Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Phillipe Bernatchez, Plaintiff
AND:
Barrie Police Services Board and Sergeant Douglas Henderson, Defendants, Moving Party
AND:
The Special Investigations Unit, Responding Non-Party
BEFORE: Justice V. Christie
COUNSEL: Aliza Karoly, Counsel for the Plaintiff (Not appearing)
Nadia Marotta, Counsel for the Defendants (Moving Party)
Andrew Jin, Counsel for the Non-Party Respondent
HEARD: By written Submissions received August 5 & 9, 2019
COSTS ENDORSEMENT
1On August 1, 2019, following a contested motion on July 30, 2019, this court ordered production to the defendants of requested SIU documents.
2The successful moving party submits that they are entitled to costs on a partial indemnity scale in the amount of $4826.85, inclusive of fees and disbursements. The responding non-party, the SIU, submits that there should be no costs of this motion, however, if costs are ordered, it is conceded that the amount sought is reasonable.
3Considering the factors in Rule 57.01, this court has determined that costs should be awarded in the amount sought for the following reasons:
The result in the proceeding – the defendants were completely successful on the motion.
The defendants have attempted to minimize the costs incurred by having work performed by an appropriately qualified lawyer and law clerk at a lower hourly rate.
The SIU has conceded that the amount sought is reasonable.
The motion was of moderate complexity requiring a review of existing legal precedents and the preparation of facta.
This court determined that it would be unfair to require the moving party to proceed to trial without having discovery of the documents sought, given the importance of this information to the litigation at issue.
The court agrees that the SIU conducted itself agreeably and civilly in responding to the motion. In fact, upon receipt of the motion, the SIU cooperated with counsel for the defendants and produced a number of records on consent. This narrowed the number of items sought when it came time for oral argument. However, this does not change the fact that the remaining items sought for production were highly relevant and important in this ligation.
The motion appears to have been opposed by the SIU based mainly on its own policies, rather than on a consideration of the importance of this information in this particular litigation. As stated in the court’s ruling on production, one of the liability issues to be determined in this action will be whether the force was reasonable, which will require an assessment of the facts leading to the use of force, and the conduct of the plaintiff will be relevant. It would appear that information sought for production related to the plaintiff’s behavior prior to his interaction with Sgt Henderson and what the civilians saw in relation to that behaviour. Clearly, the documents sought were highly relevant and important in this litigation. It is incumbent upon the SIU to consider the relevance of the particular documents sought to the particular litigation at issue, rather than simply relying on policy to refuse production.
4Costs are awarded to the defendants in the amount of $4826.85 to be payable within 30 days.
Justice V. Christie
Date: August 19, 2019