ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-CV-449178
DATE: 20140226
BETWEEN:
G.C.
Plaintiff
– and –
ATTORNEY GENERAL OF ONTARIO
Defendant
Kim Ferreira, for the Plaintiff
William Manuel and Abel Fok, for the Defendant
HEARD: In Writing
Perell, J.
REASONS FOR DECISION - COSTS
[1] Pursuant to Rule 21.01 (1)(a) and 21.01 (1)(b) of the Rules of Civil Procedure, the Attorney General moved to have G.C.’s Amended Statement of Claim struck out without leave to amend and for a dismissal of G.C.’s action for failure to plead a reasonable cause of action.
[2] For reasons reported as G.C. v. Ontario (Attorney General), 2014 ONSC 455, I granted the Attorney General’s motion. The Attorney General now seeks costs for the action in the amount of $32,247, all inclusive of fees and disbursements of $100.
[3] G.C. submits that the quantum requested is excessive and outside the reasonable expectations of the parties for a straightforward motion to strike. G.C. submits that the Attorney General has considerable experience in these kinds of motions and it was unnecessary to expend $32,247 for its successful motion. G.C. submits that $3,000, all inclusive would be the appropriate award and notes that this sum was awarded in Grant v. Toronto Police Services Board, 2005 CarswellOnt 3974.
[4] G.C. argues further that the court should take into account his personal financial circumstances. In his costs submissions, he states:
Further, the Crown is well aware of the Plaintiff’s financial circumstances. The amount it is requesting would bankrupt the Plaintiff. The Plaintiff is a young man, with limited means, limited education and living on social assistance because of mental health issues that prevent him from securing stable and regular employment. The [Plaintiff] simply does not have the means to pay the quantum being requested. Our firm has represented the [Plaintiff] throughout on a pro bono basis and has not looked for any remuneration. In other cases, the Court has deemed it reasonable to consider and take into account the hardship of the Respondent in properly reducing the costs being sought: Mather v. Great Atlantic & Pacific of Canada, 2010 ONSC 1310, [2010] O.J. No. 825 (S.C.J.) at paras. 33 and 34. The [Plaintiff] has been through enough of an ordeal in the criminal proceeding and manslaughter trial. There is simply no rational basis to force the [Plaintiff] to incur the level of costs the Crown is now requesting. To do so will cause greater hardship to the [Plaintiff].
[5] In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.) at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:
- As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[6] In my opinion, in the case at bar, the amount of costs claimed by the Attorney General is somewhat excessive, but I see no purpose to be served by reducing the quantum to make it a reasonable sum, because I think this is an appropriate case to make no order as to costs.
[7] In Morden and Perell, The Law of Civil Procedure in Ontario (1st ed.), I discuss the ability to pay as a factor in awarding costs at p. 660 as follows:
It is appropriate for the court to consider the financial ability of the party to pay an award of costs and the consequences of making or not making the award to the parties: Euteneier v. Lee, [2003] O.J. No. 4239 (C.A.).
There is divided authority about whether impecuniosity is a relevant factor and may be considered in awarding and in enforcing costs awards, including determining when the costs should be payable. In our opinion, the better and preferable line of authority is that the court may consider a party’s impecuniosity when making a costs award: Larabie v. Montfils, 2004 11299 (ON CA), [2004] O.J. No. 179 at paras. 13-21 (C.A.); J.S. Saville Holdings Inc. v. Suzuki Canada Inc., [1995] O.J. No. 3758 (Gen. Div.); Tanner v. Clark, 2002 34779 (ON SCDC), [2002] O.J. No. 3702 (S.C.J.), aff’d (2003), 2003 41640 (ON CA), 63 O.R. (3d) 508 (C.A.); Coombs (Litigation Guardian of) v. ACE INA Insurance, [2004] O.J. No. 3788 (S.C.J.); Leo A. Seydel Ltd. v. Francis, [2005] O.J. No. 706 (S.C.J.); Christian Jew Foundation v. Christian Jew Outreach, [2007] O.J. No. 2140 (S.C.J.); Burrell v. Peel (Regional Municipality) Police Services Board, [2007] O.J. No. 4232 (Master), aff’d 2010 ONSC 1387, [2010] O.J. No. 971 (Div. Ct.). There are, however, authorities that adopt the categorical position that impecuniosity will not insulate a party from liability of costs otherwise payable: Meyers v. Toronto (Metropolitan) Police Force, 1995 11086 (ON SCDC), [1995] O.J. No. 1321 (Ont. Div. Ct.); Abbott v. Reuter-Stokes Canada Ltd., [1988] O.J. No. 2193 (S.C.J.); Stacey v. Barrie Yacht Club, [2003] O.J. No. 4171 (S.C.J.); Baksh v. Sun Media (Toronto) Corp. (2003), 2003 64288 (ON SC), 63 O.R. (3d) 51 (Master); Heu v. Forder Estate, [2004] O.J. No. 705 (Master); Scavarelli v. Bank of Montreal, [2004] O.J. No. 2175 (S.C.J.); Cossette v. Gojit (Brampton) Inc., [2005] O.J. No. 6098 (Master); Kirwin v. Silver Brooke Golf Course Inc., [2006] O.J. No. 1571 (S.C.J.). In any event, impecuniosity is not a shield to costs liability where a party has consistently failed to act reasonably: Burrell v. Peel (Regional Municipality) Police Services Board, supra at para. 14; Christian Jew Foundation v. Christian Jew Outreach, supra at para. 69.
[8] In Walsh v. 1124660 Ontario Limited, 2007 27588 (ON SC), [2007] O.J. No. 2773 at paras. 15-20 (S.C.J.), Justice Lane held that a categorical rule that impecuniosity may not be considered as a factor in awarding costs creates a straightjacket inconsistent with the discretionary nature of costs orders. See also: Agius v. Home Depot Holdings Inc., 2011 ONSC 5272 (S.C.J.) and Balasundaram v. Alex Irvine Motors Ltd., 2012 ONSC 5840 (S.C.J.).
[9] In Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc. (2002), 2002 49474 (ON SC), 59 O.R. (3d) 409 (S.C.C.), the jury dismissed a personal injury claim, but Justice Sachs ordered that the plaintiffs ought not to be required to pay costs because of the their limited financial resources and the fact that they were coping with the effects of their daughter's injury.
[10] In Baines v. Hehar, 2013 ONSC 849, a self-represented plaintiff in a motor vehicle accident case was not ordered to pay costs notwithstanding the dismissal of her case and notwithstanding that she had refused an offer to settle. There was no utility in awarding costs against her and it was not in the interests of justice to do so.
[11] In my opinion, in the case at bar, it is appropriate in exercising the court’s jurisdiction to award costs to take into account the Plaintiff’s personal circumstances including his impecuniousity, the fact that he is receiving social assistance, and his mental health issues that prevent him from securing stable and regular employment. In my opinion, it is also appropriate to take into account that he obtained legal assistance to pursue his claims in a professional manner.
[12] Taking these factors into account, I conclude that the case at bar is an appropriate case to make no order as to costs.
Perell, J.
Released: February 26, 2014
COURT FILE NO.: 12-CV-449178
DATE: 20140226
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C.
Plaintiff
‑ and ‑
ATTORNEY GENERAL OF ONTARIO
Defendant
REASONS FOR DECISION - COSTS
Perell, J.
Released: February 26, 2014