SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-4233-SR
DATE: 2012-05-15

RE: JOEL ELLIOTT, Plaintiff

AND:
WATERLOO REGIONAL POLICE SERVICES BOARD, CST. STEVE SCHMELZLE, CST. BRENT GERBER, SGT. PAT PLANTE and CST. TROY CHESSELL, Defendants

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Mr. Davin Charney, for the Plaintiff

Mr. Filipe A. Mendes, for the Defendants

COSTS ENDORSEMENT

[ 1 ] In this action the plaintiff was successful. There were no relevant offers for my consideration.

[ 2 ] The plaintiff seeks fees of $34,406.25 plus disbursements of $1,146.58.

[ 3 ] The defendant has no quarrel with the disbursements but says the fees are exorbitant, most particularly in the face of my judgment for the plaintiff in the amount of $32,000.

[ 4 ] The defendants similarly argue that the plaintiff’s hourly rate of $200 is excessive given that counsel was only called to the bar in 2008. I agree on both fronts.

[ 5 ] It is clear to me that the plaintiff should be entitled to his costs, but those costs must be proportionate to the result obtained. This is however, but one of the factors referenced in Rule 57. That Rule also mandates consideration of:

(a) the complexity of the proceedings,

(b) the amount claimed and the amount recovered in the proceeding;

(c) the apportionment of liability;

(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…

[ 6 ] While issues of Charter were raised, I did not find the case to be particularly complex. There were few documents, a number of witnesses and four days of trial. It was largely a fact driven case.

[ 7 ] The only factor that I found particularly compelling in support of higher than average costs of this litigation is the importance of the issues. As becomes apparent from my decision, most particularly the punitive damage component, I was most unimpressed with the conduct of the police. I accept that the litigation was important to launch given the defendants disregard for Mr. Elliott’s rights. It had import for Mr. Elliott and import in a larger context.

[ 8 ] All of that being said, I must assess what a reasonable litigant would expect to pay if unsuccessful. Compensating for legal fees of 147 hours on such a relatively small claim is not reasonable. Similarly, a partial indemnity rate of $200 per hour (roughly two-thirds of a substantial indemnity rate which would therefore be approximately $300 per hour) is excessive for a lawyer with three years experience.

[ 9 ] It is not within the reasonable expectation of an unsuccessful litigant that the trial preparation (including preparation of a factum) should be three times the actual time spent at trial for instance. The file, despite the importance of the issues, was over lawyered. While several motions seemed to have been required – to unseal the warrant, to set aside a dismissal order, and to compel production of the CTV videos [1] , I was not told why costs were not sought at each of these junctures, but for the motion to set aside the dismissal order.

[ 10 ] At the end of the day I would award the plaintiff fees of $12,500 plus disbursements and HST. The fees component is based on what I find to be a fair range of time and lower hourly rate with hours that I find to be more in line with the result, but reflective of the importance of the issues and the imbalance in bargaining power between the plaintiff and the defendants.

Released: May 15, 2012

MILANETTI J.

[1] Which were I found most useful to me at trial.