Court File and Parties

COURT FILE NO.: CV-14-00503631

DATE: 20180821

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LUKE STEWART, Plaintiff

AND:

THE TORONTO POLICE SERVICES BOARD, Defendant

AND:

CANADIAN CIVIL LIBERTIES ASSOCIATION, Intervenor

BEFORE: Dietrich J.

COUNSEL: Davin Charney and Christopher Rapson, for the Plaintiff

Kevin McGivney and Jonathan Thoburn, for the Defendant

Vitali Berditchevski, Alex Smith and Gabriel Edelson, for the Intervenor

HEARD: By written submissions

ENDORSEMENT on costs

[1] The plaintiff commenced his action in Small Claims Court and later obtained an order traversing the action to the Superior Court of Justice. In the Small Claims Court action, he sought $10,000: in general damages; or, alternatively, for Charter breaches; or, alternatively, for aggravated and punitive damages. At trial in the Superior Court, the plaintiff sought $100,000 in damages for breach of his Charter rights and freedoms, including his freedom of peaceful assembly, his right to be secure against unreasonable search and seizure and his right not be arbitrarily detained.

[2] I delivered written reasons for judgment on July 13, 2018 dismissing Mr. Stewart’s action. I received submissions from counsel for each of the defendant and the plaintiff. The plaintiff submits that there should be no costs award on the basis that the case was pursued on a matter of principle, as opposed to significant financial gain; and it was pursued because it was important to the public interest.

[3] The defendant submits that a modest costs award is appropriate and just in the circumstances. The defendant argues that the plaintiff, in traversing his action to the Superior Court, accepted that considerable additional litigation costs would be incurred, including the costs of discovery. In the Superior Court, the plaintiff amended his claim to include the intentional tort of misfeasance of public office, and aggravated and punitive damages in the amount of $100,000. The defendant submits that these allegations were advanced without evidence beyond the video evidence used at trial and available to the parties from the outset.

[4] The defendant also submits that it made good faith and reasonable offers to settle to avoid the costs of a trial. It made two offers pursuant to rule 49 of the Rules of Civil Procedure in advance of the trial, neither of which was accepted by the plaintiff. Accordingly, the plaintiff assumed the risks of proceeding to trial.

[5] The court is granted a wide discretion when determining the appropriate quantum of costs. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides as follows:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[6] Taking into account the relevant factors set out in rule 57.01(1) of the Rules of Civil Procedure, including the offers to settle made early in the litigation, and the plaintiff’s assumption of the risk of higher costs in traversing his action to the Superior Court, I fix the costs at $25,000 inclusive of HST and disbursements. This is a modest cost award.

Dietrich J.

Date: August 21, 2018