Court File and Parties

Citation: Painter v. Richardson, 2017 ONSC 6247 File No.: 6242/94 (Hamilton) Date: 2017/10/20 Superior Court of Justice - Ontario

Re: Ernest W. Painter, Plaintiff And: Ronald Richardson, Michael Lewicki, Joyce Lennon, Al Barber, Brantford Police Services Board, Her Majesty the Queen in the Right of Ontario, John Ayre, Lois Aitken, Keith Swanson, Robert Thompson and the Corporation of the City of Brantford, Defendants

Before: The Honourable Justice G.E. Taylor

Counsel: Bruce Hillyer and Stephen Abraham, Counsel for the Plaintiff Devon Ryerse and Richard MacGregor, Counsel for the Defendants, Ronald Richardson, Joyce Lennon, Al Barber, Brantford Police Services Board and the Corporation of the City of Brantford

Heard: October 3, 4, 5, 6, 7, 11, 12, 13, 14, 17, 18, 19, 20, 24, 25, 26, 27, 31 and November 10, 18, 2016 and May 15, 2017

Cost Endorsement

[1] The plaintiff sued for damages in excess of $5,000,000. His claim was dismissed. The defendants submit that they ought to be awarded partial indemnity costs totaling $232,663, made up of fees including taxes in the amount of $151,731 and disbursements including taxes in the amount of $80,932. The plaintiff submits that there ought to be no costs awarded or alternatively that the costs sought by the defendants be significantly reduced based on duplication of effort by counsel for the defendants and the plaintiff’s current financial situation.

[2] Although the defendants made an Offer to Settle, it was not in compliance with Rule 49 of the Rules of Civil Procedure. In any event, because the action was dismissed, Rule 49 has no application[^1]. The defendants are presumptively entitled to partial indemnity costs of the action.

[3] The Statement of Claim was issued in June, 1994. The trial took place in 2016. No explanation was given as to why it took more than 20 years to bring this case to trial. The plaintiff says that the costs of the defendants should be reduced because of duplication of work by several lawyers. One of the lawyers who acted for the defendants was appointed to the bench and another became disabled. It was the responsibility of the plaintiff to prosecute his claim. He cannot now claim that because it took so long to bring the case to trial, the defendants should not be allowed costs for different lawyers who worked on the file. It was inevitable that over 20 years there would be changes in personnel who worked on the file.

[4] According to the plaintiff his only income is pension and disability income from the Canada Pension Plan. He says that the costs sought by the defendants are “grossly in excess of his ability to pay”.

[5] The factors to be considered when exercising the discretion to award costs are set out in Rule 57.01(1) of the Rules of Civil Procedure. Those principles include the amount that an unsuccessful party could reasonably expect to pay. The plaintiff’s claim, as I have previously stated, was for in excess of $5,000,000. The trial lasted several weeks. According to the plaintiff’s Cost Submissions, he has incurred more than $140,000 in disbursements in relation to this proceeding. The time spent by his counsel preparing for and presenting the evidence in this case is not known. However, the plaintiff must have appreciated that if his claim was unsuccessful he would be faced with having to pay a substantial award of costs.

[6] Other factors set out in Rule 57.01(1) are the complexity of the proceedings and the importance of the issues. The plaintiff in his Cost Submissions refers to the “complex nature of these matters” and “the complexity of the issues”. The issues in the case were important to both parties.

[7] The final factor set out in Rule 57.01(1) which I propose to address is that of indemnity. Other than the claim of duplication of work, the plaintiff does not take issue with the time spent by counsel for the defendants. The defendants were represented at trial by two counsel. Senior counsel with 10 years of experience recorded 608 hours in preparation for trial and acting as counsel at trial. Junior counsel with four years of experience spent 352 hours in preparation for trial and acting as counsel at trial. These hours are significant. Counsel for the defendants were well prepared and presented the case thoroughly and efficiently. The hourly rate for the vast majority of time spent by senior counsel is $102 and for junior counsel is $93. These hourly rates, in my view, are reasonable and could be considered modest.

[8] The plaintiff does not take issue with the disbursements for which reimbursement is claimed by the defendants.

[9] I am not assessing costs. My task is to fix an amount for costs to be paid by the plaintiff to the defendants which is fair and reasonable in all of the circumstances. I have come to the conclusion that the costs of the defendants payable by the plaintiff on the partial indemnity scale, including disbursements and all taxes, should be fixed at the all-inclusive sum of $225,000.

“G.E. Taylor”

G.E. Taylor, J.

Date: October 20, 2017

[^1]: (Davies v. Clarington (Municipality), 2009 ONCA 722 at paragraph 40 and Scapillati v. A. Potvin Construction Ltd., 1999 1473 (ON CA), [1999] O.J. No. 2187 at paragraph 63)