ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-1045-00
DATE: 20120302
B E T W E E N:
CEBURT SPARKES
Self-Represented
Plaintiff
- and -
COURTNEY SMITH
Self-Represented
Defendant
HEARD: February 28, 2012
REASONS FOR JUDGMENT
Wein J.
[ 1 ] This was a motion for summary judgment on the claims set out in the Plaintiff’s Statement of Claim. Neither party was represented by counsel. Both parties agreed that the Court should admit the Defendant’s statement of his position on the facts, and then hear the motion combined with what was in effect intended as a cross-motion by the Defendant for summary judgment to dismiss the claims.
[ 2 ] The Plaintiff in his Statement of Claim had claimed the following:
“(a) The defendant violated the Plaintiff’s Section 7: The right to life, liberty, and security of the Canadian Charter of Rights and Freedoms , therefore seek damages of $300,000.
(b) The defendant violated the Plaintiff’s Section 9: Arbitrary detention or imprisonment of the Canadian Charter of Rights and Freedoms , therefore seek damages of $300,000.
(c) The plaintiff’s character was slandered by the defendant, therefore, seek damages of $100,000.
(d) Reimbursement of his court cost of $3,500.” [sic]
[ 3 ] The Defendant indicated that he had not filed a Statement of Defence or Counterclaim, although one was filed in the court shortly after the Statement of Claim was filed, two years ago. The Counterclaim is for a restraining order against the Plaintiff, and for costs.
[ 4 ] The underlying issue between the parties arose from the Defendant’s Criminal Code , R.S.C., 1985, s.C-46, s. 810 charge against the Plaintiff, proceeded by way of a private complaint, for an order of non-harassment against the Plaintiff. The Plaintiff had allegedly thought that the Defendant was having a relationship with an ex-girlfriend of his, which the Plaintiff denied. The Defendant thought that the Plaintiff had “keyed” his car and his wife’s car, slashed his tires, and sent letters to his wife.
[ 5 ] It is clear from the materials filed that the application for a peace bond was dismissed in 2007. The Plaintiff was subsequently summoned to appear on the Defendant’s private complaint. The information shows that he did appear with counsel. However, there are no transcripts to show what had happened at these later hearings, and no material to support the claims were provided to me.
[ 6 ] With respect to paragraph c) of the claim, the Plaintiff clarified that the slander occurred in bringing the action in court, and can be found in the statements made by the Defendant in court, and to police officers. To the extent that these are based on court proceedings, they are privileged, and cannot be the subject of an action for slander.
[ 7 ] With respect to the claims in paragraphs a) and b), and anything remaining in paragraph c), the Plaintiff clarified that these simply relate to the fact that he was brought to court by the private information filed by the Defendant. He was never actually detained or arrested, and never imprisoned. He appeared by way of summons. Accordingly, it is clear on the face of it that the claim based on s. 9 of the Charter is not founded in law. In the circumstances of this case, it is also clear to me, having heard the oral arguments of both the Plaintiff and Defendant, that there is no basis in this case upon which the claim under Section 7 of the Charter can properly proceed.
[ 8 ] The Plaintiff in any event, very reasonably, acknowledged at the hearing of the motion that the sole reason he was proceeding with this motion was to get reimbursement of the costs he paid to his lawyer of $3,500. These were not, as the wording of the claim might suggest, costs ordered by the court to be paid by him. Rather, the request is for reimbursement of fees Mr. Sparkes paid to his lawyer for representing him at the hearing under Section 810 of the Criminal Code . He does not have the lawyer’s bill, and was unable to find the final cheque he sent to the lawyer the day after the hearing, but I accept that these costs were paid to his lawyer, Mr. Brown, who is recorded on the information as having appeared on his behalf on at least four occasions. Mr. Smith notes that there was a family court action at the same time involving Mr. Sparkes, so he suggests that part of the fees were paid for that family issue, and in any event notes that some of the appearances were necessitated by adjournment requests made by Mr. Sparkes.
Costs Awards in Private Prosecutions
[ 9 ] In a civil case, the court is empowered to award costs under section 131 of the Courts of Justice Act , R.S.O. 1990, c.C.43, which reads:
Costs
131.(1)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. R.S.O. 1990, c. C.43, s. 131 (1) .
Crown costs
(2)In a proceeding to which Her Majesty is a party, costs awarded to Her Majesty shall not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown, and costs recovered on behalf of Her Majesty shall be paid into the Consolidated Revenue Fund. R.S.O. 1990, c. C.43, s. 131 (2) ; 1994, c. 12, s. 45.
[ 10 ] In Waxman v. Waxman , (2003) 2003 22440 (ON CA) , 30 C.P.C. (5th) 110 (C.A.) it is stated clearly that an appellate court does not have the jurisdiction under s. 131 to make original costs orders related to the trial proceedings. This is also reflected in Odhavji Estate v. Metropolitan Toronto Police Force , 2003 SCC 69 , [2003] 3 S.C.R. 263 and Murphy v. Alexander (2004), 2004 15493 (ON CA) , 236 D.L.R. (4th) 302 (C.A.) which both note that appellate courts are loathe to interfere with the exercise of a trial judge’s discretion in awarding costs.
[ 11 ] What is obvious from these appellate decisions is that it is in the domain of the original trial judge to make a decision respecting costs. Quite apart from the fact that the original proceedings were Criminal, it is inappropriate for Mr. Sparkes to commence a separate civil action in order to have the costs of the hearing pursuant to s. 810 awarded. Costs for that hearing should have been dealt with in that same hearing, by the judge at that proceeding.
[ 12 ] Even if it were appropriate to bring an action to determine costs of another proceeding, costs in criminal cases are rarely awarded. In Ontario v. 974649 Ontario Inc ., 2001 SCC 81 , [2001] 3 S.C.R. 575 , at para. 87 the Supreme Court of Canada decided, “the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution”. See also: R. v. Logan , (2002) 2002 44927 (ON CA) , 59 O.R. (3d) 575 (C.A.) . Mr. Sparkes’s s. 810 hearing has not met this threshold. Accordingly, I find it does not merit an award of costs in Mr. Sparkes’s favour in any event.
[ 13 ] At this hearing neither party was represented nor were costs requested. I would not order any costs for this proceeding either.
[ 14 ] In the result the Plaintiff’s application for Summary Judgment is dismissed. The cross application of the Defendant is allowed, and the case is dismissed in its entirety, without costs to either side.
Wein J.
Released: March 2, 2012
COURT FILE NO.: CV-09-1045-00
DATE: 20120302
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: CEBURT SPARKES Plaintiff - and – COURTNEY SMITH Defendant REASONS FOR JUDGMENT Wein J.
Released: March 2, 2012