SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-2453-13

DATE: 2014-07-02

REVISED ENDORSEMENT RELEASED: 2014-07-21

(Counsel names added)

Parties

RE: Ryan McIlvenna, Plaintiff

AND:

The City of Greater Sudbury, Kevin Lyle, Victor Leroux, The Greater Sudbury Police Services Board, Her Majesty the Queen in Right of Ontario, Defendants

Before

The Honourable Madam Justice Louise L. Gauthier

Counsel

Ryan McIlvenna, acting in person

Spencer D.W. Ball, for the Defendants

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] The moving parties seek an Order that the Plaintiff pay partial indemnity costs in the amount of $2,028.66 for the motion to strike the Amended Statement of Claim, issued on May 6, 2013, as disclosing no cause of action.

[2] On June 17, 2014, the Plaintiff was invited to submit a response to the moving parties’ costs submissions. I have received no submission from the Plaintiff.

[3] Subsection 131(1) of the Courts of Justice Act provides that:

“Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[4] The general principles to be considered in awarding costs are set out in Rule 57.01 of the Rules of Civil Procedure, and are, in addition to the result in the proceeding the following:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) Any other matter relevant to the question of costs.

[5] Rule 57.03 provides for the court to fix the costs of a contested motion and order them to be paid within 30 days.

[6] The overall objective in fixing costs is to arrive at an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) No. 2634 (C.A.).

[7] Although the Plaintiff was afforded the opportunity to deliver a further amended Statement of Claim, the moving parties were nonetheless successful in their motion to strike the pleading as disclosing no reasonable cause of action. The successful party is presumptively entitled to costs.

[8] The moving parties delivered a Factum and Book of Authorities for the hearing of the motion, as did the Plaintiff.

[9] I have reviewed the Costs Outline delivered by the moving parties. It sets out reasonable fees and disbursements for the motion.

[10] There is no juristic reason to disentitle the successful party to costs.

[11] The Plaintiff shall pay costs of the motion to the moving parties, fixed in the amount of $2,000, inclusive of fees and disbursements. The costs are to be paid within 30 days.

The Honourable Madam Justice Louise L. Gauthier

Date: July 21, 2014