Court File and Parties

COURT FILE NO.: 1242/10 (Welland) DATE: 2017-02-27 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GARETT ROLLINS Plaintiff

Margaret A. Hoy, for the Plaintiff

• and -

NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD and MATT POULI Defendants

Stephen Chisholm, for the Defendants

The Honourable Mr. Justice P.R. Sweeny

COSTS ENDORSEMENT

INTRODUCTION

[1] In this case, the plaintiff was awarded damages of $28,503.25 as a result of the conduct of the defendants. The parties were unable to agree on costs. I have received costs submissions from the plaintiff and the defendant. The plaintiff seeks costs of $57,131.45 on a partial indemnity basis. The defendants say that there should be no order as to costs because the plaintiff did not use the simplified procedure as set out in Rule 76 of the Rules of Civil Procedure. That Rule provides that if the plaintiff obtains a monetary judgment of $100,000 or less, then the plaintiff shall not recover any costs unless the action proceeded under Rule 76 at the commencement of the trial or the Court is satisfied that it was reasonable for the plaintiff to have commenced and continued the action under the ordinary procedure.

[2] The plaintiff relies on the case of Elmardy v. Toronto (City) Police Services Board, 2015 ONSC 3009 to support his claim for costs notwithstanding he did not use the simplified procedure. This case differs from the Elmardy case. In this case, the plaintiff had the benefit of the evidence of the defendant’s witnesses in the criminal trial and there was no improper conduct by the defence in the course of the trial or the action. This was not the case even on the cross-examination of the witnesses.

[3] In my view, it was not reasonable for this case to be brought under the ordinary procedure. The plaintiff ought to have commenced the action under the simplified procedure and continued under the simplified procedure. However, I am not prepared to deny the plaintiff any costs with respect to the prosecution of the action. As noted by the Court of Appeal in Tucker v. The Cadillac Fairview Corporation Ltd. (2005), 200 O.A.C. 140 para. 28, the Court may consider that only certain procedures not available under the Simplified Procedures were utilized.

[4] As succinctly stated by Myers J. in Elmardy, at paragraph 20:

The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[5] The trial in this action took four days but could have been done more efficiently. There was significant court time wasted due to the unavailability of witnesses. The hours claimed by plaintiff’s counsel is excessive for this claim. There are no detailed dockets provided to explain the costs associated with various steps. The case was modest from a damages perspective. The amount awarded is only $3,305.25, over the Small Claims Court limit. The amount awarded is a factor to consider in determining the reasonableness of costs. I am also mindful of the principles of proportionality.

[6] In all the circumstances, it is fair and reasonable that the defendants pay to the plaintiff costs on a partial indemnity basis fixed in the amount of $15,000, all inclusive.

Sweeny J.

Released: February 27, 2017