COURT FILE NO.: CV-05-302408

DATE: 2014/10/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Campbell, Plaintiff, Moving Party

AND:

Leah Edwards, Tanya Edwards et al. , Defendants, Responding Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: E.J. Guiste, Counsel for the Plaintiff

R. Love, Counsel for the Defendants Toronto Police Services Board, D/C. Joseph McNeilly #4423, PC. Lobsiger #8302, P.C.J. Humeniuk and P.C. Craig Drennan

COSTS ENDORSEMENT

[1] The plaintiff’s malicious prosecution action commenced on December 16, 2005 was dismissed by the Registrar for Delay on June 2, 2009. The plaintiff’s motion to set aside the Registrar’s Order was heard on February 26, 2014 and was dismissed. The Order asked that the parties attempt to agree on the issue of costs but if unable to do so, they were invited to deliver brief written costs submissions.

[2] The defendants, Toronto Police Services Board, D/C Joseph McNeilly #4423, P.C. Lobsiger #8302, P.C. J. Humeniuk and P.C. Craig Drennan (“the police defendants’) were entirely successful in opposing the plaintiff’s motion. They seek partial indemnity costs of $10,267.96 but are prepared to reduce the request to $7500.00 in light of the plaintiff’s limited financial means.

[3] Relying on Rule 57 factors the police defendants submit that the claim in the amount of $5,325,000.00 was of high importance to the police defendants and to their reputation. They concede that the motion was not complex but it required detailed affidavit evidence.

[4] The plaintiff was charged criminally, for assault and criminal assault and was fully vindicated. He was also charged with failure to comply, was required to remain in custody and was fully vindicated. His claim for malicious prosecution was facilitated by Legal Aid given he is a man of limited means. He filed no affidavit material in support of his impecuniosity but the police defendants have conceded his limited financial means.

[5] The plaintiff asks the court to exercise its discretion to not order costs, as a costs award “would ruin the plaintiff”.

[6] Plaintiff’s counsel relies on Walsh v 1124770 Ontario Limited, 2007 27288 (ONSC) and Jeremiah v Ontario Human Rights Commission, 2008 78988 where the court recognized issues of public policy and public interest and ordered no costs in an effort to encourage access to justice for more than “simply those privileged persons with “iron-clad cases”. Molloy J. stated in Jeremiah, supra that “persons with arguable human rights cases should not be deterred from bringing them before the courts for fear that if unsuccessful they will face financial ruin.”

[7] In Walsh, supra Lane J. stated at page 9:

A costs order against her…would send a message which would deter others who may have better cases from pursuing a remedy because of a disastrous impact of costs if they lose the case…It is not in the public interest to deter the people from using their own costs for fear of the costs consequences if they lose the case.

[8] In both cases noted above, the plaintiffs’ actions were dismissed at trial. Their evidence was heard. They had their day in court. In the case at bar, the plaintiff’s action was dismissed for delay. The overriding principle that an action should be resolved or moved along expeditiously was not adhered to. Issues of lack of prejudice to the defendants and finality were inadequately addressed by the plaintiff on the motion.

[9] In my view, this is not a situation of parties being deterred from bringing actions but rather is an example of the need for parties to comply with the Rules in an effort to move actions along so the parties do get an opportunity to get heard on their merits.

[10] The police defendants’ partial indemnity bill has been reduced to $7500.00. I am content that the time was spent as outlined. I am also aware of the plaintiff’s limited financial means.

[11] Costs are ordered payable by the plaintiff to the defendants within six months from the date of this Order fixed in the amount of $6000.00.

MASTER RONNA M. BROTT

Date: October 3, 2014.