CITATION: Jovanovic v. Hamilton-Wentworth Regional Police Services Board, 2010 ONSC 1318
DIVISIONAL COURT FILE NO.: DC-08-73
DATE: 20100413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Before: Cunningham, A.C.J. Platana, McCartney, JJ.
B E T W E E N:
SLOBODAN JOVANOVIC,
Plaintiff (Appellant)
- and -
HAMILTON-WENTWORTH REGIONAL POLICE SERVICES BOARD, HAMILTON-WENTWORTH REGIONAL POLICE, POLICE CHIEF ROBERT MIDDAUGH, POLICE CONSTABLE R. DRUMM, THE T. EATON COMPANY LIMITED, SANDOR ILLES, FLEETWOOD AMBULANCE, CHRIS BAYARDS and TOM MANTIONE,
Defendants (Respondents)
Counsel: Marc A. Munro, for the Plaintiff (Appellant) Daniel Bartley, for the Defendants (Respondents) Hamilton-Wentworth Regional Police Services Board, Hamilton-Wentworth Regional Police, Police Chief Robert Middaugh and Police Constable R. Drumm Paul Philp, for the Defendants (Respondents) The T. Eaton Company Limited and Sandor Illes Paul Philp, for the Defendants (Respondents) Fleetwood Ambulance, Chris Bayards and Tom Mantione
HEARD: November 9, 2009, at Hamilton, Ontario
Reasons For Costs
Platana J.
[1] The Appellant was unsuccessful in his appeal from a jury verdict which dismissed his claim against the Defendants and awarded $19,000.00 in general and punitive damages to the Defendant Ambulance Respondents on their counterclaim. The Appellant also appeals the costs award against him in the collective amount of $260,000.00.
[2] The Appellant originally brought this appeal before the Court of Appeal. The Respondents disputed the jurisdiction of that court and the Court of Appeal ordered the transfer of the appeal to this court. Previous motions were held for security for costs and costs were reserved by the motions judge to this panel.
[3] The Appellant raised 9 issues for appeal in his factum including, adjournments not granted, admissibility of evidence, standard of review, discretion available to trial judges, errors in the charge to the jury, and punitive damages and costs.
[4] The Respondent Eatons' claims $44,500.00 on a substantial indemnity basis; the Police Defendants (City of Hamilton) claim $32,575.85 on a substantial indemnity basis; and the Respondent Ambulance Defendants claim $20,911.98 on a substantial indemnity basis. Following his unsuccessful appeal, the Appellant concedes that the Respondents are entitled to costs but submits that the amount of costs claimed by the Respondents is excessive.
[5] Subject to the Rules of Civil Procedure, the costs of and incidental to a proceeding are in the discretion of the court. The Courts of Justice Act in s. 131 directs that in exercising such discretion a court must consider the factors set out in Rule 57.01 (1) of the rules. The court shall also consider any offers to settle.
[6] In summarizing their views on Rule 57.01 all of the Respondents argued that this matter was particularly complex as noted in Rule 57.01 (1)(c). They argued that there were a number of procedural issues raised in this appeal before the merits were argued, including the fact that the appeal was originally filed in the wrong court. The Appellant brought 2 motions to extend the time for filing the appeal in Divisional Court which the Respondents argue greatly extended the time for the appeal to be heard.
[7] The Respondent Eatons argued that the issue was very important to them inasmuch as the issues raised by the Appellant attacked the fairness of the trial.
[8] With respect to Rule 57.01 (1)(e), the Respondents submit that the Appellant lengthened this appeal unnecessarily in terms of the procedural steps before the matter got to appeal. In terms of the appeal material filed, they argue that some of the issues raised should clearly not have been pursued. They submit that the bringing of the appeal originally to the Court of Appeal unnecessarily lengthened the time for this appeal to be heard. They then argue that the Appellant had to twice bring a motion to extend the time to perfect the appeal.
[9] The Respondent Eatons focuses on Rule 57.01 (1)(f) and says that the entire appeal should be considered improper and vexatious. They note that despite the Appellant having been found guilty of assault and theft after a criminal trial in 1997, he continued to pursue this claim and appeal for more than 12 years. Counsel argues that the Appellant's allegations were found not credible by both a criminal court and a civil jury, and given those clear findings of fact, this appeal was ill founded and vexatious.
[10] The Respondent Eatons submit that substantial indemnity costs are appropriate in considering that the Appellant's claims attacked the character, reputation and integrity of the Respondent police officers and ambulance attendants, and further focuses on the fact that the Appellant had claimed punitive damages.
[11] In considering Rule 57.01 (1)(g), counsel argues that no issue should ever have been raised about the agreed statement of facts, either at trial, or in this appeal. Significantly, in considering costs, the Respondents note that each of them offered to settle this appeal by abandoning their award of costs by the trial judge and, in the case of the ambulance attendants, their damages awarded on their counterclaim, in exchange for the Appellant abandoning this appeal.
[12] As previously noted, the Appellant does not dispute the Respondents' entitlement to costs. Counsel references the Court of Appeal decision in Zesta Engineering Ltd. v. Cloutier, 2002 CarswellOnt 4020 that "A costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant." Counsel further references Andersen v. St. Jude Medical Inc., 2006 CarswellOnt 710 as authority that a court should look at the Bill of Costs of the unsuccessful party and consider what that party had reasonably expected concerning the costs incurred. In that regard the Appellant has submitted a Bill of Costs calculated in the amount of $38,516.58 on a substantial indemnity basis. Counsel then suggests that there should be appropriate deductions from the Respondents' Bill of Costs and overall submits that a fair and reasonable costs order in this case would be $20,000.00 in favour of the Respondents.
[13] The Appellant alleges that the Respondents, in particular Eatons, misrepresented some of the conduct with respect to the Appellant leading up to this appeal. He acknowledges that the appeal was initially wrongly brought in the Court of Appeal. Although the Respondents allege that the Appellant has failed to pay an outstanding costs order of the motion in the Court of Appeal, the Appellant notes that the Respondents were made aware previously that the funds for that cost award are being held in trust by counsel who previously acted for the Appellant.
[14] The Appellant submits that while there was delay in perfecting the appeal initially, when current counsel was retained the matter proceeded expeditiously. He then submits that the matter was unnecessarily delayed by the Respondent Eatons opposing motions to extend the time to perfect the appeal, and by bringing motions for security for costs which delayed the orderly perfection of the appeal. The Appellant further submits that the Respondent Eatons should be sanctioned for having raised an allegation that the Appellant intentionally "mislead the court and deceive on material facts" which allegation the Appellant disputes.
[15] The Appellant acknowledges that the Respondents submitted offers to settle which, if accepted, would have placed the Appellant in a better position than he achieved on this appeal. In response, counsel notes that the matter was of significant and great personal importance to the Appellant and that costs should be fixed at maximum on a partial indemnity basis.
[16] He argues in summary that discretion should focus on what is fair and reasonable. He submits that a review of the Bill of Costs submitted by the Respondents, particularly the Respondent Eatons, shows the bills to be excessive and unjustifiable. He notes that the Respondents spent a total of 470 hours on this appeal as opposed to 154 by the Appellant. He further notes that the Respondent Eatons appears to seek double indemnification for the proceedings before the Court of Appeal which were determined by a consent order.
[17] In considering the factors mandated under Rule 57.01 to be considered when exercising our discretion, we first note that the Appellant had claimed in excess of $1,000,000.00 in his claim. That claim was dismissed at trial and the Appellant was ordered to pay damages by way of counterclaim of $19,000.00 and costs were awarded against him of $260,000.00.
[18] Despite the Respondents' arguments, the appeal in our view, while involving a number of issues, was not particularly complex. The issues were generally direct and straight forward with no specific interrelationship between those issues. Counsel were able to divide the responsibility for arguing different issues.
[19] While the issues were important to the parties, it cannot be said that there were any novel or complex questions of law raised.
[20] We agree with the submissions of the Respondents that the actions of the Appellant lengthened the duration of the trial unnecessarily. The appeal was originally brought in the wrong court, even after the Respondents had alerted the Appellant to that issue. Two motions were then brought by the Appellant to extend the time to perfect this appeal. The fact that materials necessary to do so were not readily available can only be attributable to the Appellant having delayed in requesting them. We do recognize that after the Appellant engaged counsel who appeared before us, the matter proceeded in the normal course.
[21] The Respondents argue that the conduct of the Appellant in bringing this appeal in the face of having been convicted of assault and theft arising out of the same circumstances should be considered improper and vexatious. Further, they note that the Appellant was vexatious in attacking the character, reputation and integrity of the Respondents, particularly the police and security officers and the ambulance attendant. We agree that as part of this appeal, the Respondents were required to respond to allegations of intentional torts such assault, and false arrest, which should have been considered to be unfounded considering the history of the criminal charges and convictions against the Appellant.
[22] An issue was raised concerning the admissibility of the agreed statement of facts at trial. The Respondents now argue that the history of the preparation and introduction of the statement should have been agreed to by the Appellant, and, as it was not, the Respondents were required to submit extensive responding materials on that issue in this appeal. We do not agree that such extensive materials as prepared by the Respondents were necessary to deal with this issue.
[23] Of particular significance to any award of costs is an offer to settle. In this appeal, all of the Respondents offered to settle this appeal by waiving the trial judge's award of costs in their favour, in return for the Appellant abandoning this appeal. There is no question but that the Appellant would have been in a much better position had the offers, or any of them, been accepted.
[24] In reviewing the Bill of Costs submitted by each of the parties, we reference the comments of Nordheimer J. in Basedo v. University Health Network, [2002] O.J. No. 597 that "It is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered." We also have considered the comment in Zesta Engineering Ltd. v. Cloutier that a costs award should reflect what the court views as fair and reasonable rather than the exact measure of the actual costs to the successful litigant.
[25] We agree with Mr. Munro that the costs of the Respondents seem unreasonable when compared to the costs of the Appellant. The Respondents in total spent 3 times as many hours as the Appellant, even recognizing that there are 3 Respondents, the Bill of Costs as submitted are not fair and reasonable in terms of what the unsuccessful Appellant should have to pay, and in view of what might be considered to be fair and reasonable for an appeal in this court.
[26] Based upon all of the above, the Respondent Eatons shall be entitled to costs in the amount of $12,500.00; the Respondent Police Defendants (City of Hamilton) in the amount of $7,500.00; and the Respondent Ambulance Attendants costs in the amount of $5,000.00, all costs awards inclusive of disbursements and GST.
Cunningham, A.C.J.
Platana J.
Released: April 13, 2010 McCartney J.
CITATION: Jovanovic v. Hamilton-Wentworth Regional Police Services Board, 2010 ONSC 1318
DIVISIONAL COURT FILE NO.: DC-08-73
DATE: 20100413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SLOBODAN JOVANOVIC,
Plaintiff (Appellant)
- and –
HAMILTON-WENTWORTH REGIONAL POLICE SERVICES BOARD, HAMILTON-WENTWORTH REGIONAL POLICE, POLICE CHIEF ROBERT MIDDAUGH, POLICE CONSTABLE R. DRUMM, THE T. EATON COMPANY LIMITED, SANDOR ILLES, FLEETWOOD AMBULANCE, CHRIS BAYARDS and TOM MANTIONE,
Defendants (Respondents)
REASONS ON COSTS
Cunningham A.C.J.
Platana J.
McCartney J.
Released: April 13, 2010
/mls