Court File and Parties
COURT FILE NO.: CV-10-416204 DATE: 20170303 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
FARIHA RIDWAN Plaintiff – and – JAMES EICHENBERG, WILLIAM ANDREW, JOHN APOSTOLIDIS, ANDREW RICHARDSON, ANTHONY COOK, CONSTABLE GILL, CONSTABLE N. DUNKER, RICHARD POOLE, ROBERT MONTEIRO, DARYLE GERRY, CONSTABLE ROSE, SERGEANT PAYNE, and THE TORONTO POLICE SERVICES BOARD Defendants
COUNSEL: H. Epstein, for the Plaintiff D. Smith and N Salafia, for the Defendants
BEFORE: S.A.Q. Akhtar J.
COSTS judgment
Introduction
[1] On 21 October 2009, police executed a search warrant at the address of 35 Pelham Park Gardens in Toronto. The purpose of the search was to locate drugs and handguns that were believed to be at the address.
[2] The plaintiff, Fariha Ridwan, was present at the time that the ETF entered the residence and found in one of the rooms. She was detained but never charged.
[3] Following these events, the plaintiff brought an action against the police alleging that she had been severely and gratuitously assaulted by Officer James Eichenberg during the incident. In her Statement of Claim, the plaintiff claimed that the officer acted with racist motivation and had a propensity for violence. She claimed a substantial award for general damages, aggravated damages and punitive damages.
[4] An eight day jury trial was held and the plaintiff was successful. However, the jury verdict resulted in an award of only $10,000 in general damages.
[5] The plaintiff seeks costs of the action as the successful party and claims a partial indemnity amount of $86,655.32. The defendants, on the other hand submit that no costs of the action should be ordered based on the premise that the amount awarded by the jury fell within the mandate of the Small Claims Court (which can award damages up to $25,000).
Was the Plaintiff’s Action Brought in the Wrong Court?
[6] Rule 57.05(1) of the Rules of the Civil Procedure, R.R.O. 1990, Reg. 194, provides as follows:
57.05 (1) If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.
[7] The denial of costs to a successful plaintiff under this rule is not mandatory and the court retains discretion to make an award of costs: Hunt v. TD Securities [2003] O.J. No. 4648 (C.A.); Burton Meats Retail Inc. v. Igloo Refrigeration Ltd., 2014 ONSC 3453.
[8] The policy rationale for the existence of the rule can be found in the words of Nolan J., at para. 17, in Lore v. Tortola, [2008] O.J. No. 769 (S.C.J.):
The Superior Court of Justice is currently overburdened with cases. Parties should not be rewarded with costs in matters that should have been properly brought in another forum designed to handle claims of a specific magnitude or monetary value, such as the Ontario Small Claims Court.
[9] In Toronto Dominion Bank v. Thind, 2010 ONSC 6974, Gray J. remarked that “[I]f the plaintiff, as here, has made a deliberate decision to bring the proceedings in the Superior Court when it is clear that the Small Claims Court has jurisdiction, then, save in exceptional circumstances, the plaintiff should recover no costs.”
[10] There is no doubt that in cases where the issues are complex, an award of costs may be made despite the award of damages falling within the jurisdiction of the Small Claims Court: Burton Meats Retail, at para. 3.
[11] This, however, was not a complex case. Essentially, as the plaintiff concedes in her submissions, it was a question of whether a trier of fact believed either the plaintiff or Officer Eichenberg. Nor was the award close to the maximum award available in the Small Claims Court.
[12] Moreover, it is clear from the award of costs that even though the jury believed the plaintiff that Officer Eichenberg had assaulted her in some way, the amount of the award suggests that the jury did not accept her allegations of the brutal beating that she claimed had occurred.
[13] The medical evidence in this case demonstrated that the plaintiff’s injuries were minimal and did not accord with the multiple beating that the plaintiff insisted she received at the hands of Eichenberg.
[14] It is also beyond dispute that the jury rejected any claim for aggravated damages and punitive damages claimed by the plaintiff due to her allegations of nefarious conduct by the police. I also note that despite the plaintiff’s pleadings that Eichenberg’s acts were racially motivated and that he had a propensity for violence, no evidence was adduced – or even sought to be adduced – by the plaintiff to substantiate this very serious allegation.
[15] In my view, the plaintiff failed to adequately assess the quantum of damages that would be obtained. I agree with the defendants that this was a trial that should have taken place in the Small Claims Court over the span of one or two days rather than an eight day jury trial in the Superior Court of Justice. Accordingly, the plaintiff should not reap the rewards of costs in a matter where the appropriate venue that occurred.
[16] For the above reasons, there will be no order to costs in this matter.