ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-CV-331980PD1
DATE: 20150707
BETWEEN:
LINA LOCHNER, PAUL LOCHNER and
GEORGE LOCHNER by his Guardian –
PUBLIC GUARDIAN and TRUSTEE
Plaintiffs
– and –
PC GORDON CALLANAN,
SGT MARK ARMSTRONG,
PC DOMENICO BRUZZESE,
PC DAVID BRAGG,
PC WILLIAM SHIKATANI,
PC GISSA WATERS,
PC STEPHEN CARMICHAEL and
TORONTO POLICE SERVICES BOARD
Defendants
Lina Lochner, self-represented and acting in person
Paul Lochner, self-represented and acting in person
Walter Kim, for the Public Guardian and Trustee Litigation Guardian for George Lochner
WRITTEN SUBMISSIONS ON COSTS
COSTS ENDORSEMENT
DIAMOND J.:
[1] On June 5, 2015, I dismissed a motion brought by the plaintiffs Lina Lochner (“Lina) and Paul Lochner (“Paul”) seeking an order (a) removing the Public Guardian and Trustee (“PGT”) as the litigation guardian of the co-plaintiff George Lochner, and (b) appointing Lina or Paul as George’s litigation guardian.
[2] I invited costs submissions from both parties and have now received and reviewed those submissions. The PGT seeks costs of the motion on a partial indemnity basis fixed in the all-inclusive amount of $3,142.60.
[3] In their responding costs submissions, Lina and Paul oppose any costs being awarded to the PGT. Unfortunately, rather than focus those responding submissions upon specific reasons in support of their request, Lina and Paul spent most, if not all, of their submissions re-arguing the positions they advanced before me at the return of their motion, characterizing my June 5, 2015 decision as “without merit and contrary to existing jurisprudence”.
[4] Lina and Paul described their motion as being brought on behalf of themselves and Silvano Lochner (“Silvano”). While Silvano was George’s original litigation guardian, he subsequently consented to his removal from that position. He therefore had no standing to make submissions and I advised him as such at the return of the motion.
[5] There is no reason to depart from the standard rule that costs ought to follow the event, and as such the PGT should be awarded its costs of this motion on a partial indemnity basis. 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 factors include the principal of indemnity for the successful party, the expectations of the unsuccessful party and the complexity of the issues. Overall, this Court is required to consider what is “fair and reasonable” in fixing costs, and it is to do so with a view to balance and compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[6] I have reviewed the PGT’s Bill of Costs. Lina and Paul served their motion record in close proximity to the return date, forcing the PGT to prepare responding materials and a factum on a somewhat rushed basis.
[7] In the circumstances of this case, I fix the costs of this motion on a partial indemnity basis in the all-inclusive sum of $2,500.00 payable by Lina and Paul to the PGT within 30 days.
[8] I understand from Lina and Paul’s submissions that an appeal of my decision is being pursued, and assuming this to be the case, enforcement of this costs order would be stayed until the disposition of that appeal.
Diamond J.
Released: July 7, 2015
COURT FILE NO.: 07-CV-331980PD1
DATE: 20150707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LINA LOCHNER, PAUL LOCHNER and
GEORGE LOCHNER by his Guardian –
PUBLIC GUARDIAN and TRUSTEE
Plaintiffs
– and –
PC GORDON CALLANAN,
SGT MARK ARMSTRONG,
PC DOMENICO BRUZZESE,
PC DAVID BRAGG,
PC WILLIAM SHIKATANI,
PC GISSA WATERS,
PC STEPHEN CARMICHAEL and
TORONTO POLICE SERVICES BOARD
Defendants
COSTS ENDORSEMENT
Diamond J.
Released: July 7, 2015