Court File and Parties

COURT FILE NO.: SR 9673/08 (Welland) DATE: 2017-01-18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCO ALBANESE Plaintiff

Margaret A. Hoy, for the Plaintiff

- and -

ADAM FRANKLIN, ROBERT KISH, GRAEME ORR, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD Defendants

Mickey Cruickshank, for the Defendants

COSTS JUDGMENT

[1] This was a simplified matter; therefore, relief is capped at $100,000.00 exclusive of interest and costs: Rule 76.02(1) of the Rules of Civil Procedure. Judgment was released November 3rd, 2016. The claim against the defendants remaining at trial was dismissed in its entirety. The judgment concluded with the usual request for cost submissions, in the event unanimity on that issue was not achieved. Not surprisingly, given the conduct of this matter, that was not achieved. The cost submissions have been received and reviewed.

Costs Generally

[2] The costs of and incidental to a proceeding are within the discretion of the court: ref. section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Interestingly the same section of the statute at paragraph (2) specifically addresses the possibility that a government party who has salaried lawyers on staff is still entitled to a cost award. That possibility is also addressed in section 36 of the Solicitors Act, R.S.O. 1990, c. S.15.

[3] In Ontario v. Rothmans Inc., 2013 ONCA 353, Justices Simmons and Blair writing on behalf of the panel (Justice Doherty in agreement) referring to the above sections, noted that the discretionary power of the court is pertinent with respect to salaried legal counsel, particularly in government service. That being said, “Rates and hours spent are not particularly “applicable” in situations where counsel are salaried employees of their employer litigant. In those circumstances, the salaried lawyer does not generally send a bill to his or her employer for services rendered, with or without hourly rates”.

[4] The authors proceeded at para. 136 to state:

As Ontario acknowledges, these provisions do not deprive the court of its discretion in fixing costs. However, the courts in many jurisdictions have adopted the principle that, where a successful party is represented by a salaried lawyer, the proper method of fixing costs is to deal with them as though they were the costs of an independent outside counsel. The theory behind this approach is that it will roughly and fairly approximate the actual amount of expenses incurred....

[5] The authors of the judgment also referred to the decision of Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (ONCA) at para. 26 where His Honour stated: “The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. This belief in what is “fair and reasonable” resonates throughout cost jurisprudence. The belief is particularly important in a day and age where there is widespread concern for access to justice. The Simplified Rules are seen as a matter of achieving this access with the emphasis on a streamlined procedure to achieve amounts less than $100,000.00. Indeed, the plaintiff raises the latter concept in referring to the modest circumstances of her client. On the other side of the coin, that does not mean that public bodies such as the Niagara Police Services Board should be foregoing costs. Surely taxpayers are entitled to achieve recovery of costs as long as that recovery is within the rubric of what is “fair and reasonable”. That theme informs the discretion to be exercised.

[6] Rule 57.01 of the Rules of Civil Procedure sets out a series of general principles which give texture to what is “fair and reasonable”.

[7] Generally speaking, a successful party is entitled to indemnification of their costs. Starting from that premise, the jurist considers: a) the existence of offers to settle (not necessarily limited to formalistic offers of Rule 49 of the Rules of Civil Procedure); b) the complexity and importance of the issues; and c) the conduct of the party that tended to shorten or lengthen unnecessarily the duration of the proceeding, with an eye to whether some behaviour was improper, unnecessary, and possibly negligent.

[8] Obviously, the last mentioned indicia are to emphasize the necessity for efficiency in the litigation process. This is not a game; it is not an exercise to make litigious life any more difficult than it need be.

Analysis

[9] As mentioned, counsel for the plaintiff emphasizes the moderate circumstances of her claim. The plaintiff earns roughly between $36,000.00 to $48,000.00 per annum.

[10] Justice Mew in Rightmeyer v. Fitzgerald, 2016 ONSC 6900 was quoted from his para. 26:

If one then takes into account what would be fair and reasonable in all of the circumstances, it seems to me that the award of costs against the plaintiff should be modest; enough to send the message that he must accept responsibility for indemnifying the party he unsuccessfully sued, but not so much as would deter a person... from pursuing justice by advancing a potentially meritorious claim.

[11] There were important but not necessarily complex issues to both sides. The plaintiff believed he had been subjected to highhanded behaviour on the part of the police; the defendants had their integrity challenged in thankless circumstances that arise during the course of police work.

[12] Presumably, counsel representing a person of modest means would try and keep expenses to a minimum and be as efficient as possible again with that goal.

[13] No doubt, counsel for the plaintiff was cognizant of the fact that an acquittal by an Ontario Court of Justice jurist of the charges that led to the alleged negligent conduct of the police did not make the success of the civil suit a foregone conclusion. That would especially be the case when there were at least four officers and a civilian witness who would attest as to the lack of sobriety of the plaintiff. It was not a perfect case to advance. The prosecution of the case required a nuanced approach.

[14] Regrettably, that was not the approach. Disclosure by the plaintiff was a problem. The trial was adjourned on consent September 1st, 2010, and on two occasions the issue of failure to comply with undertakings by the plaintiff resulted in orders; namely the order of Justice Maddalena of August 6th, 2015 in which costs were awarded against the plaintiff, and an endorsement by Justice Tucker on November 4th, 2014. Disclosure by the plaintiff persisted as a problem even after these orders (see correspondence from counsel for the defendants dated May 22nd, 2015). This was exacerbated by inconsistent reporting by counsel for the plaintiff as to whether a particular doctor had any records.

[15] The plaintiff did make offers to settle which have been described by the defence as “wild” in that both exceeded the limits of the Simplified Rules: 1) namely that of $120,000.00 plus interest and costs June 26th, 2014; and 2) May 8th, 2015, an offer of $400,000.00 plus interest and costs. By contrast, the offers of the defence, May 5th, 2015, $20,000.00 all in, and April 8th, 2016 of $35,000.00 all in, were infinitely reasonable.

[16] At least with the defendants’ offers, counsel for the plaintiff could have possibly massaged out another $10,000.00 to $15,000.00. That certainly was not going to happen with the plaintiff’s offers. Did counsel somehow think with offers way beyond the scope of the Rules that the defence would somehow be intimidated or threatened? From a tactical point of view, the plaintiff’s offers made any settlement discussions virtually impossible. That fact, plus the basic difficulty by the defence in getting disclosure, made the case that took eight years to get to trial as something to be endured until a judgment was finally rendered.

[17] All in all, the conduct of this case by the plaintiff seems inconsistent with protecting the interests of a modest litigant and totally devoid of an appreciation for the efficiencies and objectives of the Simplified Rules.

[18] Keeping in mind the words of Justice Armstrong referred to above and the theme of “fair and reasonable” one approaches the accounts submitted by the defence. It is obvious that the legal department of the Police Services Board does engage in a form of docketing.

[19] The hourly rate suggested for counsel for the defendants of $200.00 and $250.00 is quite reasonable, if not modest, by private sector standards.

[20] With eight days of trial of roughly five hours per day when counsel are on high alert, it is not unusual that a counsel fee would be charged. A modest counsel fee of $4,000.00 a day (which could be charged by counsel of the vintage of the counsel for the defendants) would result in a total counsel fee of $32,000.00.

[21] Obviously, there is preparation associated with being trial counsel. Some advocates talk of four hours preparation for each hour you are “on your feet”. That would make for a preparation fee of roughly $40,000.00 for 160 hours.

[22] Therefore, a Bill of Costs submitted by counsel for the defendants in the amount of $68,093.99 is not unreasonable. Granted it does seem a little disproportional for a simplified proceeding, but given the disclosure issues and “wild offers” it could happen.

[23] The total disbursements of $2,421.49 are unassailable.

[24] The jurist is required obviously to assess the reasonableness of the Bill of Costs, which in this case, it was. However, the approach by counsel for the plaintiff should not necessarily be visited upon the plaintiff himself. It still remains he is a litigant of modest means. It would be an onerous burden for him to shoulder this otherwise reasonable bill. Principally for that reason and mindful of what Justice Mew stated above, costs inclusive of disbursements are fixed at $35,000.00.

Whitten J. Released: January 18, 2017