CITATION: S.F. v. Greater Sudbury (Police Service), 2016 ONSC 228
COURT FILE NO.: C-2835-13
DATE: 2016/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.F.
Plaintiff
– and –
THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD and SUDBURY POLICE ASSOCIATION, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCLOSKY, T. MARASSATO, P. SMYTH, ELAINA GROVES, SANDRA DICAIRE, PAUL MCGEE, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, GREG BERGERON, FRANK ELSNER, CONST. ELDEAMA, THE ATTORNEY GENERAL FOR ONTARIO, JOHN LUCZAK, KENDRICK ABBOTT, MERIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, DIANNE LAFLUER, ANDREA BEAL, RIA BIGNOCOLLO, HELENE BRYDGES, PIERRE BRADLEY LAW OFFICE, CHILDREN’S AID’S SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN, JEAN JACQUES PAQUETTE, REJEAN PARISE, COLLETTE PREVOST, NORA DOUGAN, LINDA CULLAIN, JEAN O’CONNER, DARLENE WILSON, MICHELLE GLOVER, DONALD KINGSLEY, CANDICE POULIN, KAREN FAGEN, CHRISTY CROTEAU, DEBBIE LACELLE, LAURA FOX, JODY MARCOTTE, MS. BISAILLON, LOUISE BRENDA BEAUVAIS, JOSH NEGUSANTI, PATRICIA L. MEEHAN, MINISTRY OF THE ATTORNEY GENERAL OFFICE OF THE CHILDREN’S LAWYER, SHEILA MILNE M.D., BRENDA PETRYNA, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT and MR. OLIVER, OFFICE OF THE INDEPENDENT REVIEW DIRECTOR GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA MINISTRY OF CHILD & YOUTH SERVICES, DEB MATHEWS MINISTRY OF HEALTH, RICK BARTOLUCCI MPP FOR SUDBURY ONTARIO, VICE CHAIR STANDING COMMITTEE ON GOVERNMENT AGENCIES
Defendants
S.F., Unrepresented
Meagan Williams and Baaba Forson, for the Defendants, THE ATTORNEY GENERAL OF ONTARIO, JOHN LUCZAK, KENRICK ABBOTT, MURIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, DIANE LAFLEUR, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, ANGELLA BEAL, RIA BIGNUCOLO, HELEN BRYDGES, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT, OLIVER URCUYO, OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA, DEB MATTHEWS, RICK BARTOLUCCI, MINISTRY OF CHILDREN AND YOUTH SERVICES, MINISTRY OF HEALTH, MINISTRY OF THE ATTORNEY GENERAL – OFFICE OF THE CHILDREN’S LAWYER, and
Carole G. Jenkins, for the Defendants, Children’s Aid Society of the Districts of Sudbury and Manitoulin, Collette Prevost, Nora Dougan, Linda Cullain, Jean O’Connor, Darlene Wilson, Michelle Glover, Donald Kingsley, Candice Poulin, Karen Fagen, Christy Croteau, Debbie Lacelle, Laura Fox, Jody Marcotte, Louise Beauvais, Brenda Beauvais and Josh Negusanti, and
C. Kirk Boggs, for the defendants, THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCCLOSKY, T. MARASSATO, P. SMYTH, SANDRA DICAIRE, PAUL MCGHEE, ELAINA GROVES, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, FRANK ELSNER, CONST. ELDEAMA, and
G.E. McAndrew, for the defendants, PIERRE BRADLEY LAW OFFICE, JEAN JACQUES PAQUETTE, and PATRICIA L. MEEHAN, REJEAN PARISE, and
Michael C. Birnie, for the defendant, SUDBURY POLICE ASSOCIATION, and
Phuong T.V. Ngo and Madeline Hall, for the defendant, Sheila Milne M.D., and
David P. Jacobs and Steven G. Bosnick, for the defendants, Brenda Petryna, and Health Professions Appeal and Review Board, and
ms. Bisaillon and GREG BERGERON, unrepresented defendants
HEARD: By Written Submissions
COSTS DECISION
KANE J.
BACKGROUND
[1] The plaintiff was self-represented. He sued 78 defendants in his 213 page statement of claim.
[2] The defendants, consisting of 8 groups or persons, were represented by counsel. Those defendants were each successful on their motion for summary judgment in one case or having the proceeding struck under Rules 21 and 25.
[3] This decision decides cost claims by some 75 of the defendants who were successful in obtaining orders dismissing this proceeding against them.
[4] The defendant, Dr. Milne, successfully obtained an order striking the claim against herself. Notwithstanding that success, Dr. Milne has chosen to waive any claim for costs against Mr. S.F..
[5] The court has concerns as to Mr. S.F.’s state of mental health. I have no direct evidence however as to his health beyond noting that other judges in decisions submitted during argument in other proceedings expressed the same concern. It is also rare for one individual to sue 78 parties regarding prior events involving police actions, criminal prosecutions, family court and child protection proceedings which all resulted in outcomes adverse to the plaintiff and now form the foundation pillars of the claims in this proceeding.
[6] The counterbalance however is that no one can sue civilly with immunity. To dismiss cost claims of successful parties because the losing party may or has some mental health issue would be unfair to successful parties. That would encourage legal actions being brought with immunity as to costs.
[7] Mr. S.F. filed written reply submissions to the claims for costs herein. His lengthy reply submissions repeat his allegations in the Statement of Claim but do not reply to the costs claimed.
[8] Reference herein to “defendants” refers to the six defendants or groups claiming costs.
[9] Mr. S.F. is not claiming costs against any of the defendants.
GENERAL PRINCIPLES
[10] The following principles apply to each of the six cost claims herein decided.
NATURE OF CLAIMS
[11] The plaintiff pled multiple causes of action and sought millions of dollars of damages against the defendants.
SUCCESS
[12] The defendants were each successful in obtaining an order dismissing the claims against them.
[13] The plaintiff was unsuccessful in opposing each motion.
[14] Costs therefore should follow those results.
COMPLEXITY
[15] The individual claims against particular defendants were not complex.
[16] The numerous causes of action, the organization format and repetition in the Statement of Claim, combined with the number of defendants created complexity.
IMPORTANCE
[17] The claims alleged and the costs claimed were substantial.
[18] The issues and potential liability were important to all parties.
SETTLEMENT OFFER
[19] The parties presented no written offers of settlement.
LENGTHENING OR SHORTENING CONDUCT
[20] Mr. S.F. as to some defendants insisted upon conducting examinations for discovery before argument of the motions to dismiss. That increased costs.
[21] Civil litigation however is complex for self-represented parties. The absence of legal counsel often makes it difficult to draw negative inferences in such cases as to costs being increased due to conduct.
IMPROPER, VEXATIOUS MISTAKEN CONDUCT
[22] These claims for the reasons stated in the decisions should not have been brought. To that extent, these claims were mistakenly brought.
[23] The number and nature of many of the alternative causes of action pled against each of the defendants were legally complex for a self-represented claimant.
[24] My continuing concern as to the plaintiff’s state of mental health leads me to conclude that no other negative conclusion should be made as to this element.
PARTICULARS OF COSTS CLAIMED
[25] The following summarizes the costs claimed the eight defendants.
Costs Requested
(1) Dr. Milne – Costs waived
(2) Ontario Defendants
Number of Defendants – 32
Lawyers involved – 2
Partial indemnity hourly rates $150 and $100 for counsel called in 2008 and 2013 respectively
Hours claimed – 96
Scale requested – Partial indemnity
Fees – $12,475
Disbursements – zero
Total – $12,475
(3) Health Professions Appeal and Review Board and B. Petryna
Number of Defendants – 2
Lawyers involved – 1 called in 1983
Full hourly rate - $192
Hours claimed – 58
Scale requested – partial indemnity at 66%, being $128 per hour
Fees – $7,436
Disbursements – zero
Total - $7,436
(4) Children’s Aid Society
Number of Defendants – 17
Lawyers involved – 1 lawyer, year of call not disclosed, plus a student at law
Full hourly rate - $280 for lawyer and $130 for student
Hours claimed – 113 (82 for lawyer and 31 for student)
Scale requested – partial indemnity at 66%, being $185 for the lawyer and $85 for the student per hour
Fees – $17,860
Disbursements and tax – $2,507
Total – $20,367
(5) Sudbury Police
Number of Defendants – 25
Lawyers involved – 2 lawyers and a law clerk
Full hourly rates - $480 and $205 for the lawyers called in 1984 and 2013 respectively and $190 for the clerk
Hours claimed – 109 combined
Scale requested – partial indemnity (73% and 60% for the lawyers and 42% for the clerk)
Fees – $23,860
Disbursements – $584
Total – $24,444
(6) Police Association
Number of Defendants – 1
Lawyers involved – 1 plus one other person whose position is unidentified
Full hourly rate - $350 (60% claimed)
Hours claimed – 65
Scale requested – partial indemnity at 60%
Fees – $15,336
Disbursements and tax – $4,566
Total – $19,902
(7) Four Lawyers
Number of Defendants – 4
Lawyers involved – 4
Full hourly rates $350, $285, $225 and $180
Hours claimed – 151
Scale requested – partial indemnity at 66%
Fees – $27,238
Disbursements and tax – $4,890
Total - $32,129
PROPORTIONALITY AND FAIRNESS
[26] Relatively, this proceeding ended at an early stage. It did not end for example after multiple interlocutory motions or following most or all of what would have been tremendously long and costly examinations for discovery of the parties.
[27] My understanding is that Mr. S.F. is employed but earns a limited salary.
[28] The combined costs claimed on a partial indemnity scale total almost $117,000. If awarded, that liability for most individuals of limited financial means could be financially devastating.
[29] The plaintiff however should have known from past costs awards against him in Family Court that unsuccessful civil litigation against 78 defendants may well result in substantial costs awarded against him.
[30] The total hours docketed by the six defendants claiming costs vary dramatically, from a low of 58 hours for counsel representing two defendants, 96 hours by counsel representing 32 defendants and 151 hours for counsel representing four defendants.
[31] I recognize that the number of defendants represented is only one factor to consider.
[32] More hours by one law firm may be offset by the use of more junior lawyers at a lower hourly rate.
[33] In the case of the Police defendants, Mr. S.F. noted them in default resulting in a motion to set that aside which increased the costs of those defendants.
[34] Notwithstanding the individual circumstances of each defendant or group of defendants, proportionality and fairness dictates that the range of reasonable time should be narrower in the same proceeding.
[35] In the motion decisions, the court requested that costs submissions for counsel located outside of Sudbury address:
(a) Hourly rates of senior Sudbury counsel and whether higher out of town rates should be claimed;
(b) Whether it was appropriate for out of Sudbury counsel to claim for airfare and accommodation; and
(c) Whether attendance fees to argue a defendant’s motion should include attendance fees for other dates when other motions were being argued.
[36] The Police Defendants in their cost submissions did not address questions (a) and (c) above.
[37] The defendants, other than the Police Defendants, are not claiming hourly rates exceeding those of senior Sudbury counsel in this proceeding.
[38] I fully recognize a party’s right to select counsel of choice. That right however should not create materially increased cost liability for a losing party residing in the location where the proceeding is brought, proceeds and where the subject matter giving rise to the claims originated.
[39] Based on the above principles, actual or full hourly rates in this decision are limited to the higher hourly rate of Sudbury senior counsel, namely $350/hour.
[40] None of the defendants is claiming travel expenses to or accommodation expenses in Sudbury.
SCALE OF COSTS
[41] All defendants claiming costs appropriately request those on a partial indemnity scale.
ONTARIO DEFENDANTS
[42] Counsel for these 32 defendants are employed by the Ministry for the Attorney General thus explaining their comparatively lower hourly rates.
[43] Involvement of one senior and a second more junior counsel is appropriate.
[44] The time docketed is appropriate.
[45] No disbursements are claimed although counsel work in and travelled from Toronto.
[46] These defendants are awarded total costs in the amount of $11,000, inclusive of disbursements and tax.
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD AND B. PETRYNA
[47] Counsel is senior legal counsel working with the Board. The partial indemnity hourly rate is reasonable.
[48] This claim involves two related defendants. The hours docketed are the lowest amongst the defendants. That likely reflects the narrower and subsequent in time involvement by these two defendants.
[49] These defendants are awarded total costs of $7,000, inclusive of disbursements and tax.
CHILDREN’S AID SOCIETY AND MULTIPLE EMPLOYEES
[50] The use of one lawyer and one student, the full and partial indemnity hourly rates, the absence of a travel costs and the level of disbursements are appropriate.
[51] Although related through CAS, this claim against 17 defendants involved conduct in several matters spread over a longer period of time which would increase the length of review for counsel.
[52] My difficulty is counsel’s attendance in court for three days, namely August 15, 2014, as well as January 6 and 7, 2015. I am deducting one-third of that time claimed, namely for August 15, 2014, in expectation that counsel for seven moving parties would discuss and settle the sequence of argument and would have known that all seven motions could not be argued during the one original day scheduled.
[53] These defendants are awarded total costs of $14,000, inclusive of disbursements and tax.
SUDBURY POLICE AND EMPLOYEES
[54] This cost claim is on behalf of 25 Sudbury defendants who were represented by Toronto counsel.
[55] Counsel attended one day on this summary judgment motion. It is unclear whether time for travel to and from Sudbury is claimed as no date information is included in the three Costs Outlines.
[56] That Cost Outlines submitted lack information as to what was done, when, and for how long. The summary judgment dismissing the action is final, just like a trial and the information required in Form 57A, namely docket information and evidence is relevant.
[57] The summary judgment outline combined claims of some 40 hours for work in relation to the summary judgment motion, including “preparing oral submissions”. That outline in addition claims two 8 hour blocks for senior counsel to “prepare for” and “argue the motion”. Some duplication is suggested in this wording.
[58] Docketing exact hours, such as 8 hours, suggests an estimate rather than actual time.
[59] Argument of this motion did not consume 8 hours. It appears counsel is charging for travel time to and from Sudbury which is not appropriate for the above reasons.
[60] My difficulties as to this claim include:
(a) Senior counsel’s full hourly rate of $480 exceeds Sudbury senior counsel rate by $130/hour.
(b) The partial indemnity hourly rate claimed for senior counsel is 75% of his actual hourly rate. That exceeds the normal 60% to 66% partial indemnity rate.
(c) There is no reason why the same firm as to two lawyers and one law clerk is claiming 75%, 60% and 50% for such three service providers to calculate partial indemnity costs.
[61] For the above reasons, these defendants are awarded total costs of $15,000, inclusive of disbursements and tax. That is comparable to the number of defendants and hours docketed in the case of the Children’s Aid Society.
POLICE ASSOCIATION
[62] This was a claim against one defendant which is represented by a senior counsel in Sudbury.
[63] The 65 hours claimed includes time to conduct preliminary and then subsequent detailed reviews of the motion materials, factums and authorities of other moving parties. That can possibly increase or reduce the time claimed.
[64] The time claimed however also includes:
(a) Detailed review of provisions of the Criminal Code; the necessity of which is unclear;
(b) Eight hours court attendance on August 15, 2014, whereas this motion was argued on January 6, 2015 which included Mr. S.F.’s responding argument, for which 9.3 hours are docketed. That left counsel’s reply thereto on January 7, 2015, for which another 8.3 hours are docketed; and
(c) Quite a bit of time is docketed for communicating with other defence counsel.
[65] I am not critical of counsel`s interest in the case and observing arguments presented by other moving parties. The issue however is what are the appropriate costs regarding the proceeding against and the motion of this defendant.
[66] Costs to attend court on August 15, 2014 are deducted. Costs to attend court on January 7, 2015 are reduced to 3 hours.
[67] Time to represent one defendant should be considerably less than representing 25 to 30 defendants.
[68] There is no cost savings involving the use of junior counsel, within or outside of the law firm. One senior counsel did all of the work.
[69] Time for communication with other defence counsel requires some reduction.
[70] Disbursements include $1,011 for a third party to conduct legal research which is billed and included as a disbursement, at the rate therefore of 100%.
[71] $2,175 is claimed as photocopying costs. The number of copies and the charge rate are not indicated.
[72] This defendant is awarded total costs of $9,000, inclusive of disbursements and tax, which the court considers reasonable considering the cost awards for other multiple defendants represented by one law firm.
FOUR LAWYERS
[73] Hourly rates given year of call, the percentage applied to calculate partial indemnity fees and disbursements are appropriate.
[74] The use of four lawyers, two of whom were billing at $350 hourly, a combined 151 hours to represent four defendants and the resulting cost claim of $32,129 on a partial indemnity scale, exceeds the costs claimed of each of the five other defendant groups, including one whose claim is based on an actual hourly rate of $480.
[75] The 151 hours docketed is 38 hours above the next highest firm’s 113 hours. The 151 hours claimed is 53 hours in excess of the 98 hour average of the combined six cost claims. The docketed hours must be reduced.
[76] The time of the first senior lawyer began in 2013 and continued into 2014. It appears that a new senior lawyer took over carriage of the file at that point. Given the voluminous and complex nature of this Statement of Claim, time duplication occurred as a result of this internal transition decision which is not the responsibility of the plaintiff.
[77] This motion was argued on January 6, 2015. The time claimed includes 6.3 hours of senior counsel on August 15, 2014, which is deducted for the reasons previously stated.
[78] There is a considerable time docketed in communications with counsel of the other defendants. I understand some communication was necessary given the existence of other moving defendants, the case management of these motions and the need to set several court dates. The total time claimed for communication however is too high.
[79] There is too much disparity between this cost claim to represent four defendants and the other cost claims representing many more defendants. There has to be some level of comparability in these costs awards involving similar motions brought in the same period within the same proceeding.
[80] These defendants are awarded total costs of $15,000, inclusive of disbursements and tax.
CONCLUSION
[81] The $71,000 total of these awards against one individual plaintiff in the circumstances is a fair and reasonable outcome balancing the competing interests of all parties.
[82] All cost awards herein are due and payable by the plaintiff within 30 days from today.
Kane J.
Released: January 22, 2016
CITATION: S.F. v. Greater Sudbury (Police Service), 2016 ONSC 228
COURT FILE NO.: C-2835-13
DATE: 2016/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.F.
Plaintiff
THE GREATER SUDBURY POLICE SERVICE et al
Defendants
COSTS DECISION
Kane J.
Released: January 22, 2016