Court File and Parties
COURT FILE NO.: 10-49203
DATE: 2018/05/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Roxanne Carr
Plaintiff
– and –
Ottawa Police Constable Cindy Cybulski; Ottawa Police Constable Michael Adlard; Ottawa Police Constable Shawn Virgin; Ottawa Police Constable Darren Shore; Ottawa Police Detective Constable David West; Ottawa Police Special Constable M. Morris; Ottawa Police Special Constable Richard Marcil; Ottawa Police Sergeant Steven Desjourdy and the Ottawa Police Services Board
Defendants
COUNSEL:
Lawrence Greenspon, counsel for the Plaintiff
Geoffrey J. Cantello, counsel for the Defendants
HEARD AT OTTAWA: May 14, 2018
RULING AS TO COSTS AT TRIAL
Corthorn J.
Overview
[1] The plaintiff’s claim arose from her arrest and detention in August 2008. The claims advanced were based in false arrest and imprisonment, excessive use of force, negligent investigation, and breach of the plaintiff’s Charter rights.
[2] The plaintiff commenced this action in 2010. It did not, however, proceed in a meaningful way until 2011, after criminal charges against the plaintiff arising from the events in August 2008 were ultimately withdrawn. The trial of this action took place over nine days in May 2016. The plaintiff’s claims against the Ottawa Police Services Board and five of the eight individually named officers were successful.
[3] The plaintiff was awarded damages as follows:
a) General damages in the amount of $90,000;
b) Damages for loss of earning capacity in the amount of $120,000;
c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84; and
d) $7,500 pursuant to section 24(1) of the Charter.
[4] The damages awarded to the plaintiff total $254,726.84.
[5] The trial decision was released in July 2017 (2017 ONSC 4331). The parties resolved the issue of pre-judgment interest ($52,266.05). The total of the damages awarded and pre-judgment interest agreed upon is $306,992.89.
[6] The parties were unable to resolve the issue of costs. They made both written and oral submissions with respect to costs.
Positions of the Parties
[7] The plaintiff seeks costs in the amount of $191,126.33. That figure includes fees, disbursements, and applicable HST. The plaintiff calculates costs on a partial indemnity basis to September 29, 2015, and on a substantial indemnity basis thereafter. In doing so, the plaintiff relies on an offer to settle made on September 29, 2015 (the “Offer”).
[8] The defendants raise a number of issues with respect to the costs claimed by the plaintiff and submit that costs in the amount of $134,522.99 are reasonable.
[9] The defendants do not dispute the disbursements claimed by the plaintiff ($10,242.99 including HST).
[10] The plaintiff’s claim was successful as against the defendant Board and against five of the individually-named officers. The individual defendants who were successful in defending the claims against them are not seeking costs. Throughout the balance of this ruling, when referring to “the defendants” I mean the individual defendants against whom the plaintiff’s claims were successful and the defendant Board.
Analysis
[11] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Those factors include the principles of indemnity and proportionality, the amount that the unsuccessful party could reasonably expect to pay, the amount claimed and recovered, the complexity of the proceeding, the importance of the issues, and the conduct of the parties that impacted (negatively or positively) the duration of the proceeding.
[12] Offers to settle made by the parties may also be considered. The plaintiff submits that the terms of the Offer are such that she is entitled to costs on a substantial indemnity basis from the date of the Offer forward. The defendants argue that the terms of the Offer do not trigger a change, from partial to substantial indemnity, to the scale on which costs are awarded.
[13] The first issue to be determined is the scale on which costs are to be awarded to the plaintiff.
Scale of Costs
[14] The terms of the Offer are as follows:
The Defendants shall pay to the Plaintiff the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000);
The Defendants shall pay to the Plaintiff pre-judgment interest at the rate of 5 % on the above amount as of August 23, 2008;
The Defendants shall pay to the Plaintiff their partial indemnity costs up to the date of this Offer to Settle, as agreed upon or assessed;
The Defendants shall pay to the Plaintiff their substantial indemnity costs after the date of this Offer to Settle, as agreed upon or assessed.
[15] The plaintiff acknowledges that the pre-judgment interest rate of five per cent per year applies only to the award of general damages. The balance of the pre-judgment interest is calculated on the basis of the rate prescribed by the Courts of Justice Act, R.S.O. 1990, c. C.43.
[16] The plaintiff submits that, regardless of the manner in which pre-judgment interest is addressed in the Offer, she clearly achieved a result that is more favourable than the terms of the Offer:
• The total payable of $306,992.89 is much greater than would be the total of the damages and interest payable based on the terms of the Offer. The latter total is $217,500 ($150,000 for damages and $67,500 in pre-judgment interest at 5 per cent per year on that amount); and
• The total of the damages awarded ($254,726.84) is well in excess of the damages figure ($150,000) set out in the Offer.
[17] The defendants argue that the manner in which the plaintiff addressed damages and pre-judgment interest is such that the Offer does not give rise to the costs consequences set out in rule 49.10 of the Rules. In particular, the defendants submit that the comparison to be made is between the $90,000 awarded in general damages and the $150,000 set out in the Offer because (a) the 5 per cent pre-judgment interest rate in the Offer is applicable to $150,000, and (b) only general damages awarded in the amount of $90,000 attract a pre-judgment interest rate of 5 per cent per year.
[18] I am satisfied that the Offer is a Rule 49 offer. It was made more than seven days prior to the commencement of trial. The Offer was neither withdrawn nor did it expire prior to the commencement of the trial.
[19] I am also satisfied that the first and second terms of the Offer (damages and pre-judgment interest) are easily comparable to the result achieved by the plaintiff. The arithmetic involved is straight-forward. In total, the plaintiff achieved a result that exceeds the amount payable pursuant to the terms of the Offer by approximately $90,000 ($307,000 - $217,500). If damages alone are considered, the result achieved exceeds the amount payable pursuant to the Offer by $105,000 ($254,726 - $150,000).
[20] I agree with the submission on behalf of the plaintiff that the frailties in the terms of the Offer should not detract from the intent behind Rule 49. That intent includes encouraging settlement negotiations between parties to an action.
[21] In summary, I find that the plaintiff obtained a judgment “as favourable as or more favourable than the terms of the offer” within the meaning of rule 49.10(1) of the Rules. The plaintiff is entitled to costs on a partial indemnity basis to the date of the Offer and on a substantial indemnity basis thereafter.
Quantum of Costs
[22] The next step is to determine the quantum of costs payable by the defendants. Below I list each of the factors identified in rule 57.01, identify whether or not the particular factor is relevant to the quantum of costs, and, if it is relevant, discuss the factor.
a) Principle of Indemnity (sub-rule 57.01(0.a))
[23] The plaintiff was represented by senior counsel with 37 years of experience. Senior counsel was assisted over time by two different associate counsel within his office. Both associate counsel had more experience than might typically be expected for junior counsel. Despite that additional experience, the hourly rates and counsel rate for junior counsel on this matter are in keeping with rates for counsel at a junior level.
i) Hourly Rates
[24] The defendants do not, in any event, question the hourly rates for either senior or junior counsel. The partial and substantial indemnity rates charged by counsel are as follows:
Year Senior Counsel Junior Counsel
2010-11 $300 (Partial) $200 (Partial)
2012-13 $325 (Partial) $215 (Partial)
2014-Sept./15 $350 (Partial) $225 (Partial)
Sept./15-2017 $500 (Subst.) $250 (Subst.)
[25] Looking at the rates for senior counsel, a partial indemnity rate of $300 represents a full indemnity rate of $500 (with the former representing 60 per cent of the latter). Similarly, $325 represents a full indemnity rate of $540 and $350 a full indemnity rate of $585 (using rounded figures). I am satisfied that those hourly rates and the partial indemnity hourly rates for junior counsel are reasonable.
[26] A substantial indemnity rate of $500 for senior counsel equates to an actual hourly rate of $555. I am satisfied that the substantial indemnity rates for both senior and junior counsel are reasonable.
ii) Counsel Fee
[27] The defendants do not take issue with the junior counsel fee at trial of $3,000, in terms of the fee itself. I am satisfied that $3,000 is a reasonable counsel fee for junior counsel at trial. The defendants take issue with the presence of junior counsel throughout the trial. That issue is addressed elsewhere in this ruling.
[28] The defendants also take issue with the counsel rate of $5,500 for senior counsel. In support of the senior counsel fee of $5,500, the plaintiff relies on a 2014 decision of Justice Beaudoin in which he allowed the same senior counsel a counsel fee of $5,000 (Nahas v. Haddad, 2014 ONSC 1073, at para. 50). In the present action, the plaintiff applies indexation of five per cent per year, for two years, to $5,000 in support of the request for a senior counsel fee of $5,500.
[29] During oral submissions, I expressed the view that some increase from 2014 is warranted and that by applying indexation of two per cent per year, I arrive at a counsel fee of $5,200. Neither counsel took issue with that approach. The costs awarded are therefore based on a senior counsel fee of $5,200 for each day of trial.
iii) Number of Hours
[30] The principle of indemnity requires consideration of the number of hours spent by each of senior counsel and junior counsel. The defendants raise concerns with respect to a number of aspects of the work done on behalf of the plaintiff.
[31] First, the defendants identify that for all but two of the examinations for discovery conducted in this matter, both senior counsel and junior counsel were present. Of particular concern to the defendants is that both senior and junior counsel were present for the examination for discovery of the plaintiff. The defendants submit that the presence of two counsel was not necessary and amounts to duplication of effort.
[32] In response, the plaintiff argues the practice in counsel’s office is for junior counsel to do much of the work in preparation for examinations for discovery and not to docket for that work. As a result of the efforts of junior counsel, the time spent by senior counsel in preparing for examinations for discovery is reduced.
[33] As I pointed out during oral submissions, there is some benefit and efficiency in having junior counsel present at examinations for discovery. An alternative to the presence of junior counsel is for the transcript of the examination for discovery to be ordered (at a cost to the plaintiff). To facilitate the follow-up work with respect to undertakings etc., junior counsel would then be required to spend time reviewing the transcripts, etc. When the cost of the transcript and the post-examination time are considered, there may be little, if any, difference between that approach and the approach taken in this matter.
[34] I am satisfied that the complexity of the matter (discussed below) is such that it was reasonable for junior counsel to attend examinations for discovery. By attending the examinations, taking notes of the examinations, and doing the follow up work, junior counsel developed a level of familiarity with the evidence and the issues. I find that the presence of junior counsel at the examinations for discovery resulted in an increase in the efficiency of junior counsel when carrying out the balance of their work (i.e. research and preparation for trial).
[35] Second, the defendants raise the issue of the time docketed for communication with counsel for the plaintiff in the related criminal matter. That time falls in the years from 2010 to 2013. The latter is the year in which the criminal charges against the plaintiff were ultimately withdrawn.
[36] The plaintiff submits that communication with defence counsel in the criminal matter was required to ensure that steps taken in an effort to resolve the criminal matter did not prejudice the plaintiff’s right to proceed with the civil action. In that regard, the plaintiff relies upon the potential negative impact that entering into a peace bond could have had on her right to pursue the civil action.
[37] The plaintiff also submits that communication with defence counsel was required because of the relationship between disclosure in the criminal matter and documentary discovery obligations of the parties to the civil action.
[38] I note from the dockets included with the plaintiff’s costs submissions that the communication with defence counsel was not excessive in either frequency or duration. The time docketed for telephone conversations or emails is either 0.1 or 0.2 hours on all occasions.
[39] My only criticism of the time dockets for communication with defence counsel is that there are no descriptors for any of the communication. Without descriptors, the subject matter of the communication cannot be determined. I am confident that it is possible to provide a description of the subject matter without breaching solicitor-client privilege in either the criminal or the civil context.
[40] In summary, I find that the time docketed for communication with defence counsel is reasonable.
[41] A point not raised by the defendants but of concern to me is that many of the dockets in the bill of costs are boiler-plate entries without any meaningful information. There are virtually no descriptions provided of the subject matter of communication with the client (whether by telephone or email). As a result, it is not possible to know the extent to which the communication with the client relates to specific ongoing aspects of the litigation versus an element of meeting extraordinary needs of the client in terms of communication with counsel.
[42] With respect to the needs of the client, counsel for the plaintiff informed the Court that because the injuries the plaintiff suffered (and for which she was awarded damages) included psychological injuries, it was important that she be well-informed as to the status of the litigation. In addition, the plaintiff’s changing personal circumstances, psychological condition, and physical condition over time required that she communicate with her counsel to keep them up to date.
[43] While I accept the explanation provided by counsel for the plaintiff in that regard, in fixing costs, I have nonetheless taken into consideration that neither the defendants nor the Court has the information required to fully assess the work done on behalf of the plaintiff over time.
[44] It is important that dockets entered be descriptive of the work done. Dockets should provide the reader with the ability to determine what work was done over time without the reader having to refer to any narrative description in an accompanying document (such as a factum). Anyone reading a pre-bill or a bill of costs should, from the dockets alone, be able to tell how the litigation progressed, the outcome of interim steps (such as motions), and why the work docketed was done.
b) Reasonable Expectations of Unsuccessful Party (sub-rule 57.01(0.b))
[45] The defendants did not address this issue in their responding submissions.
c) Amount Claimed and Recovered (sub-rule 57.01(a))
[46] The defendants highlight that the damages claimed totaled $975,000. The plaintiff recovered approximately $255,000 in damages (26 per cent of the amount claimed). In my Reasons for Judgment, I found that there was a lack of evidence to support some elements of the damages claimed. Regardless, I find that the amount of work done as relates to the issue of damages is reasonable for the result achieved.
d) Apportionment of Liability (sub-rule 57.01(b))
[47] As noted above, only those defendants against whom the plaintiff’s claims succeeded are responsible for the costs awarded.
e) Complexity of the Proceeding (sub-rule 57.01(c))
[48] The defendants submit that the action did not involve either a complex set of facts or complex legal issues. I disagree.
[49] The assessment of damages included consideration of the plaintiff’s personal and employment history prior to August 2008 and of her psychological and physical condition subsequent to the events giving rise to her claims. The various causes of action were based on a series of events that unfolded over a number of hours on August 23 and ended in the early morning hours of August 24, 2008. The conduct of eight individual officers was put in issue. The policies and procedures of the Board were considered.
[50] The various causes of action required consideration of detailed legal argument and detailed submissions with respect to evidence relevant to each of the causes of action. The causes of action advanced varied from one individually-named defendant to the next.
[51] I find that the action was complex.
[52] I find that it was reasonable to have both senior counsel and junior counsel working on this matter over time, including having both counsel in attendance at trial. I also find that senior and junior counsel worked efficiently to minimize overlap of work in the conduct of the trial. With respect to the conduct of the trial, there was a discreet division of labour between senior and junior counsel. Senior counsel handled the evidence and argument with respect to the substantive claims advanced. Junior counsel handled the evidence and argument with respect to the issue of assessment of damages.
f) Importance of the Issues (sub-rule 57.01(d))
[53] The plaintiff submits that the pursuit of this action was important not only to her, but that it was also of broad public importance. With respect to the former, in the Reasons for Judgment, I recognized the importance of the action to the plaintiff. With respect to the latter, I agree with the comments made by Aitken J. at paragraph 19 of her decision in Tremblay v. Ottawa Police Services Board:
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 … 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. (2017 ONSC 2754)
[54] The plaintiff is a person of modest means. She had the benefit of counsel who was prepared to fund the litigation through to its conclusion. The plaintiff had the fortitude to see the matter through to its end – even though it took three years for the criminal matter to be resolved in her favour and an additional five years for the civil action to be determined in her favour.
g) Other Matters
[55] Neither the plaintiff nor the defendants relied on the factors set out in sub-rules 57.01(1)(e)–(h).
h) Summary - Quantum
[56] The plaintiff seeks fees totalling $160,075. That figure is broken down as follows:
• $31,400 to September 29, 2015 (partial indemnity);
• $52,175 from September 29, 2015 to the start of trial (substantial indemnity);
• $49,500 for senior counsel fee at trial ($5,500 x 9 days); and
• $27,000 for junior counsel fee at trial ($3,000 x 9 days).
[57] Taking into consideration the concerns expressed and findings made above, I award the plaintiff costs in the amount of $151,300 (excluding HST). That figure is comprised of the following amounts:
• $27,500 to September 29, 2015 (partial indemnity);
• $50,000 from September 29, 2015 to the start of trial (substantial indemnity);
• $46,800 for senior counsel fee at trial ($5,200 x 9 days); and
• $27,000 for junior counsel fee at trial ($3,000 x 9 days).
Disposition
[58] The defendant Board and the individually-named defendants against whom the plaintiff’s claims were successful shall pay to the plaintiff her costs of this action as follows:
Fees $ 151,300.00
HST on fees $ 19,669.00
Disbursements (incl. HST) $ 10,242.99
Total $ 181,211.99
Rounded to $ 181,210.00
[59] The costs payable are subject to post-judgment interest in accordance with the provisions of the Courts of Justice Act. In the event the parties are unable to agree upon the post-judgment interest rate or the amount payable (if any) with respect to costs, they may arrange to make further submissions in that regard.
[60] The parties requested that the costs of submissions with respect to costs not be addressed in this ruling. In the event the parties are unable to resolve the issue through negotiation, they shall make submissions in writing. The submissions shall comply with the following terms
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;
e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this Ruling is released; and
f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this Ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Other Matters
[61] I wish to thank counsel for their well-written materials and their thoughtful oral submissions with respect to costs in this matter.
Madam Justice Sylvia Corthorn
Released: May 17, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Roxanne Carr
Plaintiff
– and –
Ottawa Police Constable Cindy Cybulski; Ottawa Police Constable Michael Adlard; Ottawa Police Constable Shawn Virgin; Ottawa Police Constable Darren Shore; Ottawa Police Detective Constable David West; Ottawa Police Special Constable M. Morris; Ottawa Police Special Constable Richard Marcil; Ottawa Police Sergeant Steven Desjourdy and the Ottawa Police Services Board
Defendants
RULING AS TO COSTS AT TRIAL
Madam Justice Sylvia Corthorn
COURT FILE NO.: 10-49203
DATE: 2018/05/17
Released: May 17, 2018