COURT FILE NO.: CV-05-011362
DATE: 2021 07 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES PERREAULT
Self-Represented
Plaintiff
- and -
REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
E. Mazzuca, for the Defendant
Defendant
HEARD: In writing. Written submissions completed June 23, 2021.
COSTS ENDORSEMENT
LEMAY J
[1] On March 31st, 2021 I released my reasons for judgment in this matter (2021 ONSC 2256). In that decision, I dismissed all of the claims that had been brought by the Plaintiff, Mr. James Perreault, against the Defendant, Peel Regional Police.
[2] In my reasons, I invited the parties to provide costs submissions by April 30th, 2021 and reply submissions by May 21st, 2021. I received costs submissions from both sides in accordance with my deadlines. I did not receive any reply submissions.
[3] As a result, my judicial assistant e-mailed both Mr. Mazzuca and Mr. Perreault. Mr. Mazzuca advised that he was not planning to provide any further submissions. Mr. Perreault provided brief additional submissions. I then began to prepare my reasons. While preparing my reasons, some decisions on Rule 57.01(2) that might be relevant to this matter came to my attention. I identified those decisions to the parties and permitted each side to provide additional submissions. I have now reviewed those submissions as well.
[4] Having reviewed all these submissions, I am now required to fix the costs for this trial.
Background
[5] Before fixing the costs for this trial, it is necessary to understand some of the procedural history in this long and difficult action as well as the amounts claimed. The action was commenced in 2005, and claimed $5 million for assault, battery and harassment as well as $500,000.00 for punitive damages.
[6] The Plaintiff acted for himself at trial. However, he was represented up until 2017 by two lawyers. He was also assisted by his then-girlfriend Wonita Duffy in the presentation of his case at trial. The original claim was initiated by Mr. Winston Mattis. From November of 2008 through until a pre-trial in 2017, Mr. Perreault was represented by Hedy Epstein.
[7] Discoveries were held in this matter twice. The court reporter lost the original recordings for the examinations, requiring the examinations to be re-conducted. Following the second examinations in 2009, the action went dormant until 2013.
[8] In November of 2013, a motion was brought by the Defendant seeking to dismiss the Plaintiff's claim for delay or, in the alternative, to obtain answers to undertakings. Ultimately an order was issued by Belleghen J. requiring the undertakings to be answered, expert reports to be delivered and the matter to be set down for trial. The Plaintiff was also required to pay costs of $2,000.00
[9] The Plaintiff did not comply with this order, and a further Order was obtained from Trimble J. in similar terms to the order given by Belleghen J. The action was then struck off the trial list in 2014 for failure to comply with these orders. The Plaintiff then delivered expert reports and answers to undertakings and the action was reinstated to the trial list on July 9th, 2015.
[10] The matter then proceeded to a pre-trial in September of 2016. At that time, the issue agenda for the trial was set by Emery J. Ultimately, the matter came before me for trial in May of 2018. The trial spanned 27 days of Court time over the next approximately two years. The parties then completed written submissions and I provided my ruling dismissing the action.
[11] However, in my reasons for judgment, I addressed an incident from June of 2003. In my factual findings on that incident, I found that Det. David Luce, who was then a Peel Police officer, planted evidence (a parachute knife) and falsely claimed that Mr. Perreault had been in possession of that evidence on the evening in question. That planted evidence led to a charge against Mr. Perreault.
[12] As I described it in my reasons (at para. 190) "this is a very strong conclusion to reach." As a result, I concluded my reasons by advising the Peel Police that, if they were seeking costs, they should address the issue of whether this finding should result in a downward adjustment in the costs that they were entitled to recover.
[13] With that background in mind, I now turn to the positions of the parties.
Positions of the Parties
[14] The Peel Police argue that costs on a substantial indemnity basis could be ordered against Mr. Perreault based on his conduct. During the trial Mr. Perreault made numerous disparaging and inappropriate comments about Mr. Mazzuca, counsel for the Peel Police. These types of uncivil comments have, when taken together with other conduct, resulted in substantial indemnity costs being awarded in extreme cases. See Schaer v. Barrie Yacht Club 2003 CarswellOnt 2531 (S.C.J.)
[15] However, the Peel Police acknowledge my findings respecting Det. Luce and are only seeking costs on a partial indemnity scale. The amount of costs being sought by the Peel Police on a partial indemnity scale are $434,377.49 inclusive of HST and disbursements. These are significant costs and are sought on the following grounds:
a) The Peel Police was the successful party at trial and costs are generally awarded to the successful party.
b) The length of the trial was well-known to the Plaintiff before the trial commenced. As a result, the Plaintiff should have been aware of the costs consequences of proceeding.
c) The Courts have regularly awarded costs on a partial indemnity basis against self-represented litigants.
d) Mr. Perreault engaged in conduct that tended to lengthen the trial.
e) Both the rates charged and the time spent by counsel were reasonable.
[16] Mr. Perreault argues that he should receive costs of approximately $100,000.00, including the costs he paid to his first two lawyers (Mr. Mattis and Ms. Epstein) as well as costs that he paid to his criminal counsel, Mr. Randy Norris and a retainer that he paid to Mr. Morris Manning in 2005. In the alternative, Mr. Perreault argues that he should not be required to pay any costs. Although his claim was dismissed, Mr. Perreault argues that my findings in respect of Det. Luce provided a "good faith basis for the Plaintiff to bring the matter."
Offers Made by the Parties
[17] Each party made one offer that I am aware of. The Peel Police served an Offer to Settle on June 3rd, 2008 (ten years before trial), in which they offered to dismiss the action without costs if the offer was accepted at any time before July 3rd, 2008. After July 3rd, 2008, the offer required the Plaintiff to pay partial indemnity costs to be agreed upon or assessed.
[18] Mr. Perreault made an Offer to Settle on April 11th, 2017. That offer was for $1.7 million, an apology from every Peel Police officer involved in the case and payment of his lawyer's fees. The offer ends with the statement that "I don't really care if you settle this. I just want justice."
[19] Neither party has claimed that the provisions of Rule 49 of the Rules of Civil Procedure apply to their offers. As a result, I will analyze the offers as part of my general discussion on the costs principles that apply to this case.
Costs Principles
[20] Rule 57.01(1) sets out the principles that Courts are required to apply when assessing costs. In this case, the most important principles are:
a) The result in the proceeding
b) The offers to settle.
c) The conduct of any party that tended to lengthen or shorten the duration of the proceeding.
d) The principle of indemnity, including the experience, hourly rates and time spent by the lawyer for the party seeking costs.
[21] In assessing these costs, I also note that there is nothing that prevents the Court from awarding costs against a successful party in a proper case. See Rule 57.01(2).
[22] In fixing costs, the Court should fix an amount that is fair and reasonable rather than conducting an exact measure of the amount spent by the successful party. See Boucher v. Public Accountants Council for the Province of Ontario (2004) 71 O.R. (3d) 291 2004 CanLII 14579 at para. 24.
The Result in the Proceeding
[23] The Peel Police were successful in having Mr. Perreault's claim dismissed. Costs usually follow the result in an action, and the fact that Mr. Perreault is a self-represented litigant does not justify a departure from the general rule. See Ranger v. Penterman 2011 ONCA 496.
[24] However, the success of the Peel Regional Police is clouded by my findings in respect of Det. Luce. I cannot overstate the importance of those findings. Part of the reason for this litigation was the fact that Mr. Perreault was improperly charged with possession of a knife. This was not a case where the very high criminal burden of proof was not met. It was a case in which a police officer, a member of the Defendant, fabricated evidence of a crime.
[25] Counsel for the Peel Police accepts that the finding against Det. Luce is serious but argues that these findings had little or no bearing on the ultimate issues to be determined at trial. I disagree. Part of the reason that this action was before the Courts in the first place was because of the charges that were proffered by Det. Luce.
[26] I acknowledge that the incident in June of 2003 was part of the narrative and not a focus of the claims that Mr. Perreault brought. However, as Mr. Perreault notes in his submissions, there was a good faith basis for him to pursue an action against the Peel Police. In addition, when the whole history between Mr. Perreault and the Peel Police is considered, the events of June 2003 are a significant milestone in the development of Mr. Perreault's animosity towards the Peel Police. Therefore, there should be a reduction in the amount of costs that the Peel Police are otherwise entitled to recover.
[27] The question is what the reduction should be? Counsel for the Peel Police suggests that the reduction should be on the scale of costs that are awarded, from substantial indemnity costs to partial indemnity costs. I disagree for two reasons.
[28] First, Mr. Perreault's conduct towards Mr. Mazzuca during the trial was concerning to me. Mr. Perreault did make scurrilous allegations about Mr. Mazzuca. I set out my concerns about those allegations starting at paragraph 393 of my reasons and I will repeat my conclusion that none of the negative comments that were directed at Mr. Mazzuca were justified.
[29] However, these allegations do not rise to the level of the conduct discussed by Eberhard J. in Barrie Yacht Club. In that case, Eberhard J. described the conduct of the self-represented litigant as follows (at paras. 18 and 19):
- Finally, in relation to whether any step in the proceeding was: (i) improper, vexatious or unnecessary; or (ii) taken through negligence, mistake or excessive caution; I consider whether the rule should be relaxed in favour of a self-represented litigant in order to preserve adherence to the principal that all citizens should have equal access to justice. Frankly, for many self represented litigants I would forbear from ordering costs, particularly an order designed to express the disapproval of the court, because it is patent that they are unrepresented out of finacial [sic] need, they are conscientiously trying to comply with complicated procedures and they put forward the gist of their issue sufficiently to allow fair adjudication to proceed. Such a self-represented litigant does not deserve disapproval but patience.
19 Here the situation was the opposite. The Appellant/Plaintiff proceeded with an arrogance that left this court much challenged to respond without adopting the same incivility. This is not to say that the Appellant/Plaintiff was impolite to me personally in the courtroom. The Appellant/Plaintiff was resoundingly impolite to the Respondent/Defendant in the courtroom. I had to exercise strict control of the proceedings. I had to take personal control of any dealings with court staff. No progress was possible on the simplest step without the authority of a court order or direction. It was the worst example I have seen of a litigator demanding the time, attention and tolerance of the administration of justice while failing to follow its procedures, refusing to engage in its convention of civility and refusing any legal advisement but his own interpretation of unrecognized legal resources.
[30] The conduct of Mr. Perreault in this case does not rise to this level. Mr. Perreault did raise irrelevant issues and he did make inappropriate and unjustified comments about Mr. Mazzuca. Those actions did not make it impossible for the Peel Police to advance the Court case and they did not result in me facing the same difficulties in dealing with Mr. Perreault that my colleague faced in Barrie Yacht Club. Mr. Perreault's conduct does not rise to the level of conduct that would attract an award of substantial indemnity costs.
[31] Second, even if Mr. Perreault's conduct did rise to a level that should attract substantial indemnity costs against him, I would still decline to award them on the facts of this case. At trial, the Peel Police led expert evidence from Dr. Barry Gilbert. Based on that expert evidence, I accepted the contention of the Peel Police that Mr. Perreault had a personality disorder. That personality disorder caused Mr. Perreault to be very focused on alleged wrongdoings of both the Peel Police and of police officers more generally.
[32] Mr. Perreault's personality disorder does not excuse his inappropriate remarks to Mr. Mazzuca during the trial. It does explain them, however. Having accepted that Mr. Perreault has a medically diagnosed personality disorder, the conduct that flows from that personality disorder should not result in an elevated order of costs.
[33] Having found that substantial indemnity costs would not have been awarded in this case in any event, it follows that an award of full partial indemnity costs to the Peel Police would not account in any way for Det. Luce's conduct. The Peel Police's submission in this regard is rejected.
[34] The Peel Police also argue, in the alternative, that a limited deduction of approximately twenty-eight hours of time should be made from the hours that the Peel Police are claiming. This time is the amount of time spent preparing Det. Luce and examining him at trial. I also reject this submission.
[35] Rule 57.01(2) states that "the fact that a party is successful in a proceeding or in a step in a proceeding does not prevent the court from awarding costs against the party in a proper case."
[36] In David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. 2008 ONCA 703 (2008) 93 O.R. (3d) 257, the Court of Appeal noted (at para. 32) that Courts will generally exercise their discretion to award costs against a successful party only in exceptional circumstances. Those exceptional circumstances include misconduct on the part of the successful party.
[37] In Royal Bank of Canada v. Azkia et. al 2019 ONSC 5894, aff'd 2021 ONCA 89, Koehnen J. of this Court stated (at paras 82 to 86):
[82] One accepted ground for awarding costs against a successful party is to sanction misconduct which might bring the administration of justice into disrepute: Bogoroch & Associates v. Sternberg, 2007 CanLII 41889 at paras. 19-20 (Div. Ct.); Polowin v. Dominion of Canada General Insurance, 2008 ONCA 703, 2008 ONCA703 at para. 32.
[83] For a party to mislead the court as seriously as RBC did and suffer no consequences would bring the administration of justice into disrepute. Failing to impose a consequence only incentivizes parties in the future to breach the obligation.
[84] Denying RBC its costs in only the proceeding in which it sought the certificate of pending litigation does not reflect with sufficient force the disapprobation the conduct warrants. Even the full cost consequences here are of trifling significance to RBC or its external counsel. In addition, each of the other two actions did relate, in part, to unsecured loans in respect of which the certificates of pending litigation would have been of assistance to the bank.
[85] The bank submits that it should not have costs awarded against it. It relies on TD Bank v. Yousefie, 2014 ONSC 561 at para. 81 for the proposition that a moving party on an ex parte motion cannot be expected to anticipate every possible defence and to disclose those to the court. While I agree with that proposition, that is not the situation here. The bank is not being criticized because it failed to disclose every possible defence. It disclosed none. Moreover, it presented facts to the court in a misleading manner.
[86] The bank further submits that it should not be punished for omissions of its counsel and that it acted in good faith. The bank is a sophisticated, institutional litigant. There is no unfairness in imposing on the bank the ordinary assumption that all are presumed to know the law. In my view the failure to make full and fair disclosure without a sanction that stings, would bring the administration of justice into disrepute. It would risk turning the obligation into a hollow one which would only encourage its breach in the future.
[38] I agree with this analysis. A successful party can have its costs award substantially reduced, be deprived of costs or be required to pay the other side's costs where the party engages in conduct that would bring the administration of justice into disrepute. Further, the sanction that should be imposed is one that should sting. The Court has an obligation to protect its procedures.
[39] I view Det. Luce's conduct as being "conduct that would bring the administration of justice into disrepute." On a balance of probabilities, I have found that Det. Luce fabricated evidence that Mr. Perreault had a knife in his possession on the night of June 25th, 2003. Det. Luce then maintained that evidence throughout the police investigation, the criminal proceeding and in his testimony before me. Courts must depend on police officers to be truthful. Det. Luce was not. This is conduct that brings the administration of justice into disrepute.
[40] The question then arises as to whether that conduct should attach to the Peel Police. On the facts of this case, I am of the view that it should. Det. Luce was employed by the Peel Police at the time of the incident and Det. Luce's reporting and evidence was relied upon by the Peel Police throughout this proceeding. Further, Mr. Perreault's arrest and the charges on June 25th, 2003 were a significant part of the string of events that led to this lawsuit. Without this arrest, there would have been no breach of probation in October of 2004.
[41] The Peel Police have pointed to Steen v. Islamic Republic of Iran 2011 ONSC 6464 and De Facendis v. Toronto Parking Authority 2021 ONSC 2721 as examples of cases where the conduct of the party justified either an award of costs against that party or an award of no costs However, conduct of either a non-party or of a different party was not used to justify a reduction in the costs payable to the successful party.
[42] The Toronto Parking Authority decision in particular is instructive. In that case, the Plaintiff was an employee who was suing both the Authority and her manager for sexual assault. The Defendants had the Plaintiff's action dismissed on the basis that the Plaintiff was covered by a collective agreement. The Court in that case awarded costs against the manager in spite of the dismissal because of his conduct. However, the Court also awarded costs in favour of the Authority.
[43] In this case, the Peel Police argue that Det. Luce is not a party and that, therefore, his conduct should not prevent the Peel Police from receiving indemnity for their costs. I disagree. Although Det. Luce was not a party to this action, his evidence was important to the Peel Police's assertions that Mr. Perreault had no basis for his belief that the Peel Police were harassing him. Further, charges were proffered on the basis of Det. Luce's evidence. To allow the Peel Police to recover all their partial indemnity costs on the facts of this case would bring the administration of justice into disrepute.
[44] A sanction that stings must flow from Det. Luce's conduct. That sanction is a very substantial reduction in the costs that the Peel Police would otherwise be entitled to recover as a result of their success in this matter. However, I am required to review other factors and, as I discuss below, my review of those factors does not persuade me that Peel Police should either be completely deprived of costs or should be required to pay Mr. Perreault's costs.
The Offers to Settle
[45] I have set the offers to settle out at paragraphs 17 and 18. Those offers demonstrate both that Mr. Perreault had unreasonable expectations for the resolution of this matter and that he had no interest in settling it. This is a hard line position that would normally support an enhanced award of costs.
[46] This brings me to the Peel Police's offer of a dismissal without costs. Superficially, they achieved at least that result at trial. However, Mr. Perreault did achieve a finding that Det. Luce had planted evidence on him in June of 2003. In the absence of a trial, that finding would not have been made.
[47] Overall, when I consider the offers to settle, they are a factor that favours a modest award of costs to the Peel Police.
The Conduct of the Parties
[48] I have already discussed my concerns with Det. Luce, and I will not repeat them. Other than that issue, the conduct of the Peel Police during the trial does not raise any concerns and did not tend to lengthen the course of the trial in any significant way. I will also note, as I did in my reasons for decision (at paras. 393 to 398), that Mr. Mazzuca acted in a courteous, respectful and professional way throughout the case.
[49] There are three concerns about Mr. Perreault's conduct that have been raised by the police:
a) Mr. Perreault regularly raised unexpected issues at trial.
b) Mr. Perreault regularly raised post-2005 issues at trial.
c) Mr. Perreault persistently sought to introduce evidence of police misconduct more generally throughout the trial.
[50] I will consider each issue in turn.
[51] On the question of unexpected issues, the Peel Police point to the mid-trial motion that was required to deal with the search warrant and the confidential documentation. The Peel Police argue that they were not expecting to deal with this issue until it was raised at trial. There are two problems with the Peel Police's position on this issue. First, part of the reason for the motion was the fact that the Peel Police had disclosed information that was covered by confidential informant privilege. Second, I rejected the Peel Police's position on whether the issue of the warrant was part of the litigation in a previous ruling (see 2018 ONSC 6660).
[52] This brings me to the post-2005 issues. Mr. Perreault regularly raised allegations that, after 2005, the Peel Police had been wiretapping his phone, following Ms. Duffy and her daughter during the trial and conducting surveillance of his home. These issues were all generally irrelevant to the matters that I had to determine and they unnecessarily consumed trial time.
[53] Finally, there is the issue of police misconduct more generally. As I noted in my reasons (see paragraph 35 and following of those reasons), I advised Mr. Perreault at the opening of trial that I would only be considering the facts of his case. I would not be conducting any larger inquiry into misconduct on either the part of the Peel Police or on alleged police misconduct more generally. In spite of that direction at the outset of trial, Mr. Perreault regularly sought to return to the issue of police misconduct, which also lengthened the trial.
[54] Mr. Perreault's focus on issues that were irrelevant to the questions that had to be determined at trial unnecessarily lengthened the trial and unnecessarily increased the costs that the Peel Police were required to expend on the trial. This is a factor that supports an award of some costs to the Peel Police irrespective of my concerns about Det. Luce's conduct.
[55] Finally, I should note that there were also the missing discovery transcripts from the first discovery. Mr. Mazzuca has candidly acknowledged that these lost discovery transcripts were not the fault of either party and he has not claimed any costs for those discoveries.
The Principle of Indemnity
[56] This factor requires me to consider the time spent and the rates charged by counsel for the Peel Police. I have reviewed the bill of costs submitted by the Defendant. It does not provide detailed docket entries. It is divided up into the time spent on categories of work. Those categories include pleadings, Affidavits of Documents, preparation for the pretrial, witness preparation and the like. They provide me with a sense of what work was done in each area.
[57] I have reviewed the bill of costs in detail and have concluded that both the time spent by counsel for the Peel Police and the rates charged are reasonable for an action of this nature.
[58] I start with the time spent. As I have noted, this was a 27-day trial that was held over two years for an action that took a decade and a half to make its way through the Court system. There were more than fifty exhibits. The facts were so complicated that I directed that transcripts be produced for everyone's use. These transcripts were prepared after every set of sittings and were available as the trial went along.
[59] In addition, the documents were difficult to organize. I acknowledge that Mr. Perreault was self-represented. However, the documents were not organized in a way that would allow Mr. Mazzuca and his junior to find them easily when Mr. Perreault referred to them. There were numerous occasions at trial where Mr. Perreault would produce something that he wished to enter into evidence and counsel for the Peel Police would have to scramble to determine whether the document had been produced previously.
[60] Finally, the allegations were almost fifteen years old at the time the trial started in 2018. This is also a factor that made it more difficult for counsel to marshal the evidence in this case.
[61] This brings me to the rates. As Mr. Mazzuca notes in his submissions, the partial indemnity rates are both very reasonable and well below the maximums that could be claimed by counsel. I see no reason to question those rates.
[62] In the result, I am of the view that the quantum of partial indemnity costs claimed by the Peel Police are reasonable for an action of this length and nature. However, as I have set out elsewhere, the fact that the amount sought is reasonable for the amount of work done on the file is not the only factor I have to consider in this case. There are other issues that require a significant reduction in the amount of costs the Peel Police should be able to recover.
Conclusion
[63] When I consider all of the factors in this case, I am of the view that the Peel Police should receive a very modest sum of costs for this case. The conduct of Det. Luce brings the administration of justice into disrepute. On its own, it is a factor that should result in either a very significant reduction in the costs payable to Peel Police or the complete elimination of any costs award.
[64] However, I must also be mindful of the conduct of Mr. Perreault. In this regard, I am particularly concerned about the unnecessary lengthening of the trial as a result of both Mr. Perreault's repeated focus on issues that were not directly relevant to the trial and of Mr. Perreault's attempts to introduce evidence that had not been produced prior to trial. I am of the view that the Peel Police are entitled to some modest costs compensation for this conduct.
[65] For the foregoing reasons, I have concluded that the Peel Police should be entitled to costs in the sum of $50,000.00 inclusive of HST and disbursements. This amount is over and above any other costs awards that have been ordered by the Court and not yet paid by Mr. Perreault.
[66] This brings me to the length of time that Mr. Perreault should have to pay those costs. Generally, costs are payable within thirty (30) days of the Order being made. In this case, however, I am of the view that Mr. Perreault should be provided with additional time to pay the costs that I have ordered. As a result, Mr. Perreault shall have twelve (12) months to pay the costs that I have ordered.
LEMAY J
Released: July 6, 2021
COURT FILE NO.: CV-05-011362
DATE: 2021 07 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES PERREAULT
Plaintiff
- and -
REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Defendant
COSTS ENDORSEMENT
LEMAY J
Released: July 6, 2021