Man who took Toronto Mayor to court over conflict of interest should pay $100,000-plu

Man who took Toronto Mayor to court over conflict of interest should pay $100,000-plus legal bill, Rob Ford’s lawyer says

Rob Ford’s lawyer ask for Mayor’s legal bill to be paid by Paul Magder | Posted Toronto | National Post

In court documents, Mr. Ford’s lawyer Alan Lenczner argues that the request for $116,044, including related fees, is “entirely reasonable,” noting that Paul Magder had asked the mayor to pay his lawyer’s bill after he won round one of the legal fight, to the tune of more than $125,000 for lawyer hours alone.

Justice Charles Hackland ruled last year that Mayor Ford broke provincial law and should be ousted for voting to overturn an order he reimburse donations made by lobbyists and a company to his football charity. The city’s integrity commissioner had deemed those donations to have been improper.

Clayton Ruby and associates represented Mr. Magder pro bono, but after winning the initial application asked the mayor to cover their costs, which totalled $150,746 with disbursements and HST.

Judge Hackland never ruled on costs and his decision was subsequently overturned by a Divisional Court, which decided the city did not have the authority to impose the sanction it did.

“Not only are the costs being sought by Ford reasonable for the application, the leave to appeal and the appeal, they were within reasonable expectation of the applicant Paul Magder,” Mr. Ford’s submissions states, because Mr. Magder bore the risk of an adverse costs award in bringing forward the application.

“Thus Paul Magder understood even before the inception of his application that, if he was successful, his lawyers would receive costs from Ford which they would keep in their entirety. He also understood that, if he was unsuccessful, he would have to indemnify Rob Ford for his costs on a partial indemnity basis but not be required to pay his own lawyers.”

Mr. Magder has not filed his cost submissions. In justifying his bill following the first judgment, Mr. Ruby pointed to the “significant research” his team had to undertake, in part because the wording of the Municipal Conflict of Interest Act is “somewhat vague.”

Both Mr. Ruby and Mr. Lenczner claimed a rate of $350 an hour, with associates billing at a lower amount.

Usually, Ontario courts make the loser pay, but under partial indemnity, it is often 30% or 40% of what a lawyer would have ordinarily billed, according to municipal lawyer John Mascarin. He said it’s not unusual for a lawyer who offered services pro bono to seek costs from a losing party. He said Mr. Magder may argue that he should not have to pay Mr. Ford’s costs on the grounds that the case was in the public interest.

In such cases, courts often order each party to bear their own costs, said Mr. Mascarin

Walter said:

Go for it Rob; get our money back.

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You mean his money. He paid for it.

Asking mayor
Requiring a private citizen to pay Mayor Rob Ford’s legal bill in his conflict-of-interest case “would be an embarrassment to the administration of justice,” say the lawyers representing the man who launched the high profile court challenge.

The Toronto mayor’s legal team says it cost more than $116,000 to fight his case, and after winning his appeal they are asking Paul Magder to pay up.

Mr. Magder’s lawyers, Clayton Ruby and Nader Hasan filed their response Monday, arguing that their client should not be required to pay a single penny of Mr. Ford’s legal costs.

In making their case, the lawyers note that the law requires that a taxpayer – and only a taxpayer – bring the issue before the courts.

As such, they say, “It would be an embarrassment to the administration of justice if a government official were awarded costs against an ordinary taxpayer in a public interest case that was brought in complete good faith.” The action by Mr. Magder was not frivolous, the submission states, noting that it succeeded in an initial trial. That ruling was overturned on appeal because it “suffered from a jurisdictional flaw,” rather than because of any fault on the part of Mr. Magder, the lawyers argue.

Mr. Magder, who they characterize as “an ordinary, hard-working individual,” should not be asked to cover such a large legal bill. “A six-figure costs award against the respondent would be devastating,” they state.

While Mr. Magder is a private citizen, his lawyers note that as a public official the mayor will very likely have part if not all of his legal costs covered by insurance and the city’s indemnity programs.

City councillors were advised at their meeting last week that the mayor could be reimbursed for any portion of his costs not awarded by the court if he files an application.

The mayor has refused to comment on the cost issue, saying it is still before the courts.

As is normal in Canada’s loser-pays court system, Mr. Ford’s lawyer, Alan Lenczner, has filed his client’s legal bill with the Ontario Divisional Court, where the mayor won a reversal of a lower-court ruling that had ordered him out of office for violating conflict-of-interest rules.

The bill for $107,070 in legal fees and $9,335.12, including HST, for expenses such as photocopying, transcripts and phone bills, covers both Mr. Ford’s initial court fight, his request for leave to appeal, and his appeal. In all, two lawyers and two articling students were involved.

In his submission to Divisional Court, Mr. Lenczner says the costs are “entirely reasonable” noting that Mr. Ruby, acting for Mr. Magder, had asked for $150,746 in costs for just the initial fight before the Ontario Superior Court. Mr. Ruby has not submitted his costs for the Divisional Court case. His bill for the lower court case was not paid, as the decision was appealed.

Mr. Lenczner's costs are listed on a "partial indemnity basis," meaning the rates he charged the mayor are discounted. Normally, a lawyer like Mr. Lenczner – a highly regarded veteran litigator – would charge much more than the $350 an hour he lists in his submission on behalf of Mr. Ford.

Mr. Lenczner argues that his costs are within Mr. Magder’s “reasonable expectation” since Mr. Ruby states in his court submission that his client was bearing the risk of having to pay his opponent’s legal bills. Plus, Mr. Lenczner says, Mr. Ruby was acting pro bono, meaning Mr. Magder will not have to cover his own legal costs.

The Divisional Court could agree with the submitted bill, or it could disagree and order Mr. Magder to pay a smaller amount, or nothing at all, as his lawyers are arguing.

The mayor’s conflict-of-interest case centred on a council debate last year on a ruling by the city’s integrity commission in which Mr. Ford voted to let himself off the hook in repaying $3,150 in donations to his football foundation made by lobbyists at city hall.

The mayor had been ordered removed from office in November, but that ruling was overturned last month by the appeal court.

JamesBondo said:

I submit that when someone spends over $100k going after the mayor, his lawyers have informed him of the risks. Every dollar this ******* forks out is 1 less dollar Torontonians have to pay.

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They are required by Law to lay out the consequences of losing. Otherwise they could be held accountable. And dollars to donuts good Ol Clayton has that signed, countersigned, witnessed and blessed.

Niflmir said:

I'm not sure how reimbursements work... but, Ford was ruled to have broken provincial law and the appeal ruled that Magder did not have standing in the lower court. The case wasn't frivolous or malicious, Magder hasn't really lost the case, just been told that it should never have been heard in the first place.

In principle the lawsuit should have been terminated when it was filed if the standing issue is correct. In that case shouldn't the court be reimbursing both costs? Charging Magder twice for the court's mistake is the sort of thing that reeks of political corruption.

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Do you have a link where he was found to not have standing. The law calls for a Taxpayer to initiate the claim. The judge decided he had standing. It was overturned.
Judges make errors all the time and the Crown is not liable.

Niflmir said:

Yes, I have a link: OP.

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No where does it state that he did not have standing. He as a taxpayer initiated the case, not the City. That was your point, that the Appeal court ruled he did not have standing. He in fact did have standing. So link please.

Judge Hackland never ruled on costs and his decision was subsequently overturned by a Divisional Court, which decided the city did not have the authority to impose the sanction it did.