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.
With files from Jeff Gray