Court File and Parties

COURT FILE NO.: CV-12-17981 DATE: 20160826 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MIHAIL KOLOSOV, ANDREI KOLOSOV, also known as ANDREI KOLASAU, and ALENA KOLASAVA Plaintiffs

– and –

LOWE’S COMPANIES INC., LOWE’S COMPANIES CANADA, ULC, ANDREW J. FRALICK, JOSEPH THOMAS GERALD HOWARD, STEVEN S. BOYLE, CASEY FINDLAY, WINDSOR POLICE SERVICES BOARD, GARY SMITH, Former Chief of Windsor Police Services, DETECTIVE KEVIN MCCANN, POLICE CONSTABLE STEVEN BRNARDIC, POLICE CONSTABLE JACQUELINE KHOURY, STAFF SGT. ALAN BROWN, BELLEVILLE POLICE SERVICE BOARD, CORY MCMULLAN, Chief of Belleville Police Services, CONSTABLE RON KANYO, CONSTABLE JEFF LING, DETECTIVE CONSTABLE PAUL JOSEFIK and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO Defendants

Counsel:

Raymond G. Colautti, for the Plaintiffs Tom Galligan, for the Defendants, Lowe’s Companies Inc.; Lowe’s Companies Canada; ULC; Andrew J. Fralick; Joseph Thomas Gerald Howard; Steven S. Boyle and Casey Findlay Sheila C. Handler, for the Defendants, Windsor Police Services Board; Gary Smith, former Chief of Windsor Police Services; Detective Kevin McCann; Police Constable Steven Brnardic; Police Constable Jacqueline Khoury and Staff Sgt. Alan Brown Wilfrid Menninga and Melissa Seal, for the Defendants, Belleville Police Service Board; Cory McMullan, Chief of Belleville Police Services; Constable Ron Kanyo; Constable Jeff Ling and Detective Constable Paul Josefik

ENDORSEMENT ON COSTS

VERBEEM J.:

[1] For written reasons, dated March 24, 2016, I granted the Belleville defendants’ motion for summary judgment, dismissed the action against them, and invited written submissions with respect to costs of the motion and a related motion to strike portions of an affidavit that the plaintiffs filed in the summary judgment motion. The action against the Lowe’s defendants and the Windsor defendants continues (“the remaining defendants”).

[2] In their costs submissions, the plaintiffs suggested, among other things, that the costs issues involving the Belleville defendants should not to be determined until the final disposition of the action against the remaining defendants, because a Bullock or Sanderson order against the remaining defendants may ultimately be appropriate. In response, counsel for the Windsor defendants requested leave to file costs submissions, even though those defendants were not parties adverse in interest to the Belleville defendants and they did not oppose the summary judgment motion. I allowed all parties to make further costs submissions by May 31, 2016 and, eventually, I received submissions from the Windsor defendants and the Lowe’s defendants.

[3] In arriving at the following disposition, I have reviewed and considered the submissions of all parties.

The Belleville Defendants’ Costs Position

[4] As the successful parties, the Belleville defendants seek an order that the plaintiffs are jointly and severally liable to pay to them the sum of $135,000 as costs, inclusive of H.S.T. and disbursements, for the entire action (including the summary judgment motion).

[5] The quantum of the Belleville defendant’s costs claim is informed by the procedural history of the action, which I will briefly summarize below.

[6] The action involves over 20 parties including the Belleville defendants (specifically the Belleville Police Service Board, Police Chief Cory McMullan, Police Constable Ron Kanyo, Police Constable Jeff Ling and Detective Constable Paul Josefik).

[7] Prior to conducting examinations for discovery, the parties participated in a mandatory mediation. A substantial volume of documentation passed between the parties during the subsequent discovery process. The parties’ examinations for discovery occurred over the course of eight days (mostly non-consecutive), in various municipalities. Some of the parties were questioned by written interrogatories.

[8] The Belleville defendants brought a motion for summary judgment, which was scheduled for one full day hearing. In response, the plaintiffs delivered a motion record totalling in excess of 1,000 pages, including exhibits. The remaining defendants did not oppose the motion.

[9] The affidavit anchoring the plaintiffs’ responding motion record contained a substantial amount of inadmissible evidence. Shortly after receiving that affidavit, counsel for the Belleville defendants advised the plaintiffs’ counsel about their objections to the affidavit and the admissibility of portions of the affidavit became a contested issue. Eventually, the Belleville defendants brought a motion to strike the affidavit’s contested content. That motion was scheduled to be heard together with the summary judgment motion.

[10] Shortly before the scheduled hearing date, the plaintiffs served a revised affidavit, which they felt adequately addressed the evidentiary concerns raised by the Belleville defendants. It did not. The motion to strike proceeded and consumed most of the time that was originally allotted for the hearing of the summary judgment motion. A second full day was scheduled for the continuation of the summary judgment motion. In the interim, I delivered reasons for my order striking several portions of the revised affidavit delivered by the plaintiffs.

[11] The second hearing date proceeded, as scheduled. The Belleville defendants’ summary judgment motion was successful. The entire action was dismissed against all of them.

[12] The Belleville defendants submit that they incurred considerable legal fees and expenses defending the action. Specifically, the actual total amount charged by their solicitors exceeds $195,000. That sum includes fees for tasks performed by support staff, students and junior lawyers, as well as travel expenses for counsel. The Belleville defendants do not seek any costs associated with those specific items and instead submit that their “actual cost” to defend the action, for the purposes of the issue of recoverable costs, totals $159,575 (which is premised on a “rounded down” total of fees claimed in the amount of $135,575; H.S.T. on fees in the amount of $17,624.75; and disbursements totalling $6,426.48).

[13] The Belleville defendants submit that the legal fee component of the quantum of costs they claim is a function of the following expenditures of time:

Name	Year of Call	Total Hours Claimed	Actual Rate	Total
Wilfrid Menninga	1974	334.5	$325	$108,712.50
Melissa Seal	2008	83.5	$250	$ 20,875.00
Aimee McCurdy (Law Clerk)	14 Years Experience	48	$125	$ 6,000.00
TOTAL		466		$135,587.50

[14] The quantum of costs claimed by the Belleville defendants ($135,000 inclusive) is much closer to its calculated costs on a substantial indemnity basis than it is to its calculated costs on a partial indemnity basis. In that regard, the Belleville defendants submit:

1. The plaintiffs claimed an aggregate of $2,250,000 in damages, plus interest and costs from them. All of the plaintiffs’ claims against them were dismissed.
2. The claims advanced by the plaintiffs were complex and founded in allegations of the following: negligent investigation; false imprisonment; false arrest; violations of the Canadian Charter of Rights and Freedoms; and a derivative claim under the Family Law Act, R.S.O. 1990, c. F.3.
3. The issues raised in the action were important to the Belleville police, the individual officers named as defendants and for the administration of police powers in the Province of Ontario.
4. There was no basis to advance a claim against Constables Ling and Kanyo and Chief McMullan. The plaintiffs consented to an order dismissing the action against Constable Ling and Chief McMullan during their submissions on the summary judgment motion. The inclusion of these claims unnecessarily lengthened the proceeding.
5. The intentional tort claims brought against the Belleville defendants were advanced after the expiry of the applicable limitation periods. The inclusion of these claims unnecessarily lengthened each phase of the litigation.
6. The affidavit evidence adduced by the plaintiffs in response to the summary judgment motion was replete with argument, speculation and inadmissible hearsay and opinion evidence. Despite early objection, the Belleville defendants were compelled to bring a motion to strike the inadmissible evidence from the affidavit. The motion to strike was argued despite the plaintiffs’ attempt to remedy the affidavit’s deficiencies prior to the return of the summary judgment motion, which increased the time and expense associated with the summary judgment motion.
7. The Belleville defendants served an Offer to Settle on June 4, 2013 (after mediation and prior to examinations for discovery) proposing a dismissal of the action on a without costs basis if the offer was accepted within 30 days or a dismissal of the action, with costs, thereafter.

[15] Based on the foregoing factors and the actual costs incurred, the Belleville defendants calculate their costs of the action on a partial indemnity basis of defending the action at $98,346.33 (comprised of fees totalling $81,345; H.S.T. on fees totalling $10,574.85; and disbursements of $6,426.48), and their costs of the action on a substantial indemnity basis at $144,306.26 (comprised of fees totalling $122,017.50; H.S.T. on fees totalling $15,862.28; and disbursements of $6,426.48).

[16] The foregoing calculations include the Belleville defendants’ costs related to the summary judgment motion and related motion to strike. The portion of the costs claimed for those motions is a function of the following expenditures of time:

Name	Year of Call	Total Hours Claimed	Actual Rate	Total
Wilfrid Menninga	1974	131.5	$325	$42,737.50
Melissa Seal	2008	75.6	$250	$18,900.00
Aimee McCurdy (Law Clerk)	14 Years Experience	15.1	$125	$ 1,887.50
TOTAL		222.2		$63,525.00

[17] Based on the foregoing, the Belleville defendants calculate the “summary judgment” related fee component of its costs claim, on a partial indemnity basis, to be $38,107.50, exclusive of H.S.T., and $57,161.25 on a substantial indemnity basis, exclusive of H.S.T.

The Plaintiffs’ Position

[18] The plaintiffs say that the issues relating to the Belleville defendants’ costs must not be determined until the balance of the proceeding is complete. Alternatively, they submit that the Belleville defendants’ costs should be fixed at $15,000, in total, and the obligation to pay that amount should be stayed until the final disposition of all issues of liability and damages against the remaining defendants.

[19] In support of their position, the plaintiffs submit:

1. If costs are fixed and made payable by the plaintiffs in favour of the Belleville defendants, at this point, the plaintiffs will be deprived of an opportunity to offset those costs against an award of costs in their favour should they be successful against the remaining defendants. Further, the plaintiffs may be in a position to request a Bullock or Sanderson order against the remaining defendants with respect to any costs award made against them in favour of the Belleville defendants.
2. They are of “modest means.” If costs are awarded against them at this stage of the proceeding they will be unable to continue with the action against the remaining defendants, which will deny them “access to justice.”
3. “Access to justice” considerations also warrant placing the plaintiffs (who submit they are akin to pro bono litigants because they are of limited means and they are represented pursuant to a contingency fee arrangement) in a more favourable position with respect to costs, particularly given the “important public issues remaining in the litigation.” In this case, costs should be utilized as “an instrument of policy” to make Charter-based litigation accessible to ordinary citizens, like the plaintiffs.
4. The quantum of costs sought by the Belleville defendants markedly exceeds an amount that is “fair and reasonable” for the unsuccessful parties to pay in this particular proceeding.
5. The Offer to Settle referred to by the Belleville defendants was served on June 4, 2013. Their offer to “go out without costs” was time limited to 30 days and expired before any examinations for discovery were conducted. The plaintiffs could not determine the merits of their case against the Belleville defendants until examinations for discovery were completed and undertakings were answered.

[20] While I will deal with specific aspects of the remaining defendants’ respective submissions later, they generally suggest that there are no compelling reasons to delay fixing a costs award against the plaintiffs in favour of the Belleville defendants.

APPLICABLE LEGAL PRINCIPLES

[21] The following principles are applicable to issues before me.

[22] An order of costs is discretionary. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[23] The discretion to award costs must be exercised in accordance with the facts and circumstances of the case and in accordance with the factors set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”): see Andersen v. St. Jude Medical Inc. (2006), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), at para. 22, leave to appeal to ON.C.A. refused, 2006 CarswellOnt 7749.

[24] Rule 57.01(1) of the Rules sets out the factors which may be considered by a court when exercising its discretion under s. 131 of the Courts of Justice Act, and specifically provides:

In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party’s denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and (i) any other matter relevant to the question of costs.

[25] A successful party does not have a right to costs but it does have a reasonable expectation that a costs award will be made in its favour. Normally, costs follow the event and are awarded on a partial indemnity basis payable forthwith (within 30 days). Discretion can be exercised in exceptional circumstances to depart from any of those “norms”: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5; and Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal refused, 2014 ONCA 353.

[26] Fixing costs is not a “mechanical” exercise. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of “reasonableness” as applied to the factual matrix of the particular case, with a view to balancing “compensation of the successful party” with “the goal of fostering access to justice”: see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[27] The quantum awarded should reflect an amount that the court considers to be fair and reasonable within the factual matrix of the particular case rather than a precise measure of the actual costs of the successful litigant: see Zesta Engineering Ltd. v. Cloutier, at para. 4.

[28] An unsuccessful party’s impecuniosity is one of the factors that the court may consider when exercising its discretion to award and fix costs. The relevant principles in that regard are set out by Chapnik J. in Pilotte v. Gilbert, 2016 ONSC 1334, 27 C.C.L.T. (4th) 137, at paras. 10-11, as follows:

[10] Under Rule 57.01(1)(i), the court may consider "any other matter relevant to the question of costs." This includes a party's financial position or situation of hardship. While impecuniosity and hardship should not eliminate or reduce a party's liability for costs, it is one of the factors the court may consider in exercising its discretion under s. 131 of the Courts of Justice Act in determining a reasonable amount of costs: see Balasundaram v. Alex Irvine Motors Ltd., 2012 ONSC 5840, at para. 14; Walsh v. 1124660 Ontario Limited at paras. 15-20; Agius v. Home Depot Holdings Inc., 2011 ONSC 5272.

[11] At the same time, there are other cases where hardship or impecuniosity have not been held to be relevant. Indeed, Lauwers J. in Greenhalgh v. Doura-Dummer (Township), [2011] O.J. No. 1675 (S.C.), at para. 36 referenced, “the problem posed for the system of justice if the costs disincentive established by the Rules were to be displaced by a rule that routinely advantaged a party's hardship in the exercise of judicial discretion over costs.”

THE PRINCIPLES APPLIED

[29] Absent a compelling reason, costs should follow the event. While the Belleville defendants do not enjoy a right to costs, as the successful parties (both in the action and the summary judgment motion), they have a reasonable expectation costs will be awarded in their favour and that the award will be payable within 30 days. The plaintiffs say there are several compelling reasons to depart from a “normative costs” award in this instance, which I have summarized above and which I will address below.

i) Foreclosure of the Opportunity for a Bullock or Sanderson Order against the Remaining Defendants

[30] First, the plaintiffs submit that the fixing of costs or, alternatively, the enforcement of any costs award against them should be stayed pending the final determination of the action against the remaining defendants. They say that it was reasonable to add the Belleville defendants as parties to the action, but if costs are awarded and made payable to the Belleville defendants, at this point, they will be deprived of an opportunity to offset costs or otherwise secure a Bullock or Sanderson order against the remaining defendants. The plaintiffs have not referred me to any decided cases in support of their request.

[31] In my view, this aspect of the plaintiffs’ position does not warrant deferring the determination of the costs issues related to the Belleville defendants until the balance of the action is determined.

[32] The issues of liability with respect to the Belleville defendants have been determined on a final basis. The action against them is at an end. Excepting exceptional circumstances, costs should follow the event. The possibility that a Bullock or Sanderson order may have been made had the liability of all defendants been determined at the same time does not, in the factual matrix before me, constitute an exceptional circumstance justifying a deviation from the normative approach to an award of costs.

[33] While it would be advantageous to the plaintiffs to forestall a costs award against them, to do so would work an unjustified detriment to the successful defendants who have been involved in this action for the last four years. The Belleville defendants are entitled to finality.

[34] Further, while not binding on the future exercise of discretion by the court that will eventually determine the liability issues involving the Windsor Police defendants, in my view there appears to be little justification for a Bullock or Sanderson order (with respect to the Belleville defendants’ costs) against those defendants in the event that they (or any of them) are found liable to the plaintiffs. As the Windsor defendants submit, the Belleville defendants and the Windsor defendants did not cross claim against each other. The Windsor defendants did not oppose the Belleville defendants’ motion for summary judgment. The Windsor defendants did not attempt to shift liability to the Belleville defendants. The Windsor defendants did not assert a position that necessitated the involvement of the Belleville defendants. The causes of action pled against the Windsor defendants and the Belleville defendants involved distinct factual transactions. In the reasons for my order allowing the Belleville defendants’ summary judgment motion, I specifically found that the issues of liability involving the Belleville defendants were independent of the issues of liability involving any of the other defendants. The Windsor defendants and the Belleville defendants were neither legally nor factually adverse in interest in the proceeding. In that context, and without deciding the issue, it is difficult to discern the basis for a Bullock or Sanderson order being made against the Windsor defendants, should they be found liable.

[35] Turning to the Lowe’s defendants, cross-claims were pled between them and the Belleville defendants. However, their cross-claims were based on their respective adoption of the allegations of negligence made against each group of defendants by the plaintiffs in the statement of claim. No further allegations or particulars of negligence were made or relied upon by the Belleville defendants or the Lowe’s defendants as against each other, respectively. Apart from their respective pleadings, neither group of defendants attempted to shift the “blame” between them for the tortious and Charter-infringing conduct alleged by the plaintiffs or the consequential damage alleged by the plaintiffs. The Lowe’s defendants did not respond to, or oppose, the Belleville defendants’ motion for summary judgment. The Belleville defendants do not seek any costs from the Lowe’s defendants or the Windsor defendants.

[36] The plaintiffs were not compelled to initiate their action against the Belleville defendants as a result of the positions advanced by any of the remaining defendants, including the Lowe’s defendants. Despite the cross-claims pled between the Belleville defendants and the Lowe’s defendants, liability against the Belleville defendants was actively pursued by the plaintiffs exclusively during the course of the proceeding. The Lowe’s defendants never insisted that the plaintiffs “keep the Belleville defendants” in the action, and they took no steps to do so in the context of the summary judgment motion. Conversely, the plaintiffs resisted the Belleville defendants’ attempts to be removed from the action until judgment. In the foregoing context, I do not find that the potential that the plaintiffs may secure a Bullock or Sanderson order against the Lowe’s defendants if the determination of the issues of the Belleville defendants’ costs are deferred until the remainder of the action is determined is a sufficient justification for departing from the normative approach to costs in this instance.

[37] Further, the remaining defendants were granted leave to make costs submissions in the context of the summary judgment motion and did so. Neither of the remaining defendant groups challenged the quantum of costs sought by the Belleville defendants and the costs order made pursuant to this endorsement does not circumvent the discretion of the court determining the liability issues related to the remaining defendants to make a Bullock order with respect to the costs ordered herein (requiring those defendants to reimburse the plaintiffs for the costs payable under this order), in the event that any of the remaining defendants are found liable.

ii) The Plaintiffs as Public Interest Litigants (akin to Pro Bono Litigants)

[38] The plaintiffs submit that the court should view them as “pro bono” litigants and that it should fashion a costs award accordingly. Notably, they concede that their counsel is not representing them pursuant to a pro bono retainer. Rather, the plaintiffs disclose that their counsel is acting pursuant to a contingency fee agreement, “which provides for payment of legal fees only in the event of success.” The plaintiffs offer to provide a copy of the retainer fee to the court for inspection, on “a confidential basis”, if required. Such production is not necessary to determine the issues before me.

[39] The plaintiffs submit that the following circumstances justify their request to be viewed as pro bono litigants in the context of the determination of the Belleville defendants’ costs request. First, they say they are either “impecunious” or “of modest means.” Second, they are represented pursuant to a contingency fee arrangement. Third, they posit that their claim involves “important public issues.” As a result, relying on 1465778 Ontario Inc. v. 1122077 Ontario Ltd., they say that in their role as pro bono litigants, by analogy, they should be afforded a more favourable position in the disposition of the costs claim in order to further the objective of access to justice.

[40] I do not accept the plaintiffs’ position that costs should be determined on the basis that they are analogous to pro bono litigants involved in pro bono public interest litigation, for the following reasons.

[41] First, the plaintiffs are not pro bono litigants. Pro bono services are offered, without an expectation of remuneration, to parties that cannot afford a lawyer, in an effort to increase access to justice. Pro bono services are distinguishable from contingency fee based services, where the cost of legal representation is typically funded through a predetermined percentage share of a monetary result, in the event of success. While lacking the charitable motivation underwriting pro bono services, contingency fee retainers are also an effective method of furthering access to justice but they do not immunize unsuccessful litigants against an award of costs: see 1465778 Ontario Inc. v. 1122077 Ontario Ltd., at para. 17.

[42] Second, in furtherance of their “pro bono litigants by analogy” position, the plaintiffs urge me to consider the nature of their contingency fee arrangement as a factor in determining the costs issues related to the Belleville defendants. However, the relevant provisions of the Solicitors Act, R.S.O. 1990, c. S.15, mandate that the existence of a contingency fee arrangement, generally, ought not to influence an award of costs that would otherwise be made against a client who is a party to such an arrangement.

[43] In that regard, s. 20(1) of the Solicitors Act provides that an agreement between a solicitor and client respecting the amount and manner of payment for the former’s services, including a contingency agreement, does not affect the amount, or any right or remedy for the recovery, of any costs recoverable from the client by any other person, who may require any costs recoverable from the client to be assessed in the ordinary manner. Section 20.1(1) of the Solicitors Act provides that in determining the quantum of costs for the purpose of making a costs award, a court shall not reduce the amount of costs payable only because the client’s solicitor is being compensated in accordance with a contingency fee agreement.

[44] In my view, the foregoing provisions of the Solicitors Act are inconsistent with the plaintiffs’ submission that they are entitled to more favourable treatment on the issue of costs because their counsel is acting pursuant to a contingency fee agreement.

[45] Third, given the nature of the plaintiffs’ claims, I do not find them to be “public interest litigants”, as they assert. They are not litigants without a direct pecuniary or other material interest in the proceeding and they are not litigants whose pecuniary interest in the proceeding is modest in comparison to its costs: see Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 76. They do not seek a broad public law remedy. Instead, against the Belleville defendants they pursued, and against the remaining defendants they continue to pursue, a claim for remedial damages in excess of $2,000,000 on account of causes of action, which are all unique to their own private interests.

[46] While some public utility is derived from holding state actors accountable when they engage in tortious conduct or conduct that unjustifiably violates a citizen’s Charter rights, the plaintiffs have primarily litigated in their own interests. The fact that the action involves public authorities does not serve to alter the private nature of the plaintiffs’ remedial claims.

[47] As a result, I am not persuaded that the plaintiffs ought to be viewed as being analogous to pro bono litigants engaged in public interest litigation for the purpose of determining the costs issues before me.

iii) Impecuniosity and the Plaintiffs’ Ability to Continue the Action In the Event of A Costs Award Against Them

[48] The plaintiffs assert that they are impecunious or, alternatively, “of modest means.” They assert that if they are obligated to pay costs to the Belleville defendants, at this point in time, they will be unable to continue the action against the remaining defendants and their access to justice will be denied.

[49] The plaintiffs have the onus to establish their impecuniosity through evidence. They have not done so. Evidence of impecuniosity should be robust. There should be no unanswered questions. Full financial disclosure is required. The plaintiffs must satisfy the court that they have no ability to muster funding to continue the case: see Morton v. Canada, at para. 32. Here, the plaintiffs have not delivered any evidence that establishes impecuniosity, and they have made no financial disclosure at all.

[50] The plaintiffs indicate that they are willing to provide affidavit evidence setting out their “financial means”; the scope of their proposed disclosure is limited to “the court on a confidential basis.” In my view, that approach would deprive the Belleville defendants of the opportunity to scrutinize the evidence in support of the plaintiffs’ claim of impecuniosity and to make informed submissions with respect to the issue.

[51] Further, the plaintiffs have not explained why a costs award in favour of the Belleville defendants will interfere with the progress of their action against the remaining defendants. The plaintiffs indicate they have retained counsel pursuant to a contingency fee arrangement whereby they are only responsible for the payment of fees in the event of recovery. They say that on an ongoing basis, they are only responsible for funding certain disbursements incurred by their solicitor on their behalf. There is no indication that the terms of their agreement with their solicitor will change if a costs award is made in favour of the Belleville defendants.

[52] It may be that the plaintiffs are concerned that the remaining defendants will move to stay the action pursuant to rule 57.03(2) of the Rules, if a costs award in favour of Belleville is made and remains unpaid. In the event that is their concern, and without deciding whether rule 57.03(2) permits a defendant to move to dismiss or stay a plaintiffs’ claim where the plaintiff has failed to pay costs awarded to a different defendant, I observe that the Windsor defendants have already expressly undertaken not to rely on any unpaid costs award made against the plaintiffs in favour of the Belleville defendants as a basis to prevent the determination of the merits of the plaintiffs’ claims against the remaining defendants. The Lowe’s defendants have not expressly advanced the same undertaking. However, in their submissions, the Lowe’s defendants state that they largely agree with the costs submissions of the Windsor defendants.

[53] In the result, I am not persuaded that the plaintiffs have established that they are impecunious or that a costs award against them in favour of the Belleville defendants, that is payable within 30 days, will prevent them from pursuing their action against the remaining defendants.

[54] In the alternative to their claim of impecuniosity, the plaintiffs submit that they are of “modest means.” The Belleville defendants concede that they are not aware of any evidence that contradicts that submission and, in my view, the evidence on the summary judgment motion supports that contention. Through the use of a single cube van, Mihail operates a small moving company in the Greater Toronto Area (GTA). Andrei is a student. Alena does not work. While I do not find that the plaintiffs have established that they are impecunious, I accept that they are of “modest means.”

iv) Quantum

[55] The Belleville defendants seek costs in the amount of $135,000. The plaintiffs say that if any costs are awarded, they should be fixed at $15,000. I have previously set out the relevant legal principles applicable to fixing the quantum of costs, which I will now apply.

[56] First, in considering the factors set out in rule 57.01(1), I find as follows:

(a) In the aggregate, the plaintiffs’ claimed $2,250,000 in damages from the Belleville defendants. They recovered nothing. (b) No liability was apportioned to the Belleville defendants. (c) The proceeding was of moderate complexity. The plaintiff advanced several distinct tortious and Charter-based causes of action against several distinct Belleville defendants. The claims against the Belleville defendants were joined with claims against the Lowe’s defendants and Windsor defendants, which added to its complexity. (d) The issues involved in the action were important to the plaintiffs, who assert they were unlawfully arrested and detained in contravention of their Charter-protected rights. The issues were also important to the individual members of the Belleville Police Service who were alleged to have been engaged in misfeasance in the discharge of their duties as peace officers. (e) The plaintiffs sought to adduce inadmissible evidence on the summary judgment motion which necessitated a motion to strike portions of the affidavit they filed. The motion to strike consumed a substantial portion of the original hearing date scheduled for the motion for summary judgment and necessitated a second full hearing date. (f) The causes of action asserted by the plaintiffs against Police Constable Ling and Chief McMullan were never reasonably tenable. (g) The plaintiffs are of modest financial means. (h) Prior to examinations for discovery, the Belleville defendants offered to consent to a dismissal of the action on a without costs basis provided the offer was accepted within 30 days. Thereafter, they offered to consent to a dismissal of the action on a “with costs” basis. That offer was never accepted. The plaintiffs contend that they were unable to assess the merits of their claim against the Belleville defendants until examinations for discovery were complete and undertakings fulfilled. The examinations for discovery of the Belleville defendants and the Lowe’s employee with whom Police Constables Kanyo and Josefik interacted were completed by October 10, 2013. The plaintiffs elected to continue the action against the Belleville defendants and resisted the Belleville defendants’ motion for summary judgment. Ultimately, the plaintiffs secured a result with respect to the Belleville defendants that is identical to the Offer to Settle made by those defendants – a dismissal of the action against them, with costs. (i) The Belleville defendants submit that they have incurred $135,575 dollars in legal fees (exclusive of H.S.T. and inclusive of fees related to the summary judgment motion) in defence of the action. Allowing for H.S.T. and disbursements, it appears the Windsor defendants have incurred legal fees of approximately $60,000 to date, in defence of the action.

[57] The overall objective of fixing costs is to arrive at an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances rather than an amount fixed by actual costs incurred by the successful litigants. The Belleville defendants submit that $135,000 is a fair and reasonable sum in the circumstances before me. I disagree. The plaintiffs submit the sum of $15,000 is a fair and reasonable amount in the particular circumstances. Again, I disagree.

[58] First, in my view, the circumstances before me do not justify an award of costs premised on recovery on a scale that is higher than partial indemnity, as the Belleville defendants request.

[59] Second, dealing specifically with the motion for summary judgment, the Belleville defendants’ calculate their partial indemnity costs are $38,107.50, exclusive of H.S.T. and disbursements, premised on approximately 220 hours of legal work. While the time claimed to have been spent is not in doubt, I am not persuaded that the plaintiffs ought to have reasonably expected that such an amount of time would be incurred by the moving parties’ solicitors and I do not find the partial indemnity quantum claimed for the summary judgment motion (and related motion to strike) to be fair or reasonable to the unsuccessful litigants in all of the circumstances. Instead, prior to considerations of the plaintiffs’ financial positions and potential financial hardship, I would have fixed the Belleville defendants’ costs for the summary judgment motion and related motion to strike at $28,500 inclusive of H.S.T. and exclusive of disbursements.

[60] The Belleville defendants’ claim partial indemnity fees of $43,237.50 for the balance of the action, exclusive of H.S.T. Based on all of the circumstances before me, in my view, but for considerations of the plaintiffs’ financial positions and potential financial hardship, I would have fixed the Belleville defendants’ costs of the action excluding the summary judgment motion and the related motion to strike at $37,500, inclusive of H.S.T. and exclusive of disbursements.

[61] The Belleville defendants have incurred $6,426.48 on account of disbursements and I find that it is both fair and reasonable for the plaintiffs to fully indemnify them for that sum. Prior to consideration of the plaintiffs’ financial positions and potential financial of hardship, I would have ordered the plaintiffs to fully indemnify the Belleville defendants for their disbursements, as claimed.

[62] Accordingly, prior to consideration of the plaintiffs’ financial positions and potential financial hardship, I would have ordered costs payable by the plaintiffs to the Belleville defendants in the aggregate sum of $66,000 including H.S.T. plus $6,426.48 on account of disbursements, for a total of $72,426.48.

[63] However, the plaintiffs are of modest means. Financial hardship should not eliminate or reduce a party’s liability for costs but it is one of the factors the court may consider in exercising its discretion under s. 131 of the Courts of Justice Act in determining a reasonable amount of costs.

[64] While I am mindful of the policy reasons for requiring unsuccessful parties to pay costs, in all the circumstances and having regard to access to justice and financial hardship considerations, I am of the view that an order requiring the plaintiffs to pay the Belleville defendants an amount for costs representing approximately 66% of the partial indemnity fees and disbursements that I would otherwise have been inclined to award ($72,426.48) is reasonable in this instance. Further, I am of the view that the resulting costs award, in the particular circumstances of this case, does not support the proposition that “litigants without means can ignore costs consequences with impunity.”

[65] Therefore, I fix the Belleville defendants’ costs of the action, including the summary judgment motion and the related motion to strike, together with H.S.T. and disbursements at $47,801.47.

[66] The Belleville defendants request an order that the plaintiffs be held jointly and severally liable for their costs and disbursements. In their submissions, the plaintiffs do not specifically respond to that aspect of the Belleville defendants’ costs claim.

[67] Generally, unsuccessful plaintiffs are jointly and severally liable for costs unless the court, in the exercise of its discretion, orders otherwise: see Meady v. Greyhound Canada Transportation Corp., 2013 ONSC 5568, 55 M.V.R. (6th) 120, at paras. 85-96.

[68] I find that there is no reason to depart from the rule that unsuccessful plaintiffs should be held jointly and severally liable for costs in the circumstances before me. Andrei Kolosov and Mihail Kolosov advanced identical causes of action arising from their arrest and detention and the related investigation conducted by the members of the Belleville Police Service. Alena Kolosava’s claim was statutorily derived from the other plaintiffs’ claims. The plaintiffs are represented by the same lawyer and relied on the same evidence pertaining to liability. In my view, from the outset it was within the plaintiffs’ reasonable expectations that they may be liable for costs on a joint and several basis in the event that they were unsuccessful.

[69] Accordingly, an order will go that the plaintiffs are liable on a joint and several basis to pay costs to the Belleville defendants in the total amount of $47,801.47, inclusive of applicable taxes as costs of the action, including costs arising out of the summary judgment motion. Such costs are payable within 30 days.

“original signed and released by Justice Verbeem” Gregory J. Verbeem Justice

Released: August 26, 2016