Court File and Parties

Court File No.: 436/16 Date: 2019 07 02 Superior Court of Justice - Ontario

Re: Dale James, Plaintiff And: Peel Regional Police Services Board, PC- Bisson (also known as Badge No. 3710), PC-Scott (also known as Badge No. 3841), PC– Stacey (also known as Badge No. 3886), PC- Deston (also known as Badge No. 3659), Defendants

Before: Conlan J.

Counsel: Osborne G. Barnwell, Counsel for the Plaintiff Rafal Szymanski, Counsel for the Defendants

Endorsement

Motion for Summary Judgment - Costs

Introduction

[1] On January 28, 2016, the Plaintiff, Dale James (“James”), commenced an action, by way of a Statement of Claim, against the Defendants, Peel Regional Police Services Board (“Board”) and four Peel Police officers – Bisson, Scott, Stacey and Deston.

[2] The Claim seeks damages of several hundreds of thousands of dollars for numerous alleged torts and several alleged Charter breaches.

[3] The Board has defended the action, on behalf of itself and the four named officers. Liability and damages are both denied.

[4] James moved for summary judgment in his favour. The Motion was opposed. There was no cross-motion brought by the Defendants.

[5] This Court dismissed James’ Motion.

[6] Having been unable to settle the issue of costs, the parties have filed written submissions.

Decision

[7] I will not punish James for the conduct of his counsel. It is highly inappropriate to spend the majority of one’s costs submissions re-arguing the issues previously decided, yet that is precisely what counsel for James has done here. It is worthy of censure, however, James is not responsible for that.

[8] A few valid points have been made by counsel for James.

[9] First, I agree that this is not a case for substantial indemnity costs in favour of the Defendants. Although the Motion for summary judgment had little merit, it was not brought in bad faith or even unreasonably. Partial indemnity costs will suffice.

[10] Second, I agree that James’ impecuniosity is a factor to consider in deciding the quantum of costs.

[11] There is no merit to the suggestion that the Costs Outline delivered on behalf of the Defendants is “clearly over the top”. There is equally no merit to the suggestion that costs be paid in the cause.

[12] In the circumstances, I think it is fair, just, reasonable, and proportionate to make an award of costs in favour of the successful Defendants that represents partial indemnity but, on account of James’ impecuniosity, is discounted to some degree.

[13] I agree with the general proposition that there are instances where a “balance must be struck between on the one hand the rights of an indigent litigant to have his or her day in court without concern that access thereto will be denied because of unpaid interlocutory costs orders and on the other hand the rights of other litigants not to be faced with litigants who [use] impecuniosity as a shield…”. Burrell v. Peel (Regional Municipality) Police Services Board, [2007] O.J. No. 4232 (S.C.J., Master Dash).

[14] The Defendants’ partial indemnity figure is $34,417.02. I will exercise my discretion to reduce that to an even $30,000.00.

[15] Costs ordered in favour of the Defendants in the total all-inclusive amount of $30,000.00, payable by James within thirty days of the date of this Endorsement.

Conlan J. Date: July 2, 2019