COURT FILE NO.: 294/05

DATE: 20080320

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: NATHAN PARKER AND PAUL KOSCINSKI Appellants

• and -

NIAGARA REGIONAL POLICE SERVICE Respondent

• and -

WAYNE PENNER Respondent

BEFORE: CARNWATH, KITELEY & MURRAY JJ.

COUNSEL: Gary Clewley, for the Appellants

Woodward McKaig, for the Respondent, Niagara Regional Police Service

Wayne Penner, In person

COSTS ENDORSEMENT

CARNWATH J.:

[1] This matter arose from a disturbance in a hearing conducted by a Justice of the Peace. Officers Parker and Koscinski arrested Mr. Wayne Penner as a result of the disturbance.

[2] The officers were subsequently charged under the Code of Conduct established by the Police Services Act. A hearing was held before a Hearing Officer, who found the officers not guilty of the charges.

[3] Mr. Wayne Penner appealed the Hearing Officer’s decision to the Ontario Civilian Commission on Police Services. The Commission reversed the decision of the Hearing Officer and found the officers guilty of the original charges and imposed penalties.

[4] The officers, in turn, appealed to the Divisional Court and, on October 17, 2007, the appeal was granted and the decision of the Commission was revoked.

[5] The officers, having been successful on the appeal, are entitled to their costs. They do not seek costs against the Niagara Regional Police Service, but only against Mr. Penner.

[6] Counsel for the officers has submitted a Bill of Costs seeking fees of $14,250, plus GST, and approximately $1,300 of disbursements, plus GST. Mr. Penner says in two separate submissions that he should not be required to pay any costs.

[7] The fixing of costs does not begin or end with the calculation of hours times rate. The overall objective is to fix an amount that is fair and reasonable, having regard to the broad range of factors in Rule 57.01(3), for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, (C.A.))

[8] Applying the foregoing principle, we fix the costs payable by Mr. Penner to the successful appellants in the amount of $7,500, inclusive of fees, disbursements and GST. The award is based on a partial indemnity basis and is payable within thirty days.

CARNWATH J.

KITELEY J.

MURRAY J.

DATE: 20080320