CITATION: Patrong v. Banks et al., 2015 ONSC 3497 COURT FILE NO.: CV-11-439127 DATE: 20150529
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KOFI PATRONG and ROSE PATRONG
Plaintiffs
- and -
WAYNE BANKS, AL COMEAU, JULIAN FANTINO and TORONTO POLICE SERVICES BOARD
Defendants
Kelley Bryan,
for the Plaintiffs
David Elman,
for the Defendants
READ: May 29, 2015
F.L. Myers J.
REASONS FOR decision on costs
[1] The plaintiffs were successful in resisting the defendants’ motion to strike. The plaintiffs agreed to dismiss their claims on two peripheral causes of action. There was little material of substance devoted to those parts of the pleadings. In my reasons, I wrote:
Costs should follow the event and be awarded in favour of the Patrongs on a partial indemnity basis unless there is good reason to do otherwise. Accordingly, I invite counsel to attempt to agree on costs. If they cannot agree, the plaintiffs may deliver submissions of no more than three pages plus a Costs Outline by May 22, 2015. The defendants may respond with no more than three pages of submissions to which they shall append their own Costs Outline by May 29, 2015. All submissions shall be provided to my Assistant by searchable PDF attachment to an email. No cases should be submitted. Case references, if any, shall be by hyperlinks embedded in counsel’s submissions.
[2] Unfortunately, the parties have not been able to settle costs. When the defendants succeeded on a prior motion before Chiappetta J., they sought over $20,000 in costs. Chiappetta J. declined to award costs on a number of grounds including that the law was unsettled. More fundamentally however, she was concerned with the unfairness of imposing onerous hardship on the plaintiff in the circumstances of the case.
[3] While the police may have wished to push for a precedent, it seems to ignore the human story that Mr. Patrong was seriously injured in what appears to be very questionable circumstances. It is appropriate at this juncture to pay more attention to what experienced criminal law judges have said about the decisions made by the police with respect to a known vicious murderer. The plaintiffs’ pleading was deficient the first time and Chiappetta J. chose not to require them to pay costs. This time round they plainly fixed the pleading to plead into both precisely what Chiappetta J. said and what Moldaver J. (as he then was) found in Jane Doe. The Patrongs should not be deprived of costs when the police try to stretch a precedent and are unsuccessful.
[4] The defendants do not quarrel with the quantum of costs sought by the plaintiffs’ counsel. They are reasonable in terms of rates and hours. I specifically required the defendants to deliver a Costs Outline with their submissions. They chose to ignore my direction because they were not contesting the quantum of the fees sought by the plaintiffs. They then thought better of it and offered to file a costs outline if I “nonetheless desire it.” I thought I had made my desire clear in my reasons.
[5] The defendants shall, jointly and severally, pay forthwith to the plaintiffs, jointly and severally, costs on a partial indemnity basis fixed at $13,441.67 all inclusive.
F.L. Myers, J.
DATE: May 29, 2015
CITATION: Patrong v. Banks et al., 2015 ONSC 3497 COURT FILE NO.: CV-11-439127 DATE: 20150529
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KOFI PATRONG and ROSE PATRONG
Plaintiffs
- and -
WAYNE BANKS, AL COMEAU, JULIAN FANTINO and TORONTO POLICE SERVICES BOARD
Defendants
REASONS FOR DECISION
F.L. MYERS J.
Released: May 29, 2015