ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 53968/08
DATE: 2013-03-25
BETWEEN:
DANIEL CORRIGAN
Plaintiff.
– and –
OPG REALTY INC. cob as Pickering TOWN CENTRE, 20 VIC MANAGEMENT INC., DISHAN JEBAMONEY, DURHAM REGION POLICE SERVICES BOARD, POLICE CONSTABLE Jeffrey TUCKER BADGE NO. 3294, POLICE CONSTABLE MARK BROWN BADGE NO. 3298
Defandants
Jason Bogle, for the Plaintiff
Christopher M. Moore , for the Defendants OPG Realty Inc. cob as Pickering Town Centre, 20 Vic Management Inc., Dishan Jebamoney
Jason Hunt, for the Defendants Durham Region Police Services Board, Police Constable Jeffrey Tucker and Police Constable Mark Brown
HEARD: Written Submissions
JUSTICE B. GLASS
Costs Award
[1] Daniel Corrigan sued the defendants following an altercation at the Pickering Town Centre. The defendants were the owners of the shopping centre, mall security, Durham Regional Police and the individual officers involved in an investigation to a possible break and enter at the mall following closing hours.
[2] The jury dismissed the claims of the plaintiff.
[3] There was no Rule 49 offer to settle.
[4] The plaintiff alleged that he was assaulted, subjected to false arrest and false imprisonment and negligent investigation by the police. At the end of the jury’s deliberations, the jury did not find that the plaintiff had established on a balance of probabilities his allegations. In a nutshell, the jury’s decisions on the questions given to them led to a dismissal of the action against all defendants.
[5] The trial involved some full days and some part days totalling 14 days. The defendants had been prepared to accept the plaintiff discontinuing his action with everyone absorbing their own costs. That was not acceptable to the plaintiff.
[6] There had been motions prior to trial whereby the motions judge reserved costs in the cause. For example, on May 13, 2011 Justice Sosna on a motion regarding undertakings from the plaintiff left cause to be awarded by the trial judge in the cause. Previously, there had been an administrative order dismissing the action for delay following which the action was reinstated.
[7] At the commencement of trial, the plaintiff moved to amend the statement of claim to add a corporation as a plaintiff at a time when the limitation period had expired. The motion was dismissed.
[8] The costs for motions prior to trial are taken into account in the overall costs submissions for the trial as well. In light of the cause being determined in favour of the defendants, costs follow that outcome.
[9] Although the trial involved 14 days, submissions have been advanced that they were not 14 full court days. I interpret the costs submissions for the successful defendants to allow for less than full days. I might add that even though complete days were not engaged for all 14 days, the parties and their counsel were obliged to be available and ready to proceed for all of those days. That being said, costs for all days could be considered by the court.
[10] The civilian defendants seek costs on a partial indemnity basis with legal fees in the sum of $61,793.60 plus HST of $7,231.80 together with disbursements of $4,850.68 and HST of $581.61 for a total of $74,457.69.
[11] The Durham Police Services Board and the officer/defendants claim costs with legal fees in the sum of $26,862.50 plus HST of $3,492.12 together with disbursements of $7,142.66 plus HST $872.72 for a total of $38,370.00.
[12] Durham Police Services Board seeks costs on a higher scale than partial indemnity. They note that the claims of the plaintiff allege bad faith and fraud in the arrest of the plaintiff and the investigation of possible criminal activity. When such allegations are rejected by the jury, a higher scale of costs are requested.
[13] The quantum of the claims were in excess of $2 million. The jury assessed damages at $10,000 total but did not award them to the plaintiff. The defendants submit that this action should have been brought through the Small Claims Court. The costs award should reflect that circumstance.
[14] The plaintiff submits that costs should be no more than $20,000 for each group of defendants, i.e. $40,000. The outstanding motions costs following the cause at trial are downplayed to be irrelevant because the undertakings were provided for that motion. The total time for the trial was not 14 full days, but rather many short days.
Analysis
[15] I note that costs for both sets of defendants could have been much more than those claimed. For example, had there been a request for double the amounts claimed, there would have been a foundation for such an award. However, I will not enlarge on the costs requested.
[16] Succinctly put, the costs claimed might very well have been double the amount requested. At either the sums claimed or an amount double that claimed, a party might reasonably expect costs for all defendants to be well over $100,000. The statement of claim expresses serious claims. To allege that the police service, who was called to a break and enter in progress, demonstrated negligence with their investigation coupled with physical assault upon a person and false arrest are claims of bad faith and in effect fraudulent behaviour by the officers. Had the jury found in favour of the plaintiff, I cannot imagine that his claim for costs would not have been in the range of the amount claimed by the defendants and more. The claims sought damages of millions of dollars coupled with punitive damages and aggravated damages.
[17] The jury did not find that such conduct of the defendants was established. Further, the jury found that the quantum of damages would have been in a lower Small Claims Court amount.
[18] This action involved considerable time by all parties. This action required serious attention by the defendants and with it a considerable amount of time to address the issues.
[19] A party entering into such an action with the allegations advanced would expect costs of more than $100,000 to be involved.
[20] Costs requested will be granted as justified.
[21] Costs to the defendants OPB Realty, 20 Vic Management and Dishan Jebamoney will be fixed at $74,457.69 which is inclusive of HST as set out in paragraph 10 above.
[22] Costs to the defendants Durham Region Police Services Board and the two officers named as defendants will be fixed at $38,370.00 which is inclusive of HST as set out in paragraph 11 above.
[23] I consider both submissions to be partial indemnity. Even though Durham Region Police Services Board referenced the costs as being on a higher scale, I consider that amount presented to be a sum that is well within a partial indemnity scale.
Justice B. Glass
Released: March 25, 2013
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ONTARIO
SUPERIOR COURT OF JUSTICE
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