



COURT OF APPEAL FOR ONTARIO

CITATION: Macleod v. Marshall, 2019 ONCA 955

DATE: 20191204

DOCKET: C65418

Sharpe, van
    Rensburg and Thorburn JJ.
A.

BETWEEN

Roderick MacLeod

Plaintiff (Respondent)

and

William Hodgson Marshall,

The Basilian Fathers of Toronto
,

The Sudbury Catholic District School Board,

The Roman Catholic Episcopal Corporation of

The Diocese of Sault Ste. Marie

Defendant (
Appellant
)

Chris T. Blom and Susan Metzler, for
    the appellant The Basilian Fathers of Toronto

Paul Pape, Shantona Chaudhury, and
    Cristina Senese for the respondent Roderick MacLeod

Heard: September 6, 2019

On appeal from the judgment of Justice Arthur
    M. Gans of the Superior Court of Justice, sitting with a jury, dated April 26,
    2018 and from his order dated August 29, 2018, with reasons reported at 2018
    ONSC 5100.

COSTS
    ENDORSEMENT


[1]

On
    appeal, The Basilian Fathers of Toronto (the Appellant) took the position
    that the jury instruction on how to assess damages for past income loss was
    wrong, the punitive damages award was excessive, and prejudgment interest ought
    not to have been awarded at the rate of five percent for non-pecuniary damages.
    They also raised a fourth issue which was abandoned prior to the hearing of the
    appeal.

[2]

The
    entitlement to and quantum of damages for loss of income and punitive damages
    were upheld, but the award of prejudgment interest was not.

[3]

The
    parties agree that the Respondent is entitled to disbursements in the amount of
    $3,683.21. The parties do not agree on the quantum to be awarded to the
    Respondent for fees or the fee scale of the costs award.

[4]

The
    Appellant claims fees should be awarded on a partial indemnity scale, while the
    Respondent claims fees should be awarded on a substantial indemnity scale in
    the amount of $179,660.31, including disbursements and HST. The Respondent notes
    that the
Victims Bill of Rights
, 1995, S.O. 1995, c. 6 (the Act)
    creates a presumption that substantial indemnity costs will be awarded unless
    the judge considers that to do so would not be in the interest of justice.

[5]

We
    have considered the factors set out in s. 57 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg 194, in particular, the importance of the
    issues, the conduct of the parties, the fact that the appeal was neither
    improper nor vexatious, and the amount the losing party could reasonably expect
    to pay. We have also taken into account the provision in s. 4(6) of the Act.

[6]

A
    substantial award was made at trial for general damages, punitive damages,
    aggravated damages, future treatment and income loss.

[7]

Liability
    and vicarious liability were admitted prior to trial and funding was provided for
    the Respondents psychological treatment upon learning of the claim. Moreover,
    the Appellant did not appeal the jury award of general damages, treatment
    expenses, or trial costs assessed on a substantial indemnity basis.

[8]

The
    issues pursued on appeal were important. This is one of the first cases in Ontario
    to instruct a jury on the manner in which to assess a claim for loss of income in
    a case involving a historical sexual assault.

[9]

The
    Appellant was unsuccessful on the appeal of the first two issues but successful
    on the appeal of the third issue of prejudgment interest.

[10]

The costs award sought does not reflect any duplication of time
    given that three counsel worked on the appeal.

[11]

It is also important to note that the fees sought by the Respondent on
    appeal are disproportionate to the amount granted at trial. At trial, the
    Respondent was awarded $298,000.00 plus HST in substantial indemnity costs
    minus $3,078.33 plus HST  the hearing lasted thirteen days, covered five
    issues, and involved twelve witnesses. The Respondent now seeks $179,660.31 for
    a hearing that lasted less than one day and addressed three issues.

[12]

For these reasons, we believe a costs award of $179,660.31 would not
    be in the interest of justice. However, in view of the issues outlined above,
    especially the Act and the presumption that substantial indemnity costs are to
    be awarded unless to do so would be contrary to the interest of justice, we
    award substantial indemnity costs in the amount of $100,000, inclusive of all
    taxes and disbursements to the Respondent.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

Thorburn J.A.


