COURT FILE NO.: 13-7648 (Welland File)
DATE: 2019-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason Leo Gorman
Plaintiff
- and -
Niagara Regional Police Service, Regional Municipality of Niagara Police Services Board, Sgt. Kenneth McGregor, Sgt. Scobie, Sgt. Gurney, Cst. Cummings, Cst. Smits, and Cst. Dool
Defendants
Counsel:
Margaret Hoy, for the Plaintiff
David Boghosian and Mai Nguyen, for the Defendants
COSTS RULING
P. R. SWEENY J.
Introduction
[1] After a 16-day jury trial, the plaintiff’s claim was dismissed. The jury found no liability on the defendants. The parties were not able to agree on costs and submissions were received from the defendants on November 26, 2018, and the plaintiff on December 17, 2018.
[2] The defendants seek their costs on a combined partial indemnity and substantial indemnity basis in the total amount of $296,602.70, inclusive of disbursements plus costs of $2,000.00, associated with preparing the cost submissions. The plaintiff asserts that the costs should be in the range of $50,000.00.
[3] With respect to the determination of the determination of costs, Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, sets out various factors which the court may consider in awarding costs, including the result in the proceeding and any offers to settle made in writing; the principle of indemnity; the amount of costs the unsuccessful party could reasonably expect to pay; complexity of the proceedings; and the importance of the issues.
[4] The defendants assert they are entitled to costs on a substantial indemnity basis from February 1, 2016, because they served an offer to settle that the parties consent to a dismissal of the action without costs and the plaintiff execute a full and final release. In the alternative, the defendants assert that they are entitled to substantial indemnity costs based on unfounded allegations attacking the character and integrity of Constable Scobie.
[5] The cost consequences of an offer to settle made by a defendant as set out in Rule 49.10(2) of the Rules of Civil Procedure do not specifically provide that a defendant is entitled to substantial indemnity costs if, despite an offer, the plaintiff is unsuccessful in the claim. Although there are cases where the court has determined that it is appropriate to exercise judicial discretion to do so, in my view, this is not such a case. The plaintiff was entitled to have his action tried. The offer to settle does not give rise to substantial costs, and I decline to exercise any discretion I may have in that regard.
[6] With respect to the issue of the allegations against Constable Scobie, the plaintiff alleged certain conduct on the part of Constable Scobie that was an intentional tort—assault. Punitive damages were claimed on the basis of Constable Scobie’s alleged conduct. Any allegation of intentional conduct, such as assault against a police officer, is an attack on the character and integrity of a police officer. I am satisfied that the mere allegation of intentional conduct which could give rise to serious personal injury against a police officer does not warrant substantial indemnity costs be awarded when the officer is successful in defending the claim. In the circumstances, I am not prepared to exercise any discretion to award the defendants substantial indemnity costs on the basis of the allegations made in the statement of claim.
[7] In my view, the defendants are entitled to their costs on a partial indemnity basis. I do not see this case as an access to justice issue. The plaintiff pursued the action seeking damages. He was unsuccessful. There is no reason to depart from the general principle that the successful party is entitled to costs. The plaintiff’s assertion that cost should be limited to $50,000 appears not to be based on any reasonable expectation of the plaintiff but rather an artificial number not based on the principles of indemnity or necessarily consistent with the factors to consider in awarding costs.
[8] I accept that Mr. Boghosian’s full indemnity rate of $475.00 is reasonable for this case as are the hourly rates charged by the other lawyers and clerks involved in this matter. I note that, contrary to the plaintiff’s submissions, Mr. Boghosian is not an in-house lawyer with the Niagara Regional Police Service and operates an independent firm. Partial indemnity rate is generally 60% of the substantial indemnity rate.
[9] The trial was not particularly complex, and no independent experts were retained, aside from the plaintiff’s medical expert, Dr. Rathbone. While Ms. Nguyen provided assistance, it was unnecessary to have two counsel to defend the action at trial.
[10] I have reviewed the time spent as disclosed in the time dockets the defendants provided.
[11] In my view, it is not appropriate on a partial indemnity basis that a party pay travel time. Accordingly, travelling to and from St. Catharines for discoveries and Welland for the trial will not be included.
[12] As I said, in my view, it is unnecessary for there to be two counsel to defend the action. Accordingly, there will be a significant deduction for Ms. Nguyen’s time. However, she did assist through the course of the trial, and I will allow some time for that assistance. I also observed that Ms. Nguyen appears to have provided a daily reporting letter to the client. In my view, that is not appropriately the plaintiff’s responsibility. Therefore, I have deducted the time claimed with respect to that item.
[13] In reviewing the total time expended, I am satisfied that appropriate partial indemnity fees to be payable by the plaintiff in this matter are $100,000.00 plus HST. With respect to the disbursements, I decline to allow disbursements for travel and parking and accordingly fix the total disbursements, inclusive of HST, at $14,000.00.
[14] In the result, the plaintiff shall pay the defendants the costs of defending this action fixed in the amount of $127,000.00 all-inclusive.
Sweeny J.
Released: January 29, 2019
COURT FILE NO.: 13-7648 (Welland File)
DATE: 2019-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason Leo Gorman
Plaintiff
- and -
Niagara Regional Police Service, Regional Municipality of Niagara Police Services Board, Sgt. Kenneth McGregor, Sgt. Scobie, Sgt. Gurney, Cst. Cummings, Cst. Smits, and Cst. Dool
Defendants
COSTS RULING
PRS:co
Released: January 29, 2019