COURT FILE NO.: 49903/03
DATE: 2012/05/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIDNEY CONNOLLY and BONNIE CONNOLLY and STONE CONNOLLY, a Minor, By His Litigation Guardian, Sidney Connolly
Steven Venhuizen, for the Plaintiffs
Plaintiffs
- and -
THE ST. CATHARINES TRANSIT COMMISSION, SANDRA RAIL and ASSAULTER ONE and ASSAULTER TWO
Douglas G. Dawson, for the Defendants, The St. Catharines Transit Commission and Sandra Rail
Defendants
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[1] The Plaintiff, Sidney Connolly, had commenced a proceeding claiming negligence and damages as a result of having been beaten by high school students who had been passengers on a city bus. Damages had been agreed upon, and the trial proceeded before a jury on the issue of liability only.
[2] On January 26, 2012, after a four day trial, the jury rendered a verdict finding no liability on the part of the St. Catharines Transit Commission and the bus driver, Sandra Rail. The jury found the two unknown Assaulters to be 99.9% responsible for the Plaintiff’s injuries, with the Plaintiff held .1% contributorily negligent.
Positions of the Parties on Costs
[3] The Defendants (St. Catharines Transit Commission and Sandra Rail) seek costs in the amount of $52,599.40 based on partial indemnity costs to the date of an offer on May 23, 2008 (to dismiss the action without costs) and substantial indemnity costs thereafter.
[4] The Plaintiffs concede that the Defendants are entitled to costs, but submits that these should be moderate ($5,000.00 to $10,000.00) on the basis that the claim was not frivolous or vexatious; there was a genuine issue for trial; the Plaintiff acted reasonably in settling the issue of damages so that the issue was limited to liability; and the Plaintiff is of modest means, having an income of less than $30,000.00 and having no assets.
Order
[5] Rule 57.01(1) of the Rules of Civil Procedure sets out the general principles to be considered in making a cost order.
[6] Under section 131 of the Courts of Justice Act, it is within the general discretion of the Court to determine whether and to what extent costs are to be paid. Rule 57.01 (4) confirms that nothing in Rule 57.01 affects the authority of the Court under section 131 to award or refuse to award costs.
[7] It is not disputed that the Defendants are entitled to costs. This was not an overly complex matter, although it would appear from the resources utilized by the Defendants that they treated it as such. While the initial Offer to Settle preceded the discoveries, by the second Offer to Settle, the Plaintiff must have known that there was a risk that if he did not succeed with the claim that he could be expected to pay some amount of costs to the Defendants.
[8] This was a tragic event. The Plaintiff received a savage beating at the hands of the Assaulters and he sustained significant injuries. It is apparent that any cost order will be a considerable financial hardship for the Plaintiff.
[9] Taking into consideration all of the factors as set out in Rule 57.01 and exercising my discretion under section 131 of the Courts of Justice Act, the Defendants are entitled to costs in the amount of $10,000.00 all inclusive.
___________________________
MacPherson J.
Released: May 8, 2012
COURT FILE NO.: 49903/08
DATE: 2012/05/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIDNEY CONNOLLY and BONNIE CONNOLLY and STONE CONNOLLY, a Minor, By His Litigation Guardian, Sidney Connolly
Plaintiffs
- and -
THE ST. CATHARINES TRANSIT COMMISSION, SANDRA RAIL and ASSAULTER ONE and ASSAULTER TWO
Defendants
COSTS ENDORSEMENT
MacPherson J.
Released: May 8, 2012