Court File and Parties

COURT FILE NO.: CV-22-126-00 DATE: 2023-06-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donald Marttunen v. Thunder Bay Police Services Board

HEARD: Written Submissions

BEFORE: Nieckarz J.

COUNSEL: Self-represented, for the Plaintiff Eugene Prpic, for the Defendant

ENDORSEMENT ON COSTS

[1] On January 17, 2023, I released my decision granting the Defendant’s motion to strike the Statement of Claim of the Plaintiff. I dismissed the action against the original Defendants (City of Thunder Bay and Thunder Bay Police). They were incorrectly named. The Thunder Bay Police Services Board is the correct named defendant. I struck the balance of the claim, with leave to amend (naming the correct party), due to the numerous and incurable violations of the Rules of Civil Procedure and general rules of pleadings established by the case law. I also dismissed the Plaintiff’s motion for judgment. My decision may be found at Martttunen v. City of Thunder Bay et. al., 2023 ONSC 467.

[2] In my decision, I invited written submissions with respect to costs. The Defendant seeks costs of the motions on a partial indemnity basis in the amount of $8,065.60, inclusive of fees, disbursements and HST. The arguments of the Defendant may be summarized as:

a. The Defendant is the successful parties to the motions and is presumptively entitled to costs. b. The Statement of Claim was so deficient that the Defendant was left with no alternative but to bring a motion. The original named Defendants were not even proper parties to the action. It would have been impossible for the Defendant to defend the claim in its original form. c. It was a time-consuming exercise to thoroughly consider the allegations of the Plaintiff and break them down for the court into the various categories of pleadings rules offended. A detailed Factum was required setting out the applicable law. Given the serious nature of the allegations being made by the Plaintiff, the time devoted to analyzing the Statement of Claim was reasonable. d. While it is acknowledged that the Plaintiff is self-represented and the law related to pleadings is complex, the Defendant was put to considerable expense as a result of the Plaintiff’s deficient pleading. The time claimed is reasonable and necessary given the serious nature of the allegations made and the damages claimed ($200,000).

[3] The Plaintiff argues that no costs are appropriate at this stage unless they are awarded to him. In the alternative, he argues that costs should be determined at the conclusion of the proceeding. The Plaintiff’s arguments may be summarized as:

a. The Plaintiff, as a self-represented litigant, should be given some leeway. He experienced technical issues prior to and during the motion hearing that caused him to experience anxiety and fail to address all important issues. b. His claim has merit. The meritorious nature of the claim should outweigh any technical deficiencies. c. No costs outline was served by the Defendants as required by the Rules of Civil Procedure.

ANALYSIS

[4] By virtue of s. 131(1) of the Courts of Justice Act, an award of costs is in the discretion of the judge. It is a wide discretion, to be exercised taking into consideration the factors outlined in Rule 57.01 of the Rules of Civil Procedure.

[5] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 OR (3d) 291 (Ont CA) at para. 37).

[6] The Defendant is the successful party on the motions. The general rule is that a successful party should receive its costs, unless the court feels it is appropriate to exercise its discretion not to order them, or not to order them at this stage.

[7] I see no reason not to award the Defendant its costs of the motions. There are no facts or circumstances before me that suggests there is reason to deviate from the general rule that costs follow the event.

[8] I appreciate that the Plaintiff is self-represented, but that does not insulate him from the costs consequences of a motion, nor do his views as to the merits of his action. Having said this, I did not see any offers or correspondence from the Defendants prior to, or after bringing their motion. This is a relevant consideration.

[9] The lack of costs outline served for the motion is also not a bar to an award of costs. A costs outline was served with the costs submissions. Costs submissions were delivered by the Defendant in accordance with my order. The Notice of Motion of the Defendant signalled that costs will be claimed.

[10] I find a fair and reasonable amount for the Plaintiff to pay on account of costs is $5,000 inclusive of HST, based on the following:

a. The nature of the motions and the materials filed. Despite the nature of the allegations, and the fact that this was scheduled as a long motion, the nature of the motions were not overly complex. No affidavit evidence was required. I do appreciate that a fair amount of work had to be put into the factum to cross-reference the pleadings rules and principles against each paragraph of the Statement of Claim. b. The hourly rates charged by the Defendant’s counsel are reasonable given the experience of counsel. Law clerk time claimed is more akin to administrative work, which may properly be recoverable between the Defendant and counsel pursuant to the terms of their retainer, but not on a partial indemnity basis on a motion. c. I have considered the number of attendances required on the motions. d. I have considered the importance of the motions and the outcome to the parties. I agree that the Statement of Claim was so deficient that the Defendant would not have been able to prepare an appropriate Statement of Defence. The allegations are serious. The pleading was so deficient that the Defendant had to address it.

ORDER

[11] The Plaintiff shall pay to the Defendant, within 30 days of the date of this Endorsement, costs in the amount of $5,000 inclusive of fees, disbursements and HST.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: June 9, 2023