Court File and Parties

COURT FILE NO.: CV-18-604990 DATE: 20190823

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Randall J. Barrs, Plaintiff AND: Halton Regional Police Service, Sergeant Jeff Leder, D.C. Colin Kilfeather, D.C. Jeff Knapp, D.C. Jason Caron, D.C. Chris Lee, Grayson Randall Delong, John Doe and John Doe 2, Defendants

BEFORE: Cavanagh J.

COUNSEL: Patrick J. Ducharme, for the Plaintiff and J. Randall Barrs, acting in person Douglas O. Smith and Samantha Bonanno, for the Defendants Halton Regional Police Services Board, Sergeant Jeff Leder, D.C. Colin Kilfeather, D.C. Jeff Knapp, D.C. Jason Caron and D.C. Chris Lee

HEARD: In writing

COSTS ENDORSEMENT

[1] In my decision released on July 22, 2019, I granted the defendants’ motion for summary judgment and dismissed the action. This is my decision on costs.

[2] The defendants seek costs on a partial indemnity scale in the amount of $38,210 for fees and $1,466.98 for disbursements for a total of $44,644.28.

[3] Although the plaintiff was represented by counsel in this action and on the motion for summary judgment, responding submissions were made by the plaintiff himself. The plaintiff submits:

(a) The evidentiary record before me was incomplete because, among other things, transcripts of the preliminary inquiry in the criminal proceedings against Mr. Delong were not included, and I did not consider the plaintiff’s evidence or other evidence from witnesses who testified at the preliminary inquiry. As a result, the plaintiff submits, the process on the motion for summary judgment was unfair and did not allow me to make the necessary findings of fact.

(b) The amount claimed for costs is excessive. The plaintiff submits that to award costs would add insult to injury and, if costs are awarded, they should not exceed something in the range of $2,500.

[4] With respect to the plaintiff’s submissions concerning the evidentiary record, the plaintiff was represented by experienced counsel on the motion. The plaintiff’s counsel cross-examined the deponents of affidavits delivered by the defendants. The plaintiff did not file any responding evidence. In his factum filed for the motion, the plaintiff accepted the facts set out in the defendants’ factum, with some additional facts. The plaintiff made the decision not to deliver responding affidavit evidence, and it is too late to argue that more evidence should have been filed.

[5] With respect to the quantum of costs, the defendants filed a bill of costs for the action in which they claim fees (except counsel fee) in the amount of $35,910, counsel fee of $2,300, HST on fees of $4,967.30, and disbursements (inclusive of HST) in the amount of $1,466.98. The services were broken down into categories described as pleadings, ongoing investigation and cross-examinations, and preparation for the motion for summary judgment. The defendants’ counsel provided supporting time records. The defendants used a partial indemnity hourly rate of $350 for senior counsel (called to the bar in 1995) and an hourly rate of $225 for second counsel (called to the bar in 2017). I am satisfied that these rates are reasonable for this case.

[6] After the hearing of the motion for summary judgment, the plaintiff’s counsel also provided a bill of costs for the action, including the defendants’ motion for summary judgment, upon which the plaintiff would have relied had he been successful on the motion. This bill of costs included fees (except counsel fee) in the amount of $35,893.75, counsel fee of $1,400, disbursements of $6,572.24 and applicable HST on fees. The total amount claimed is $48,714.18.

[7] I am satisfied that the amount claimed by the defendants for costs is reasonable and proportionate, and that it is within a range of costs that the plaintiff would reasonably expect to pay if he was unsuccessful on the motion for summary judgment.

[8] I fix costs on a partial indemnity scale in the amount of $44,644.28 to be paid by the plaintiff to the defendants.

Cavanagh J.

Date: August 23, 2019