Court File and Parties

COURT FILE NO.: 11-31191 DATE: 2016-06-08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LANDON CURLEY and ERIN PORTER Plaintiffs Sabrina Seibel, for the Plaintiffs

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SIX NATIONS POLICE COMMISSION, MARWOOD WHITE and TIMOTHY BOMBERRY Defendants Lorne Honickman, for the Defendants

JUDGMENT AS TO COSTS THROWN AWAY

The Honourable Mr. Justice A.C.R. Whitten

[1] On April 28, 2016 this court granted the plantiffs’ request for an adjournment of the trial scheduled for May 9, 2016. Counsel for the defendants were invited to submit written submissions as to “costs thrown away”. Those submissions have now been received along with a request for costs of the adjournment motion. Counsel for the plaintiff has filed a reply to those submissions.

Costs Thrown Away

[2] These are costs for preparation for trial, costs which have to be repeated on the eve of the next trial. They are wasted costs. That being said, not all preparation is wasted or “thrown away”. Counsel because of preparation at a point may have a trial brief organized which would still be the organization of the evidence whenever the trial is held. Photocopies of exhibits will still be available. Some preparation does not pass completely from the memory of counsel or at the least when counsel returns to the brief, the memory is more quickly refreshed than it would be with the first go around. The themes, the objectives to be achieved with a particular witness or a piece of evidence (i.e. exhibits) are quickly realized anew.

[3] That core of preparation for trial, which is still the basic platform for conducting a trial will be addressed at the end of the trial along with the preparation that the specific trial requires above and beyond this base.

[4] This process of determining what is lost and truly thrown away has been described as “intuitive”, no doubt an intuition founded on the jurist’s experience as counsel and observations of counsel over the years.

The Costs Outline Provided by Counsel for the Defendants

[5] Lead counsel has indicated that he spent 2.4 hours reviewing the transcript of the criminal trial. No doubt, counsel would have made notes or highlighted what he considered significant. Those notes would alert the memory, the next go around.

[6] The same counsel spent 33.5 hours preparing for trial.

[7] Those two items at $450 per hour total $16,155.00 plus HST.

[8] Counsel for the plaintiff has analyzed the dockets provided and has backed out of the total for preparation; that time devoted to undertakings and conversations about disclosure which would have to be incurred whenever the trial took place (in fact counsel for the plaintiff asserts that if anything there should be some monetary credit to the plaintiff that there was a delay in the fulfillment of this obligation), and that time for the pretrial. The latter is not a costs thrown away, it was preparation for an event which if successful would have done away with the necessity for a trial. In other words, it was preparation with the objective of saving preparation for trial. It was preparation with an aim to economize the process.

[9] Counsel for the defence has also included costs for the motion to adjourn. Counsel for the plaintiff appropriately argues that it would be more appropriate that the assessment of those costs take place after the trial, as the parties would be in a better position to assess the validity of the individual requests. In other words, was the additional disclosure contemplated by the ongoing WAGG motion of sufficient weight to merit the adjournment request as made. At this point nobody knows as the disclosure is yet to be received. I agree that given this perspective it would be unwise to make an order for costs at this juncture, it would be better to be made after the big picture that flows from a trial. That logic would also apply to any disbursements associated with the motion.

[10] Agreeing with counsel for the plaintiff’s analysis of what should be the starting point for the discussion of what is “actually thrown away”, we arrive at the sum of $12,240.00 plus HST.

[11] Counsel for the plaintiff harkens to the remarks of Justice Malloy in Strome v. Battarbee Estate [2001] O.J. No. 6233 in which Her Honour applied a discount (“a rule of thumb”) to the sums asserted, no doubt to reflect what this jurist observed under the heading “costs throw away”. The Malloy rule of thumb was close to fifty percent. Counsel for the plaintiff embraces that discount and also argues that none of the disbursements advanced are truly thrown away.

[12] With respect to the latter, process server’s fees and couriers could be “thrown away”. Therefore $225.33 are found to be thrown away disbursements.

[13] Applying my intuition, I am prepared to discount that which is sought to the sum of $6,000.00, which includes any credit to the plaintiff for the delay in the satisfaction of undertakings.

[14] Therefore the total costs thrown away are $6,225.33.

Whitten J. Released: June 8, 2016