Court File and Parties
Court File Nos: 03-CV-244790CM2
03-CV-248513CM2
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Nathan Benson
Applicant
- and -
Andrzej Cichorczyk, David Dick, City of Toronto, and Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General
Respondent
AND BETWEEN:
Gary Lee Boomer, Jason Junior Colson and Wayne John Kennedy
Plaintiff
- and -
Andrzej Cichorczyk, David Dick, City of Toronto, and Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General
Defendants
BEFORE: The Honourable Mr. Justice Kevin Whitaker
COUNSEL:
Richard Levin, for the Plaintiff
Doug Smith & Kathryn Shani, for the Defendants
Richard Lebkowski & Jae Cho, for the Plaintiff Gary Boomer
HEARD: Written Submissions
COSTS ENDORSEMENT
Introduction
1I have reviewed the costs submissions of the parties following this 8 day trial, the defendants being wholly successful.
2I have considered the factors set out in Rule 57 which should govern the exercise of my discretion to award costs. I am particularly mindful of the need for costs to be proportional to the circumstances and context of this dispute, and the reasonable expectations of the parties – particularly the unsuccessful.
3The plaintiffs suggest that the usual considerations – mainly, that the losing party should pay costs – is not appropriate here where the plaintiffs were attempting to protect and safeguard the public interest and are impecunious.
4Although I have no hard evidence of the plaintiffs’ impecuniosity, I am prepared to infer from the evidence at trial that both may be close to impecuniosity if not there already.
5As the defendants suggest, the plaintiffs have received some funds from the partial settlement of this matter in dealing with the compensatory claims.
6As to the public interest component of the litigation, the device of punitive damages here was for the plaintiffs, an unfortunate choice.
7I have also considered the offer to settle.
8The plaintiffs are seeking their costs of $57,000.00 and $48,000.00 for Mr. Boomer and Mr. Benson, respectively.
9The defendants, City of Toronto and Mr. Dick, seek partial indemnity costs of $123,897.60.
10The defendants, City of Toronto and Mr. Dick, are entitled to costs fixed at $12,000.00 inclusive of taxes and disbursements payable forthwith. Each of the two plaintiffs is responsible severally for half of this amount – that being $6,000.00 to be divided on agreement between the two defendants seeking costs.
Whitaker J.
Released: March 11, 2014