DATE: 20051201
COURT OF APPEAL FOR ONTARIO
LASKIN, CRONK and GILLESE JJ.A.
B E T W E E N :
LINDA EUTENEIER
Edward A. Ayers, Q.C. and Michael C. Smith for the appellants (respondents by cross-appeal)
Respondent (Appellant by Cross-appeal)
- and -
CHRISTOPHER LEE, KIRK LAMPMAN, CARLO MARAGNO, KIM DUNCAN, LINDA DEAN, MICHELLE FAURE, TOM MOORE, ROSLYN PALL, JODY WILSON, JEFF SIEMON, LINDA CRAWFORD, P.C. DRAPER, P.C. GAYNOR and HALTON REGIONAL POLICE SERVICES BOARD
Julian N. Falconer, Julian K. Roy and Suzan E. Fraser for the respondent (appellant by cross-appeal)
Appellants (Respondents by Cross-appeal)
Heard: March 29, 2005
On appeal from the order of Justices Edward Then, John MacDonald and G. Patrick Smith of the Superior Court of Justice, sitting as the Divisional Court, dated November 10, 2003, reported at [2003] O.J. No. 4239.
COSTS ENDORSEMENT
CRONK J.A.:
1In our reasons for judgment in this matter issued on September 19, 2005, we requested the parties to make written submissions concerning the costs of these proceedings. In so doing, we intended to invite costs submissions regarding the entire proceedings between the parties, including the costs of the trial, the proceedings before the Divisional Court and the appeal and cross-appeal before this court. We have now received and reviewed the parties’ costs submissions.
2The appellants were wholly successful before this court. The appeal was allowed and the cross-appeal was dismissed. Therefore, if the usual costs rule – that costs follow the event – is applied, the appellants would be entitled to recover their costs from the respondent, including their costs of the trial and Divisional Court proceedings. Those costs are substantial, approximating $270,000 on the partial indemnity scale. Nonethe-less, the appellants have indicated that they are prepared to accept an award of costs in the total amount of $150,000, for all levels of proceedings involving the respondent.
3The individual appellants are police officers and the corporate appellant is a public body. The appellants are charged with special statutory and common law duties in relation to members of the public. The respondent’s allegations of wrongdoing by the appellants were serious and numerous, involving assertions of intentional misconduct that impugned the professionalism of the appellants and the character and integrity of the individual appellants. In these circumstances, I regard the appellants’ expressed willingness to voluntarily compromise their costs claim against the respondent as reasonable and responsible, for which they are to be commended.
4However, I am also persuaded that the particular facts and context of this case warrant departure from the application of the usual costs rule and that no award of costs for any of the proceedings between the parties should be made. I reach this conclusion for several reasons.
5First, the issues raised by the respondent in her action concerned her interests in maintaining her dignity and privacy while she was detained in police custody and her constitutional rights under ss. 7 and 12 of the Charter of Rights and Freedoms. As this court stated in its reasons for judgment dated September 19, 2005, during the res-pondent’s detention, when she attempted to hang herself from her cell bars using her brassiere:
[H]er clothes were removed forcibly by two female police officers acting on the instructions of a senior officer. Thereafter, when the respondent took steps to prevent her continued surveillance in the cell by videocamera and refused the return of her clothes when they were offered to her by the police, she was handcuffed, while naked, to the bars of her cell. She remained in this position for approximately 20 minutes. Emergency blankets were then taped to the cell bars. During this interval, the respondent was potentially visible to passersby in the corridor outside her cell.
6Given these facts, I agree with the submission by counsel for the respondent that it was reasonable for the respondent to attempt to hold the appellants responsible for their conduct. The fact that she was ultimately unsuccessful in her action and on the appeals therefrom does not diminish the gravity of her treatment by the police while she was in custody, or its implications for the public at large. This case raised complex issues of general public importance involving the duties, obligations and requisite standard of care owed by the police to persons whose liberty is constrained in a police lock-up facility. Thus, notwithstanding the respondent’s personal pecuniary interest in the outcome of this case, the public interest was also engaged in these proceedings. In any event, the respondent’s financial interest in this case was clearly modest in comparison to the overall costs of the proceedings.
7In addition, the respondent’s financial resources are limited, to say the least. The respondent and her disabled daughter exist on monthly child support totalling $850. This is the respondent’s sole source of income. The respondent had incurred substantial debt for legal fees as a result of these proceedings, throughout which she did not have the benefit of legally aided financial assistance. While these factors, by themselves, would not support the denial of a costs award in favour of the appellants, they are relevant considerations to be taken into account in arriving at a proper costs disposition.
8I conclude that this is one of those exceptional cases in which costs should not be awarded against the unsuccessful litigant. To do otherwise, in all the circumstances, would visit an unfair and onerous human and financial hardship on the respondent, resulting in fundamental injustice.
9For the reasons given, I would direct that the parties bear their own costs of the trial and the proceedings before the Divisional Court and this court.
RELEASED:
“DEC 1 2005” “E.A. Cronk J.A.”
“JL” “I agree John Laskin J.A.”
“I agree E.E. Gillese J.A.”
