SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-445971
DATE: 20150609

RE: MUTAZ ELMARDY, Plaintiff

AND:

TORONTO POLICE SERVICES BOARD and POLICE CONSTABLE PAK, Defendants

BEFORE: F.L. Myers J.

COUNSEL:
Andrew J. MacDonald for the plaintiff

David A. Gourlay for the defendants

HEARD: June 9, 2015

COSTS ENDORSEMENT

[1] After trial, I granted judgment in favour of the plaintiff for general damages of $9,000, punitive damages of $18,000, and several declarations of right to the effect that the defendants had violated the plaintiff’s rights under the Canadian Charter of Rights and Freedoms.

[2] The plaintiff seeks costs of approximately $70,000 on a full indemnity basis. He relies upon the misconduct of the police in the conduct of the proceeding to justify enhanced costs. The defendants ask that there be no order as to costs. They say that the plaintiff should have brought this proceeding under the Simplified Rules that apply to cases worth less than $100,000. They also argue that costs sought are disproportionate to the amount in issue. It seems to me that proportionality is an access to justice issue and I will deal with it on that basis below.

[3] The plaintiff recovered only modest monetary damages. While quantifying damages is not an exact science by any means, the plaintiff knew that he had not suffered significant physical injuries or monetary losses by the defendants’ acts. It can be difficult to be a plaintiff with low potential damages. No one wishes to have been hurt worse. But the reality of the plaintiff’s good fortune in not being hurt badly is that low damages can make civil litigation uneconomical.

[4] In order to try to improve access to civil justice for smaller cases, Rule 76 provides a special procedure available to cases in which the amount involved is below $100,000. Rule 76 provides for a number of mechanisms to contain costs such as limited discoveries and summary trials. Rule 76.13(3) provides that where a plaintiff recovers judgment of less than $100,000 and has not elected to bring the case under the Simplified Procedure, the plaintiff “shall not recover any costs” unless it was reasonable to have brought and continued the case under the normal procedure.

[5] In Garisto v. Wang, 2008 ONCA 389 the Court of Appeal held that the costs provision is the mechanism that drives the whole process. That is, unless the costs penalty is enforced, people will not elect to follow the Simplified Procedure.

[6] Rule 76 applies where the plaintiff’s claim is “exclusively” for money or property. Here the plaintiff sought declarations of right in addition to monetary relief. I granted declarations and noted that I thought that doing so was an important aspect of vindicating the plaintiff’s rights in this case. However, I would not rely upon this as a basis to avoid the costs consequence of Rule 76. If all that was required to avoid the requirements of Rule 76 was the addition of a request for relief by way of declaration in the statement of claim, the beneficial purpose of the rule would be severely undermined. In most cases the addition for a claim for a declaration has no independent meaning or value.

[7] Civil cases are generally about money. Civil litigation lawyers are used to telling their clients that courts do not award principles; they award money. If it costs $1,000 to obtain a judgment for $500, there is no victory in principle; there is just a loss of $500. While the litigant may claim a victory in principle to his or her friends and family, when it comes time to pay the lawyer’s bill, litigants tend to subscribe to the economic analysis.

[8] But there are exceptions. Defamation cases are an obvious example. The nature of the wrong in defamation cases is injury to one’s reputation. Money does little to restore an injured reputation. The victory in principle may do so however. Similarly, cases about violations of civil rights may not really be about money. The amount awarded does not really address the injury for being unconstitutionally detained, searched, and deprived of one’s rights on detention under s.10 of the Charter. Money damages addressed Mr. Elmardy’s physical and psychological injuries for battery as best as the law can do so. But, like defamation, there is a larger element of principle at issue in a civil Charter case.

[9] As the Court of Appeal noted in Garisto, Rule 76.13 contains its own exception. Costs can be awarded where the plaintiff was reasonable in proceeding under the ordinary procedure. One aspect of the determination may be an assessment of whether awarding the plaintiff costs (or declining to exact the punitive costs penalty) would undermine the integrity of the Simplified Procedure. Garisto at para. 18. As explained by Sharpe J.A. at para. 17 of Garisto,

The purpose of the simplified procedure regime is to reduce legal costs and to enhance access to justice by making available a cheaper and more expeditious procedural regime appropriately geared to the litigation of modest claims.

[10] In my view, penalizing the plaintiff in the circumstances of this case would impair access to justice rather than promoting it. In this case, the plaintiff knew he had a legal fight on his hands. He was up against an organization that denied the truth of his claims before, leading up to, and all the way through the trial. He cannot be faulted for needing more than the 2 hours of examinations for discovery that would have been available under Rule 76.04(1). Nor can he be faulted for needing more than 50 minutes to cross-examine the police witnesses as would have been available under Rule 76.12(1)6.[^1]

[11] In this case, it was the cross-examination of the non-defendant police officers that provided the corroboration of the basic truthfulness of the plaintiff’s story and exposed the lack of candour in Constable Pak’s version. Constable Poole saw the chewing tobacco and heard it referred to as “chat”. Inspector Crone confirmed that he called the officers and determined that they had seized Mr. Elmardy’s expired driver’s license. Constable Saltmarsh saw Mr. Elmardy’s goods laid out in front of him.

[12] This case was made in cross-examination. The plaintiff’s counsel was reasonable in seeking a full trial process to ensure that he could do so. A full oral examination for discovery to pin Constable Pak to his story was a key element of the plaintiff’s ability to prove his case at trial. By pinning Constable Pak to his version of events, the strategy of obtaining corroboration for the plaintiff by finding facts where the evidence given by others diverged became possible. The plaintiff’s counsel was fundamentally successful implementing this tried and true trial strategy. In a case where a party must rely upon cross-examinations of adverse witnesses to prove his or her own case, it is important for the full array of procedural rights including discovery and the full rigour of the trial process to be available. Especially when what was in issue was not principally money but Charter rights and the restoration of Mr. Elmardy’s “feeling” of the law, the fact that the judgment was for a modest monetary amount does not undermine the reasonableness of the plaintiff’s need for the full procedural panoply of the ordinary civil trial process.

[13] At the outset of the trial, the defendants’ counsel asked that Constable Poole not be required to leave the courtroom under the normal witness exclusion order. Counsel said that he viewed Constable Poole as one of his clients. I inquired if counsel was consenting to Constable Poole being made a party defendant to expose the conflict of interest in the suggestion that counsel was making. He quite rightly declined. She was not a party and was not excepted from the witness exclusion order. The defendants’ effort to improve the chances of their witnesses agreeing is an issue that goes to costs in my view.

[14] Finally, I deal with the issue of the lack of video evidence. Prior to the trial, the Police Service advised the plaintiff by way of answer to undertaking that the camera that is trained on the reception desk at the police station does not record. Therefore, there was no video made of Mr. Elmardy’s discussion with Inspector Crone. In cross-examination of Inspector Crone the following exchange took place:

Q. 51 Division is a pretty new division, would you agree with me? A fairly state-of-the-art building?

A. The facility itself, at the time, was fairly new, yes.

Q. And it’s full of video cameras, right?

A. I guess it is.

Q. And there’s a video camera that is trained right on the front desk.

A. There should be, yes.

Q. And as an undertaking in this proceeding, I was informed that - that the video cameras, although trained on the front desk, don’t record. Do you have any information on that?

A. I have no information on that. At the time that -- it’s my - my understanding that the - the new facility has cameras throughout the entire building, and they’re all to be -- they are normally all in normal working order.

Q. But they don’t record.

A. They do record.

[15] Under re-direct examination, the following question was asked and answered:

Q. You were asked about the specifics of the video recording equipment at 51 Division.

A. Mm hm.

Q. Do you have specific knowledge as to any recordings that were recorded on January 15th, 2011?

A. No, I don’t.

[16] Based on Inspector Crone’s evidence, I found that the camera recorded Mr. Elmardy’s attendance at the police station and I was critical of the position taken by the Police Service. In their costs submissions, the defendants have complained that they were given no notice of any issue of spoiliation of evidence and they re-iterate as a fact that the camera at the reception desk does not record. I take counsel at his word of course.

[17] However, there was no issue of spoiliation raised by the plaintiff that required notice. The plaintiff did nothing wrong. The plaintiff’s counsel asked the question in the form of the information that he had been provided by the Police Service. He led the witness in terms of the answer to undertaking by asking, “But they don’t record.” Everyone in the room expected Inspector Crone to say “That’s correct.” But the witness volunteered his personal knowledge to the contrary as the senior officer in charge of the station. In re-direct examination, counsel for the defendants got the Inspector to say that he did not have specific knowledge of a recording of the actual events in issue. But that evidence did not support the answer to the undertaking or undermine the Inspector’s evidence that the camera recorded. The defendants chose not to call any further witnesses on the issue.

[18] While I do not doubt counsel’s word, it is not appropriate for the defendants to try to undermine the testimony of their own witness by delivering unsworn submissions after trial when they had the ability to call any evidence they wanted to call on the issue at the trial. The issue was solely within the defendants’ knowledge. Counsel should not be putting his unsworn word to the court in submissions that are contrary to the evidence. Doing so puts the court in an untenable position.

[19] Government bodies and officials should follow the law and play by the rules. When they fail to do so, they can expect consequences like any other litigant. In this case, parts of the evidence given by the defendant Constable Andrew Pak and by Constable Poole were found to be untruthful. They tried unsuccessfully to mesh their stories. They tried unsuccessfully to have Constable Poole hear Constable Pak’s testimony presumably to aid them to do so. Moreover, the defendants did not deal at all appropriately with the video evidence or lack thereof.

[20] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[21] Meritorious lawsuits against the police are hopefully few and far between. Frivolous lawsuits are being dismissed more readily than ever with the introduction of Rule 2.1 and otherwise. However, it is very much in society’s interest that litigants not be dissuaded from bringing claims of this type that have merit. It is hard enough to have the temerity to stand up to the police on the sidewalk. The institutional barriers to doing so in a court of law are formidable as this case demonstrates. The costs penalty in Rule 76.13 should not be applied to dissuade meritorious cases in which victories in principle may indeed matter more than money. In my view, the plaintiff was reasonable in bringing this case under the ordinary procedure. Moreover, the defendants’ conduct at the trial was sufficiently shocking and egregious (both in the content of testimony and tactics employed) to justify an award of cost on a punitive basis. I have reviewed the costs submissions and outlines of both sides. The hours and rates claimed by the plaintiff’s counsel are fair and quite reasonable in my view. Weighing the factors under Rule 57.01, including the amount of costs to which the unsuccessful party ought reasonably expected to have been exposed, and favouring access to justice, it is fair and reasonable in my view that the defendants jointly and severally pay to the plaintiff the sum of $60,000 inclusive of fees, disbursements, and taxes on a substantial indemnity basis.

________________________________ F.L. Myers J.

Date: June 9, 2015

[^1]: If he chose the Simplified Procedure, a pre-trial judge could have forced the plaintiff into a summary trial under Rule 76.10(6).