ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-04-0502-00
DATE: September 22, 2014
B E T W E E N:
Patricia Magiskan
Patricia Magiskan, for the Plaintiff
Plaintiff
- and -
Her Majesty the Queen in Right of Ontario, Monte Kwinter, D.J. Squires, G. Noel, Chief Firearms Officer of Ontario Dana Ostrom, Nishnawbe-Aski Police Service, Nishnawbe-Aski Police Services Board, Chief of Police B.W. Luloff, The Police Services Board of the City of Thunder Bay, Constable James Glenna and Constable Winston Wong
Stephen J. Wojciechowski, for the Defendants
Defendants
HEARD: at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons for Costs
[1] Late in 1997, the defendant police officers answered Ms. Magiskan’s call for help, arrested her fiancé and charged him with assaulting her. When she interfered with their attempts to arrest him, Ms. Magiskan, then a police officer with a different police force, was warned not to interfere. When she ignored the warning, she was arrested. She was charged with assaulting and obstructing a peace officer.
[2] The plaintiff’s fiancé ultimately pleaded guilty to assaulting her even though Ms. Magiskan denied that he had done so. Ms. Magiskan was found guilty of assault and obstruction at trial but was acquitted on appeal with reasons delivered in October, 2003.
[3] The plaintiff sued the defendants for general damages in the amount of $100,000 for assault, unlawful arrest and detention; for damages for breach of her Charter rights; for punitive damages; as well as special damages in the amount of $2,217.50 for repairs to her vehicle. The case came to trial almost fourteen years after the events complained of. The claim was dismissed with provisional damages assessed at $5,000.
[4] The defendants claim costs of a ten-day trial on a partial indemnity scale, at $154,623.78. Of that amount, $53,278.03 is for disbursements. The actual bill for the defence of the claim was $176,000.
[5] Senior counsel, Mr. Wojciechowski, was called to the bar in 1990, and claims an hourly rate of $225 per hour on a partial indemnity scale. Ms. Latta was called in 2002 and claims an hourly rate of $150 on a partial indemnity scale.
[6] The defendants served an offer to settle in September, 2007, proposing that the claim be dismissed without costs if the offer was accepted before October 15, 2007. The offer to settle also contained alternative costs dispositions contingent upon acceptance of the offer at various stages in the proceedings. The offer was open for acceptance at the commencement of trial. Unfortunately, the offer was not accepted. Nevertheless, the defendants are not seeking substantial indemnity costs from the date of the offer.
[7] The case was moderately complex. Initially, multiple defendants were sued. By the time of trial, there were only three left. The plaintiff abandoned her claim for negligence at trial. The issues remaining included a consideration of the powers of arrest available to police officers; what constitutes reasonable grounds for arrest; use of force principles measured against the actions of the officers; and the plaintiff’s response to their use of force. As well, the parties argued limitations issues. Finally, the court was required to assess general, punitive and Charter damages in accordance with evolving case law.
[8] Every case is important to the parties involved in it. This case involved a determination of when a member of the public is entitled to interfere with a police arrest. From the perspective of police operations, this issue is critical. The police argued that they should not have to weigh their actions in the midst of an arrest to assess whether a third party is justified in intervening; accordingly, the police mounted a vigorous defence to the plaintiff’s claim.
[9] The defendants argue that there were many delays that unnecessarily lengthened the proceeding. The statement of claim was issued in July, 2004. It was outside the limitation in the Public Authorities Protection Act, a fact that was conceded at trial.
[10] Once the claim was launched, it proceeded at a leisurely pace. It required three status hearing appearances and was once dismissed for delay. The cost of status hearing attendances was almost $2,000.
[11] It took the plaintiff a year to finally answer her undertakings which culminated in a motion for compliance with undertakings. Two trial dates were set and adjourned before the trial finally commenced. The first trial date in May, 2010, was vacated when the plaintiff delivered an expert’s report in March, 2010, contrary to the court’s order to serve the report by November, 2009. The defendants then retained an expert and the trial was rescheduled to November, 2010. The November trial was adjourned due to illness of the plaintiff’s counsel. The adjournments of trial caused wasted trial preparation that had to be repeated once a new trial date was set. The case finally started in April, 2011, continuing in August and October, 2011. Reasons for judgment were delivered in December, 2011.
[12] The defendants submit that the plaintiff denied or refused to admit facts that should have been admitted. For example, she denied that she spoke to the defendant officers when they answered her call for assistance, an allegation that was not proven in either the criminal trial or the appeal.
[13] Secondly, the plaintiff denied vigorously that her fiancé assaulted her, even though he pleaded guilty to having done so.
[14] Thirdly, the plaintiff denied that she obstructed or assaulted Officer Wong, a finding that was not sustained in the criminal trial or appeal. The alternative argument in this case was that she was justified in doing so because of her belief that the defendant officers used excessive force to arrest her fiancé.
[15] The argument of costs in this case has also been drawn out. Mr. Wojciechowski argued costs on February 7, 2013. At that time, the plaintiff’s counsel was present for the argument but sought leave to file written submissions because he was then unwell. That request was granted. Mr. Thatcher was allowed until April 2, 2013 to file written submissions with Reply due on April 5th.
[16] That date for written submissions by the plaintiff was not met and further extensions were granted from time to time. Mr. Thatcher was removed as solicitor of record on December 5, 2013 as it was apparent that illness precluded him from making written submissions. Ms. Magiskan was ordered to appoint new counsel on or before February 28, 2014. She did not do so. Her written submissions on costs were ordered to be delivered on or before April 30, 2014.
[17] Ms. Magiskan asked for and was granted extensions of the time to file written submissions on costs. She complained that she was having trouble obtaining her file from her former counsel and that she was unable to retain counsel to prepare the cost submissions. She asked that the matter await the outcome of a civil suit against her former counsel.
[18] At the last court attendance in June, 2014, she sought a further extension of the date to file written submissions. Mr. Wojciechowski offered to provide her with an additional copy of his cost submissions, bill of costs and book of authorities. When she failed to pick these up, he had them couriered to her. Of course, the plaintiff had full access to the court files, including the transcripts of her criminal trial, reasons for judgment in the criminal trial and appeal as well as in this trial. Pleadings and orders from the interlocutory proceedings are all available from the court file.
[19] The last extension was made peremptory to the plaintiff. Her submissions were finally filed on September 11, 2014. Ms. Magiskan had some assistance of counsel in preparing her submissions. She submits that:
(a) the bill of costs is very high;
(b) costs are claimed for issues the defendants did not win, such as the limitation period;
(c) work was done unnecessarily;
(d) she is unable to pay costs on a scale that is being sought;
(e) she has been through a difficult time personally and professionally and should not be further burdened with costs;
(f) any delays were caused by her counsel and not by her; and
(g) Mr. Thatcher should be required to pay any costs incurred since trial because the delays are attributable to him.
[20] The plaintiff did not file evidence as to her own legal fees; accordingly, it is not possible to consider her reasonable expectations in relation to costs.
[21] With respect to the limitation argument, the plaintiff conceded at trial that her tort claims were statute-barred. However, her claims for Charter relief were not found to be out of time, as they were started within time after the appeal of her criminal conviction was finalized. Thus, success was divided on the limitations issue. This issue did not require much time in argument.
[22] The plaintiff does not specify what work was done unnecessarily. The defendants have included their dockets which I have reviewed. I do not agree that the defendants have claimed costs for unnecessary work.
[23] The plaintiff claims she cannot pay the costs being sought. However, she did not file any evidence about her income and circumstances. Accordingly, there is no evidence by which to gauge her submission that she is impecunious. Nor is there any evidence that the plaintiff has been through a difficult time personally and professionally, such that the reasoning in Spencer v. Ottawa Police Services Board, [2005] O.J. No. 1115 (S.C.J.), para. 21 might be considered. I note that the costs order in Spencer was made on a summary judgment motion in which the defendants were successful.
[24] The plaintiff does not specify what delays were caused by her counsel during the case. The defendants did not file a supplementary bill of costs to claim for additional time after costs were argued. Thus, the only costs claimed up until costs were argued in February, 2013 are for the usual review and drafting of the judgment, and preparation of the bill of costs. Apart from illness of counsel, there is no evidence how the delays in the case were caused.
[25] The plaintiff is fortunate that the defendants do not seek substantial indemnity costs after the offer to settle was served or claim for additional attendances when extensions for filing submissions were sought, or the bill of costs would be substantially greater.
[26] The defendants were wholly successful on the key issue of liability. The provisional damages assessed were very minor in relation to the claims made. In my view, the bill of costs is reasonable, even modest, given the nature and length of the proceeding and the cost of expert reports. See, by way of comparison, the costs award in DMX Plastics Ltd. v. Misco Holdings Inc., [2009] O.J. No. 142 (S.C.J.) where costs of $81,000 including disbursements, and GST. were awarded for a five-day trial.
[27] In Fernandes v. RBC Life Insurance Co., [2008] O.J. No. 3191, the court awarded costs of $100,000 inclusive of fees, disbursements and GST. for a five-day trial with a long procedural history. This costs award was sustained on appeal: 2009 ONCA 864, [2009] O.J. No. 5240 (C.A.).
[28] The plaintiff is ordered to pay to the defendants, The Police Services Board of the City of Thunder Bay, Constable James Glenna and Constable Winston Wong their costs on a partial indemnity scale fixed at $154,623.78, inclusive of fees, disbursements and GST.
Regional Senior Justice H.M. Pierce
Released: September 22, 2014
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COURT FILE NO.: CV-04-0502-00
DATE: September 22, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Patricia Magiskan
Plaintiff
- and –
Her Majesty the Queen in Right of Ontario, Monte Kwinter, D.J. Squires, G. Noel, Chief Firearms Officer of Ontario Dana Ostrom, Nishnawbe-Aski Police Service, Nishnawbe-Aski Police Services Board, Chief of Police B.W. Luloff, The Police Services Board of the City of Thunder Bay, Constable James Glenna and Constable Winston Wong
Defendants
REASONS ON COSTS
Pierce, RSJ
Released: September 22, 2014
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