SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CV-09-376725
Date: 2013/03/15
RE: Gioris v. Toronto Police Services
BEFORE: Justice Moore
Upon Written Submission and Bill of Costs of Vasiliki Gioris, delivered by her counsel, Vusumzi Msi
E N D O R S E M E N T
Moore J.
[1] Following the trial of this action, by reasons released on 16 November 2012, the plaintiff’s claims were dismissed and certain defendants, including Vasiliki Gioris, were awarded costs, if demanded.
[2] Ms. Gioris seeks costs as specified in her Bill of Costs, now filed, and detailed the reasons supporting her claims for fees, disbursements and associated H.S.T. in written submissions, also filed.
[3] Mr. Gioris had 30 days within which to respond to Ms. Gioris’ submissions but he has chosen not to or neglected to deliver responding materials. He has not responded either with a request for additional time to respond.
[4] In the result, I shall now fix and award costs to Ms. Gioris.
[5] Notwithstanding the fact that Mr. Gioris has not articulated a position on this costs issue, I am mindful of the need to award costs that are reasonable in all the circumstances of the case.
[6] The starting point for the process is Section 131 of the Courts of Justice Act[^1] and the General Principles outlined in rule 57 of the Rules of Civil Procedure.[^2] As such the costs to be awarded in this matter are in my discretion but will reflect my consideration of the general principles detailed in rule 57.01(1).
[7] In fixing costs, the court need not attempt a line by line analysis of the bill of costs under consideration nor should the process become a mathematical exercise of applying hourly rates to docketed hours. There must be a balance achieved between recovery of a fair and reasonable amount for services rendered and disbursements incurred considered in the context of the particular case and the reasonable expectations of the party called upon to pay the amount to be fixed.
[8] The court may consider the outcome of the action, as I have done in this case. Ms. Gioris enjoyed complete success on the liability issue and it appears that she was not offered an opportunity to resolve the case short of trial on a basis remotely resembling the outcome she ultimately realized.
[9] Mr. Gioris claimed damages from Ms. Gioris of $900,000 in this case plus interest and costs. His claims included claims for general damages, punitive damages, aggravated or exemplary damages and unspecified special damages.
[10] Mr. Gioris asserted that Ms. Gioris provided false information to the police about him and did so motivated by malice and vindictiveness.
[11] His claims raised many legal issues but they were issues of modest complexity that were presented during a trial lasting eight days.
[12] The issues and their determination were very important to Ms. Gioris. Quite apart from the financial jeopardy she faced, her reputation, credibility and motivations weighed in the balance.
[13] Having raised serious issues against Ms. Gioris in the course of the action and at trial, Mr. Gioris chose not to cross examine her. I accepted the evidence of Ms. Gioris without hesitation. Her conduct was beyond reproach while that of Mr. Gioris was certainly not. At a minimum, he engaged Ms. Gioris in a law suit without merit and he chose the trial option at his own financial peril. He refused to admit obvious facts and extended the trial thereby.
[14] I have no cause to doubt the accuracy of the description of Mr. Msi’s experience, which extends over twenty years in the field of civil litigation. His rates are reasonable and I accept that the hours he docketed on Ms. Gioris’ behalf were both reasonable and necessary
[15] The rates sought for partial indemnity are very close to Mr. Msi’s actual rate.
[16] Ms. Gioris seeks an award of substantial indemnity costs in view of the fact that Mr. Gioris raised allegations of fraud or fraud-like behavior (deceit or dishonesty) and failed to establish such claims at trial. Such claims constitute attacks on the reputation and character of the defendant and can entitle the defendant to a higher award of costs than would otherwise apply.[^3]
[17] In my view, the allegations made against Ms. Gioris were factually unsupported by credible evidence and the very kind of allegations that our courts base awards of enhanced costs upon in circumstances such as those presented in this case.
[18] This said, however, I take from the whole of the evidence that Mr. Gioris is a man of modest means and he is very unlikely to be able to afford to pay the amounts of money that otherwise Ms. Gioris would be entitled to recover from him in the circumstances of the this case.
[19] Although I have no submissions from him from which I may glean Mr. Gioris’ reasonable expectations of the costs that he may be exposed to by taking Ms. Gioris to trial, he knew that he faced an exposure to costs because I explained that reality to him at the opening of the trial. He pressed on regardless but at his own peril.
[20] Having considered the submissions of Ms. Gioris, the relevant factors as detailed in rule 57 and having stepped back to consider the overall fairness of the costs to be awarded in this matter, I fix and allow the disbursements claimed of $1,267.94 plus H.S.T. on disbursements of $45.92 plus fee items of costs of $30,000.00.
Moore J.
DATE: 15 March 2013
[^1]: R.S.O. 1990, c.C.43
[^2]: R.R.O., Reg. 194.
[^3]: Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.) and McNaughton Automotive Ltd. v. Co-Operators General Insurance Co. (2008), 2008 ONCA 597, 95 O.R. (3d) 365 (C.A.)