Court File and Parties

Court File No.: CV-10-407731 Date: 2017-01-05 Ontario Superior Court of Justice

Between: CHRISTOPHER DU CARMUR, Plaintiff – and – DETECTIVE CONSTABLE DOUGLAS COLE BADGE NO. 855, THE YORK REGIONAL POLICE CHIEF ARMAND P. LA BARGE, THE YORK REGIONAL POLICE SERVICE BOARD, DETECTIVE CONSTABLE DAVID LITTLE BADGE NO. 469, DETECTIVE ILIADA SPYROPOULOUS BADGE NO. 7918, (ALSO KNOWN AS DETECTIVE ILIADA LEAHY, THE TORONTO POLICE CHIEF WILLIAM BLAIR, THE TORONTO POLICE SERVICE BOARD, POLICE OFFICER JOHN DOE, Defendants

Counsel: Hedy L. Epstein & Jason E. Bogle, for the Plaintiff Kevin McGivney, Rebecca L. Bush, & Charetina Lougheed, for the Defendants

Before: S.A.Q. Akhtar J.

Costs Judgment

[1] The plaintiff, Christopher Du Carmur, brought an action against the defendants which arose out of two lengthy police investigations. The plaintiff claimed that the defendants had committed serious breaches of his rights under the Charter of Rights and Freedoms, conducted a negligent investigation which led to his arrest, falsified evidence, and severely beat him during his arrest. He sought substantial damages totalling over $30 million. He failed to prove any of his allegations and the claim was dismissed. The defendants now seek costs.

[2] Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, guides the courts in determining the amount of costs to be awarded to a successful party. Two of those factors, the importance of the issues and the conduct of the parties, are relied upon by the defendants in its submissions.

[3] There is no doubt that the allegations were serious and, if successful, would have had serious ramifications for many of the officers involved. The plaintiff claimed that he was the target of a malicious investigation undertaken out with a complete disregard for his rights. Upon arrest, he alleged that he was beaten so severely that the injuries subsequently led to a life threatening situation. Finally, he claimed that his personal belongings had disappeared from his apartment because of police’s carelessness following his detention.

[4] These allegations were completely without merit. By contrast, the evidence demonstrated that the police had acted lawfully and that the plaintiff’s injuries had pre-existed his arrest. Most significantly, I found the plaintiff to be a completely incredible witness whose testimony was repeatedly contradicted by the external evidence.

[5] The plaintiff’s conduct in challenging every aspect of the two police investigations forced the defendants into a lengthy trial at great expense.

[6] In many ways, the defendants would not be faulted for seeking substantial indemnity costs to compensate for what might objectively seen as reprehensible conduct on behalf of the plaintiff in making such heinous allegations: Davies v. Clarington (Municipality), 2009 ONCA 722.

[7] However, to their credit, the defendants seek costs only a partial indemnity basis.

[8] Keeping in mind the factors set out in Rule 57.01 of the Rules, I am also mindful of the fact that the calculation of costs is not a mathematical exercise but the use of discretion that results in a fair and reasonable amount to be awarded that not only compensates the successful party but fosters access to the administration of justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[9] In my view, the defendants request for partial indemnity costs in the amount of $367,704.87, all inclusive, is both fair and reasonable bearing in mind the length of the trial and the nature of the witnesses called.

[10] Accordingly, the plaintiff will pay the amount of $367,704.87 to the defendants forthwith.

S.A.Q. Akhtar J. Released: 5 January 2017