Kevin Mitchell-Gill

Costs ruling following a jury trial in which the plaintiff succeeded on a malicious prosecution claim but failed on wrongful arrest and excessive force claims.

The jury awarded $63,900 in damages, which exceeded the plaintiff's Rule 49 offer to settle.

The court applied a 20% reduction to counsel fees to reflect divided success, deducted $20,000 for the use of two senior counsel, and disallowed expert disbursements of $19,700 related to the unsuccessful claims.

The court rejected a distributive costs approach and held that the plaintiff was entitled to substantial indemnity costs from the date of the Rule 49 offer, awarding total costs of $180,220.70.

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging that the delay between the laying of charges for criminal negligence causing death and bodily harm and the scheduled trial date was unreasonable.

The court applied the framework from R. v. Morin and analyzed the length of delay, waiver, reasons for delay, and prejudice to the accused.

Much of the delay was attributed to inherent complexity, defence availability, and institutional factors, with a smaller portion attributable to the Crown.

The court found no clear prejudice to the accused and concluded the delay was not unreasonable in the circumstances of a complex case involving numerous witnesses and technical evidence.