Court File and Parties

Court File No.: 08-CV-42912 Date: 2017/05/05 Ontario Superior Court of Justice

Between:

RICHARD TREMBLAY and JOHANNE MONGRAIN Plaintiffs – and – OTTAWA POLICE SERVICES BOARD, JEFF AYLEN, MELBURN WHITE, SHAWN GRAHAM, CHRISTIAN GARDNER, MARTIN RUKAVINA, DANIEL KUNSKEN, KIRK GIDLEY, JEFF SIMPSON, KELLY RYAN, STEPHAN GILBERT, JEFF KILCOLLINS, GORDON WARD, WOODY ASPILAIRE and NELSON ROWAN Defendants

Counsel: Lawrence Greenspon and Marissa Victor, for the Plaintiffs Jeremy Wright, for the Defendants

Heard: Written Submissions

Reasons for Judgment Re Costs

Aitken J.

Orders Sought

[1] The Plaintiffs, Richard Tremblay and Johanne Mongrain, seek their partial indemnity costs in this action in the total amount of $117,629.60, inclusive of fees, disbursements, and HST. The Defendants take the position that the Plaintiffs are not entitled to any costs because, considering each Plaintiff recovered less than $50,000.00 in damages, their action should have proceeded under the Simplified Procedure Rule, rule 76, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (rule 76.13(3)(a)).

[2] The Defendants seek their partial indemnity costs in the amount of $3,750.00 in regard to the Plaintiffs’ unsuccessful motion to reopen their case.

Background

[3] The background facts in this case are set out in Reasons for Judgment released December 31, 2016 and will not be repeated here.

[4] When the action was commenced, each of the two Plaintiffs sought damages of $500,000 from the Ottawa Police Services Board, Sergeant Jeff Aylen (the lead investigator), and thirteen other named officers based on the following causes of action:

• Negligent investigation,
• False arrest and imprisonment,
• Unreasonable search and seizure,
• Negligence in training and supervision, and
• Breach of the Plaintiffs’ Canadian Charter of Rights and Freedoms rights: (1) to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; (2) to be free from arbitrary detention and imprisonment; and (3) to be free from unreasonable search and seizure.

[5] At trial, the only claims seriously advanced, and the only ones that were successful, were the claims against Sergeant Aylen and the Ottawa Police Services Board.

[6] The trial consisted of two and a half days of evidence on February 8, 9, and 10, 2016; argument of half a day on the Plaintiffs’ unsuccessful motion to reopen their case; and one and a half days of closing submissions on June 22 and 23, 2016. Seven witnesses testified at trial. There was a significant amount of documentary evidence. What added complexity to the trial was the numerous causes of action raised in the pleadings and the numerous heads of damages advanced by the Plaintiffs, including punitive, exemplary, and aggravated damages.

[7] In the end, I found Sergeant Aylen and the Ottawa Police Services Board jointly and severally liable to pay general damages to Mr. Tremblay in the amount of $30,000.00 plus special damages of $10,923.58 for a total recovery of just under $41,000.00. I found the Ottawa Police Services Board liable to pay Ms. Mongrain general damages in the amount of $10,000.00 for a breach of her s. 8 Charter rights.

[8] In short, the Plaintiffs’ recovery was modest, considering what they had initially sought in this litigation, and the damages each received was well under $50,000.00. Consequently, r. 76.13 of the Rules of Civil Procedure must be considered.

Rules 76.13

[9] In regard to actions commenced on or after January 1, 2002 and before January 1, 2010 in which a plaintiff is awarded money, exclusive of interest and costs, in the amount of $50,000.00 or less, r. 76.13(3) provides that a plaintiff shall not recover any costs unless:

(a) the action was proceeding under the Simplified Procedure of r. 76 at the commencement of the trial; or

(b) the court is satisfied that it was reasonable for the plaintiff,

(i) to have commenced and continued the action under the ordinary procedure, or

(ii) to have allowed the action to be continued under the ordinary procedure by not abandoning claims or parts of claims that do not comply with subrule 76.02(1), (2) or (2.1).

[10] In my view, despite the small awards when compared to the damages sought, it was reasonable for the Plaintiffs to have commenced and continued the action under the ordinary procedure. Discovery was important to enable the Plaintiffs to pursue their case. As well, this was one of those cases where the Court benefitted from hearing oral evidence in order to gain a better appreciation of the dynamics at play. Receiving evidence in chief by way of affidavits would not have provided the Court with as good an appreciation of the significance of events as oral testimony gave. The legal issues were sufficiently complex to require a day and a half of submissions and tomes of legal authorities. A total of 90 minutes of argument, as mandated under r. 76.12(1)9, even if doubled, would have been woefully inadequate. Finally, where, as in this case, the key issue was the enforcement of the Plaintiffs’ Charter rights, I agree with the following observation of Myers J. in Elmardy v. Toronto Police Services Board, 2015 ONSC 3710, at para. 12:

Especially when what was in issue was not principally money but Charter rights and the restoration of Mr. Elmardy’s “feeling” of the law, the fact that the judgment was for a modest monetary amount does not undermine the reasonableness of the plaintiff’s need for the full procedural panoply of the ordinary civil process.

Offers to Settle

[11] No Offers to Settle were served which engaged costs consequences under the Rules of Civil Procedure.

Considerations under Rule 57

[12] This litigation lasted eight years. In Reply Costs Submissions, the Plaintiffs’ counsel provided a Bill of Costs showing the steps taken by the two lawyers who worked on the file and the time assigned to each step. The hourly rate of the lawyers during each of the eight years when the file was open was not indicated, even though it must be assumed that the lawyers charged less per hour in 2008 than they charged in 2016. All of Mr. Greenspon’s time over the eight years was charged at $375 per hour, and Ms. Victor’s at $250 per hour. This is inappropriate.

[13] As well, considering the recovery in this action, having both a senior and a junior lawyer assigned to the file and attending each day of trial cannot be justified. As well, considering the award ultimately made following the trial, for costs purposes, it is hard to justify having a very senior lawyer handling the file.

[14] It appears from the Bill of Costs that no step taken on the file received a docketed time of less than .2 of an hour, or 12 minutes – even if the step involved the review of an email. Sixteen hours were docketed by the Plaintiffs’ counsel for attendance at discoveries but, according to the Defendants’ counsel, the discoveries took only three hours and 20 minutes. Several days were docketed to research, preparation of Books of Authorities, and trial preparation by both of the Plaintiffs’ lawyers. At one point, each docketed a full day for meeting with the other to discuss trial preparation. Both attended the trial and charged counsel fees for that attendance.

[15] In summary, the docketing on the file was heavy; the file did not justify the high fees of a very senior lawyer maintaining carriage of the matter; and the file could not support two lawyers docketing extensive time to all aspects of trial preparation and attendance.

[16] This leads to the important consideration of proportionality and the factor enumerated in r. 57.01(0.b), namely “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.” The Defendants did not provide any evidence as to what their reasonable expectations were in regard to the likely costs of the Plaintiffs. Nevertheless, I find that it would be doubtful that the Defendants in this proceeding would have reasonably contemplated that, in order to recover approximately $51,000.00, the Plaintiffs would have incurred legal fees and disbursements in the range of $118,000.00.

[17] Each Plaintiff claimed damages of $500,000. Each recovered a fraction of this amount. Their claims for punitive, exemplary, and aggravated damages were unsuccessful.

[18] The factual framework underlying this action was not complex. The legal issues were complex and challenging.

[19] The issues raised in this action were important – not only to the Plaintiffs and the Defendants – but also to the broader issue of how police services are delivered in this community. This is a subject very much in the limelight these days, and it is important for the Court to offer guidance as to expectations regarding police conduct. This was an important case for the Plaintiffs to pursue, even in the face of jurisprudence suggesting that their recovery of damages would be limited. By pursuing this litigation, the Plaintiffs were not only serving their own needs but were also advancing the need of the community to hold its police force to account for its actions.

Defendants’ Costs Regarding Plaintiff’s Unsuccessful Motion

[20] The Defendants are entitled to their costs in regard to the Plaintiffs’ unsuccessful motion to reopen their case. The parties are in agreement that $3,750.00 is a reasonable amount for the Defendants’ costs regarding this motion.

Disposition

[21] Taking these factors into account, I conclude that a fair and reasonable costs award in all of the circumstances is for the Ottawa Police Services Board to pay the Plaintiffs costs fixed in the amount of $65,000.00 inclusive of disbursements and HST, less the $3,750.00 owed by the Plaintiffs to the Defendants, for a net costs recovery to the Plaintiffs of $61,250.00.

Aitken J. Released: May 5, 2017