Court File and Parties
COURT FILE NO.: 07-CV-331980 DATE: 2016-05-24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lina Lochner, Paul Lochner and George Lochner by his Litigation 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
BEFORE: S. F. Dunphy, J.
COUNSEL: Lina and Paul Lochner, unrepresented Robert L. Love, for the defendants
READ: May 20, 2016
COSTS ENDORSEMENT
Introduction
1This case came on for trial on April 18, 2016. I was the trial judge. It was scheduled for trial on that date but the plaintiffs Lina Lochner and Paul Lochner did not appear. George Lochner’s case had previously settled. The defendant appeared and made a motion for judgment in accordance with Rule 52.01(2)(c) of the Rules of Civil Procedure. I granted the motion and dismissed the plaintiffs’ action with costs. I provided a schedule to receive written submissions.
2The successful defendants, following directions given in my judgment, have filed an Outline of Costs and submissions. They seek costs on a substantial indemnity basis. Their Outline claims $44,941.14 including HST and $912.38 in disbursements.
3The plaintiffs were invited to make reply submissions on the matter of costs. I received a lengthy submission dated May 18, 2016 that contained extensive argument (and evidence) about the merits of the case dismissed and about their efforts to have the trial adjourned. The submissions included no response directed at the matter of costs.
Background
4The background to this case is lengthy. It arises from the execution by members of the Toronto Police Services Board of a warrant for the arrest of Mr. Silvano Lochner the son of the plaintiffs Lina and Paul. Silvano was not at home when the warrant was executed. During the course of the execution of that warrant, it is alleged that Silvano’s brother George was assaulted. George sued as did his parents. A variety of damages claims were advanced.
5The trial date in this matter was set by order of McEwan J. on February 18, 2016. The trial date was set over the objections of the plaintiffs but was without prejudice to them applying to the trial judge for an adjournment. This was the fourth trial date set. The history of the case reveals a number of changes of counsel and adjourned trial dates. The plaintiffs are now acting in person.
6George is a person under disability and was required to be represented by a litigation guardian. The Public Guardian and Trustee assumed that role. A settlement was reached with the litigation guardian that was approved by an order of D. Wilson J dated March 9, 2016, resulting in the dismissal of the claim of George. As a result, the only remaining plaintiffs at the time of trial were Mrs. Lina Lochner and Mr. Paul Lochner.
7The plaintiffs were not the litigation guardians of their son George, but have strenuously objected to the settlement reached. They attempted unsuccessfully to oppose the approval of the settlement and have sought since to have the approval of the settlement set aside. They sought to do so in a motion heard by McEwan J. on March 23, 2016. At that time they again sought to adjourn the trial and were not successful. The trial date was re-confirmed.
8The plaintiffs made the deliberate choice not to appear at their trial. They advised McEwan J. of their intention not to appear when he refused their request for an adjournment on March 23, 2016. The plaintiffs made no attempt to seek an adjournment before me at the opening of the trial as they were entitled to do.
9The plaintiffs chose to ignore orders of the court instead of complying with them. They had avenues of redress open to them, including making a renewed request for an adjournment at the opening of the trial. They chose to act unilaterally instead.
10They were entitled not to appear at their trial; they are not entitled to evade the consequences of their actions. Orders were made and the mere fact that they were unhappy with those orders or are seeking to appeal them or have them set aside is not license to ignore them.
Analysis
11The defendants are entitled to their costs of the action. The plaintiffs have declined to make any submissions as to the scale or amount of such costs. I shall thus proceed to assess costs based on the materials before me.
12The defendants suggest that costs on a substantial indemnity scale are warranted because of the history of last-minute adjournments of this case that has resulted in considerable additional expense. I cannot concur in that submission as a general proposition. If any particular adjournments requests have been abusive, it was open to the defendants to have sought costs thrown away at the time before a judge or master better able to assess the situation. Asking me to assign responsibility for past adjournments on a general basis in a case as old as this one would not be fair or reasonable.
13I do, however, concur that costs of trial preparation thrown away ought to be assessed at the higher substantial indemnity scale. While the plaintiffs suggest that defendants’ counsel knew very well that the plaintiffs would not appear, the case was properly scheduled and the defendants could not take the chance that the plaintiffs would not appear. The defendants were justified in expending time and effort preparing for trial. Had they not done so, they might have been ambushed. The conduct of the plaintiffs caused costs to be wasted needlessly when they knew they would not be appearing and also knew that the defendants could not count on that assumption being true.
14I have reviewed the defendants’ Outline of Costs carefully and I am satisfied that they have scrubbed out of it all costs relating to the claim of George that has now been settled. The partial indemnity Outline of Costs for the whole action, reduced as indicated for what I view as a very reasonable allowance for time attributable to the claim of George, was $29,456.46. I would add to that sum $12,886.56 being the difference between substantial indemnity costs and partial indemnity costs for the claimed trial preparation time plus HST. In my view, this is a reasonable outcome that fairly balances the principle of indemnity and the reasonable expectations of the unsuccessful party.
Disposition
15I have therefore fixed the costs payable to the defendants by the plaintiffs Mr. Paul Lochner and Mrs. Lina Lochner at $42,342.98 plus post-judgment interest.
S. F. Dunphy, J.
Date: May 24, 2016
