Court File and Parties
Court File Nos: 03-CV-244790CM2
03-CV-248513CM2
Date: 20140311
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
[1] I have reviewed the costs submissions of the parties following this 8 day trial, the defendants being wholly successful.
[2] I 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.
[3] The 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.
[4] Although 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.
[5] As the defendants suggest, the plaintiffs have received some funds from the partial settlement of this matter in dealing with the compensatory claims.
[6] As to the public interest component of the litigation, the device of punitive damages here was for the plaintiffs, an unfortunate choice.
[7] I have also considered the offer to settle.
[8] The plaintiffs are seeking their costs of $57,000.00 and $48,000.00 for Mr. Boomer and Mr. Benson, respectively.
[9] The defendants, City of Toronto and Mr. Dick, seek partial indemnity costs of $123,897.60.
[10] The 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