COURT FILE NO.: CV-10-406201 DATE: 20180924 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Esau Max Wynter Jr., Plaintiff AND: Toronto Police Services Board, Chief of Police William Blair, Jason Contant, David Cavanagh, Thomas Urbaniak, Tomasz Galazka, Panayiotis Karagan, Aaron Smith, James Eichenberg, David Irish, James Mclane, Michael Sabadin, Sin-Joong Kim, Mike O’Connor, Jason Hillier, Chad Reid, Robert Warrener, Robert Wallace, Pietro Grande and Dustin Bursey, Defendants
BEFORE: D.A. Wilson J.
COUNSEL: Andrew Stein, Counsel for the Plaintiff Douglas O. Smith and Samantha Bonanno, Counsel for the Defendants
HEARD: By written submissions
ENDORSEMENT on costs
[1] I presided over the trial of this action, which involved a claim by the Plaintiff that the Defendants used excessive force during the execution of a search warrant and as a result, he suffered damages. The trial took 8 days of trial time. In written reasons, I found the amount of force used was excessive and awarded the Plaintiff damages of $53,231.00 plus prejudgment interest. I indicated that if counsel could not agree on costs, I would fix them.
[2] I have received written submissions on costs from counsel, which I have reviewed and considered.
Positions of the Parties
[3] The Plaintiff asks for costs throughout on a partial indemnity scale, fixed in the sum $117,650 plus HST and disbursements of $14,998.85 inclusive of HST. Mr. Stein argues that the litigation was conducted over the course of more than 8 years and the defence never made an offer to settle. The action was complicated and the matters in issue of great importance to the parties. While the recovery was within the jurisdiction of Simplified Procedure matters, it is submitted the costs should not be on that scale because it was reasonable for the Plaintiff to have commenced and continued the action under the ordinary Rules. It is the position of the Plaintiff that the time claimed is reasonable and the amount is within the contemplation of the unsuccessful Defendants.
[4] The Defendants do not dispute that the Plaintiff is entitled to costs, but submit the costs should be fixed in the sum of $25,000 plus reasonable disbursements. Mr. Smith argues that this sum is proportional to the amount of damages awarded following trial and the issues were not complicated. Rather, it is submitted, the conduct of the Plaintiff lengthened the proceeding, and the trial. It is the position of the Defendants that this action ought to have been brought under the Simplified Procedure and the costs being claimed by the Plaintiff are not proportional to the amount recovered.
Analysis
The Law on Costs in Ontario
[5] 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 costs shall be paid.
[6] Rule 57.01 of the Rules of Civil Procedure identifies the factors a court may consider when exercising its discretion to award costs:
In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[7] Certain principles have been established that serve as a guide when the court is exercising its discretion when fixing costs.
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (Cou2005), 75 O.R. (3d) 638 (C.A.).
The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.) Epstein J.A. stated at paras. 51-52:
As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.
[8] The Courts of Justice Act gives the court a wide discretion concerning the award of costs, the quantum of costs and the parties that must pay a costs order. Rule 57.01 provides the court with guidance about the various factors that may be considered when exercising its discretion.
[9] In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10, Perell J. succinctly outlined the purposes of modern costs rules as follows:
Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: [Citations omitted].
[10] Generally, in civil proceedings in Ontario, the rule of thumb is that costs follow the event unless there is a persuasive reason that they should not. Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5, described the “normative approach” to an application for costs:
Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms. [Emphasis added].
What is the Proper Amount of Costs?
[11] I turn now to the consideration of what is the proper quantum at which costs should be fixed. It is my objective to fix an amount that is fair and reasonable, considering the factors set out in Rule 57.01. It must be a sum that the Plaintiffs as the unsuccessful party could reasonably expect to pay after a trial: see Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.).
[12] Mr. Stein’s hourly rate of $325 is not unreasonable given his seniority at the bar. The majority of the work on this file was done by Mr. Stein; he claims a total of 130 hours up to the commencement of trial and a further 48 hours for trial attendance. Mr. White, an associate, has 80 hours of time and a further 49 hours for the trial. I note there were 7 days of discovery, a mediation, a pretrial and trial preparation prior to the commencement of trial. These are all fairly standard events in a case of this nature. I do not find the number of hours claimed excessive, although there is some duplication between counsel.
[13] I reject the suggestion that given the quantum of damages awarded at trial the action ought to have been commenced under the Simplified Rules and as such, the Plaintiff should be restricted to lower costs. The action as framed was complicated; the Defendants denied liability and claimed they adhered to the proper procedure when executing the search warrant. Liability was hotly contested. It was necessary for the Plaintiff to conduct examinations for discovery of the various Defendants, given the credibility issues and the conflicting evidence as to what occurred during the execution of the search warrant. Rule 76.04 (2) provides a two hour limit for all examinations for discovery regardless of the number of parties to be examined. This alone would preclude this action from being properly brought under the Simplified Procedure. The fact that the outcome at trial was within the monetary jurisdiction of the Simplified Rules cases does not mean it ought to have been commenced under Rule 76 or that the costs should be reduced. Further, the action was one for damages for personal injuries, which can vary; the claim could have assessed in excess of $100,000, depending on the evidence that the Court accepted. I do not find that this case should have proceeded under the Simplified Rules.
[14] The Plaintiff made a formal offer to settle pursuant to Rule 49 with general damages of $85,000 plus an additional $27,835.49 in special damages. In my view, that was a reasonable offer to settle; it included nothing for the exemplary damages that were being claimed and very little for loss of income. It represents a reasonable compromise and while the damage award was less than the Plaintiff’s offer, the offer is a factor I may consider when determining costs. Given that the Defendants never made an offer to settle, the outcome following trial was closer to the Plaintiff’s offer than it was to zero.
[15] Without a doubt, the issues were very important to all of the parties. In particular, I accept that this lawsuit was very important to the Plaintiff and to his family; according to his evidence, the events giving rise to this litigation have altered the path of his life. The Defendants decided not to make an offer to settle and this position drove the case on to trial. I am not being critical of the decision of the Defendants; much turned on credibility of the various parties and as I noted in my reasons, there was a great disparity in the evidence on what occurred after the police officers entered the apartment of the Plaintiffs to execute the search warrant. However, the Defendants were aware that if the Plaintiffs were successful at trial, the normative approach dictates that they would recover their costs of the action. Given that the litigation had taken 8 years to reach trial, the Defendants could not reasonably have expected that if the Plaintiffs were successful, an appropriate figure for costs would be $25,000 as counsel for the Defendants suggests.
[16] In my view, taking into account the principle of proportionality, along with the other factors enumerated in Rule 57.01, I am of the view that the Plaintiff is entitled to costs of the action on a partial indemnity basis, which I fix in the amount of $100,000 plus HST. With respect to the disbursements, they appear to be appropriate. The solicitor for the Defendants suggests that some of the invoices are for taxis but he fails to specify which amounts are being challenged. The sum of $14,988.85 is not surprising and is quite low for an action involving personal injuries, where the expert reports usually drive the disbursement figure up beyond what can be considered reasonable.
Order
[17] The Defendants shall pay to the Plaintiff forthwith costs on a partial indemnity scale fixed in the sum of $100,000 plus HST plus the disbursements of $14,988.85.