoort, for the respondent

Heard: in writing

On appeal
    from the judgment of Justice Sally A. Gomery of the Superior Court of Justice,
    dated July 24, 2019, with reasons reported at 2019 ONSC 4460.

COSTS ENDORSEMENT

[1]

On June 11, 2021, we released our decision in
    which we allowed the appeal in this matter and dismissed the respondents
    action. We invited written submissions regarding the costs of the appeal and of
    the proceeding below.

[2]

We have now received and reviewed the written
    submissions of the parties. The respondent does not dispute the amount sought
    for the costs of the appeal in the amount of $54,390.06, inclusive of
    disbursements and HST. The respondent also does not dispute the fees sought for
    the proceeding below in the amount of $258,071.53 plus HST. Where the
    respondent does take issue is with respect to the amount of $566,620.01 sought
    by the appellant as disbursements for the proceeding below.

[3]

The single largest component of the
    disbursements sought is the amount of $478,860.28 for the fees of Deloitte
    & Touche, who were experts retained by the appellant. The respondent
    submits that these fees are not properly supported by the material filed and
    are, in any event, excessive. The first complaint was largely addressed when
    the appellant subsequently filed additional support for those fees.

[4]

The fees of experts are subject to a
    reasonableness test, just as are the fees of counsel. The fees of experts are
    not, however, subject to further reduction based on the distinction between
    substantial indemnity costs and partial indemnity costs:

3664902 Canada
    Inc. v. Hudson's Bay Co. (c.o.b. Bay Department Stores)
,
(2003), 169 O.A.C.
    283, at para. 17. Put another way, the fact that a party may have paid its
    expert an exorbitant fee for their services does not mean that the other party
    must pay that amount. The other party must only pay what the court views as
    reasonable for the services provided:
Yip v. HSBC Holdings plc
, 2018
    ONCA 626, 141 O.R. (3d) 641, at paras. 89, 91.

[5]

In considering the reasonableness of the expert
    fees, we have taken into account the complexity of this matter as well as the fact
    that the appellant was facing a multi-million dollar claim which could also
    have had precedential impact, if sustained. We are also aware that the expert
    fees, while emanating from one firm, actually comprised four experts within
    their account. In the end result, none of the experts gave evidence because the
    parties were able to come to a partial agreement on damages that obviated the
    need to call the experts. Among other things, the agreement meant that the
    trial judge was not called to determine if the appellant would be given leave
    to call more than three experts:
Evidence Act
, R.S.O. 1990, c. E.23,
    s. 12.

[6]

That said, a party is entitled to be paid appropriate
    amounts for expert reports reasonably necessary for the conduct of the
    proceeding, regardless of whether the expert is called to give evidence:
Harding
    v. First Associates Investments Inc.
,
[2003] O.J. No. 4652, at
    para. 49. We agree with that principle. The mere fact that the expert is not
    called does not mean that the expert report did not contribute to the
    advancement, or defence, of the claim. Indeed, an expert report may help
    resolve certain issues in the proceeding and thus promote settlement, or at
    least reduce the issues for trial. Indeed, that appears to have been what
    happened in this case.

[7]

Nonetheless, the fact that the expert was not
    called to give evidence is a factor that ought to be taken into account in
    determining the reasonableness of the overall fees charged.

[8]

We view the fees charged by Deloitte &
    Touche to be more than is reasonable for the other party to bear. We reach that
    conclusion, in part, by noting that the expert fees allowed to the respondent by
    the trial judge were about half what the appellant now claims. We also contrast
    the amount of fees charged by the experts to the fees to which counsel are
    entitled. While we recognize that the expert fees are, in essence, on a full
    indemnity basis whereas counsel fees are on a partial indemnity basis, the size
    differential is still noticeable. On that point, counsel must, of course, deal
    with all aspects of the claim whereas the experts tasks are more narrowly
    confined.

[9]

In the result, we award the appellant the costs
    of the appeal fixed at $54,390.06, inclusive of disbursements and HST. We award
    the appellant the costs of the proceeding below fixed at $700,000, inclusive of
    disbursements and HST.

Doherty
    J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


