Housser v. Niagara Regional Police, CITATION: 2016 ONSC 996

COURT FILE NO.: CV-3446-11

DATE: 2016-02-09

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dale Housser, plaintiff

AND: Niagara Regional Police Services Board and Scott Kraushar, defendants

BEFORE: Mr Justice Ramsay

COUNSEL: M. Hoy for plaintiff; M. Cruickshank for defendants

HEARD: January 17 – 21, 2016 at Welland

ENDORSEMENT

[1] The plaintiff sued the Niagara Regional Police Services Board and Sgt Scott Kraushar unsuccessfully for assault and negligence [2016 ONSC 589]. The police board undertook the defence and now seeks costs fixed at about $65,000. The plaintiff says that $15,000 would be appropriate.

[2] After five days of trial I fixed damages at $5,000 but found no liability in tort on the part of either defendant.

[3] Originally the plaintiff got default judgment against the defendants in Small Claims Court in the amount of $1,300. The defendants moved successfully to set aside the default judgment. The plaintiff then amended his claim and had it transferred to the Superior Court. The plaintiff eventually offered to settle for $150,000 plus interest, costs and disbursements. This cannot be taken as a serious attempt to settle the litigation because at trial the plaintiff ended up submitting that $100,000 was justified. The latter figure was about as much as the plaintiff could have hoped for if I had believed him. The defendants on the other hand offered to settle for $25,000. The offer did not meet the requirements of Rule 49, but it reflects, in my opinion, a sincere attempt to settle the action. In hindsight, they should have paid the default judgment. That would have saved them a lot of money.

[4] For a trial of this length with associated procedures, including costs of the motion to set aside default judgment, which were reserved to me, but not including the motion before Nightingale J., on which costs were awarded by him, I think an amount that might reasonably have been contemplated as partial indemnity would be $35,000. I order the plaintiff to pay that amount to the defendant police board.

J.A. Ramsay J.

Date: 2016-02-09