Court File and Parties

COURT FILE NO.: CV-11-422325 DATE: 20160420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frank Roda, Plaintiff AND: Toronto Police Services Board, Detective Timothy Kavanagh and P.C. Bronagh Fynes, Defendants

BEFORE: S. F. Dunphy, J.

COUNSEL: Frank Roda, unrepresented M. Brady, for the defendants

HEARD: In Writing

Costs Endorsement

[1] On January 29, 2016 I dismissed the plaintiff’s claim against the remaining defendants in this action following a motion for judgment brought by the defendants. I reserved the matter of costs to be decided following receipt of written submissions of the parties.

[2] I received the costs submissions of the successful moving parties Toronto Police Services Board and Constable Fynes on February 12, 2016. My endorsement gave the plaintiff Mr. Roda 45 days from the date of receipt of the defendants’ submissions to respond with his own submissions on costs. It has been more than 60 days since the defendants’ submissions were received and no responding submissions have been received. Mr. Roda has not asked for an extension of time or provided reasons for requiring one. I am accordingly delivering my endorsement on the matter of costs at this time in default of timely submissions from Mr. Roda.

[3] The defendant moving parties have filed a Bill of Costs particularizing claims of $61,427 including fees, HST and disbursements calculated on a partial indemnity basis. Their Bill of Costs for both the two-day summary judgment motion and the action that has now been dismissed reflects hours and rates that are at the lower end of those contemplated by the Rules Committee guidelines. Despite this, the defendants seek only an “all in” award of $50,000 for costs plus post-judgment interest. This claim represents a significant discount from what the defendants have submitted would be claimable partial indemnity costs.

[4] The moving party defendants have been entirely successful on their motion for summary judgment and in defending the action. I can see no reason to depart from the ordinary practice and deprive them of their costs. The defence of this action over a number of years with a sophisticated but nevertheless self-represented plaintiff has required a number of additional delays, unnecessary motions and the like that could well have provided grounds for the defendants to seek costs on a more generous scale. They have not done so. The hours they have itemized in their outline and the rates claimed are both reasonable and modest. Given the challenges present in this case, I should have been inclined towards leniency had the hours charged by the defendants appeared otherwise excessive. They did not appear so to me.

[5] Considering: a. the success of the defendants; b. the seriousness of the allegations made against them; c. the complexity of the proceeding that was aggravated by a large number of distinct causes of action advanced by the plaintiff; d. the additional costs attributable to the plaintiff’s actions in the litigation; e. the principle of indemnity and the actual time charged by the defendants’ counsel; and f. the reasonable expectations of the losing party.

I find that the defendant’s request for $50,000 in costs on a partial indemnity basis to be eminently reasonable and fair. I would underline that the reasonable expectations of the losing party refers to the objective reasonable expectations that the losing party ought to have in the circumstances.

[6] I therefore order the plaintiff Mr. Roda to pay the costs of the moving party defendants Toronto Police Services Board and Bronagh Fynes for both the motion for summary judgment and the action that has been dismissed on a partial indemnity basis which costs I fix at $50,000. This order will bear post-judgment interest at the current post-judgment interest rate of 2% per year.

[7] The defendants sought an order that these costs be payable forthwith. As the action has been fully dismissed, the costs are immediately due and payable in any event subject to any stay pending appeal. There is no need for further order on my part in that regard.

S. F. Dunphy, J. Date: April 20, 2016