COURT FILE NO.: 58915/19

DATE: 20210805

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LLOYD PATRICK DETTERING, Plaintiff

AND:

ST. CATHARINE TRANSIT COMMISSION, COMMISSIONAIRES HAMILTON, and REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, Defendants

BEFORE: Justice Robert Reid

COUNSEL: Plaintiff - self-represented

J. Matunin-Brown, Counsel, for the Defendant St. Catharine Transit Commission

T. Zdravkovic, Counsel, for the Defendant Commissionaires Hamilton

M. Cruickshank, Counsel, for the Defendant Regional Municipality of Niagara Police Services Board

HEARD: March 3, 2021

Costs submissions due July 19, 2021

decision on COSTS OF motions

[1] All three of the defendants asked the court to end Mr. Dettering’s lawsuit against them. They said that there is no need to have a trial because even if the things that Mr. Dettering says happened did happen, it would not be enough for him to win the case.

[2] I agreed with them. The court action was ended by my decision of June 7, 2021 (2021 ONSC 4100).

[3] When someone wins in court, they may ask the court to order that some or all of their legal fees be paid by the one who lost. In part, this is to make sure that people who come to court – either to make a claim or to defend against a claim – behave properly. People cannot come to court and make claims that are not well-founded. If they do so, they risk having to pay costs to the other parties.

[4] The three defendants want Mr. Dettering to pay some of their lawyers’ fees and their out-of-pocket costs. They gave their reasons within the time required in my decision. Mr. Dettering did not give me any response.

What the defendants want and why:

St. Catharine Transit Commission

[5] The lawyers for the Commission want Mr. Dettering to pay $15,175.07, mainly because they were successful in striking out the claim. The total comes from the lawyers’ hourly rates times the number of hours they spent on the case plus HST and out-of-pocket costs.

[6] They say the amount is fair and reasonable and within the range that Mr. Dettering should have expected to pay if he was unsuccessful. He has lost many other cases and knows what costs may be incurred.

Regional Municipality of Niagara Police Services Board:

[7] The lawyers for the Police Service Board also want Mr. Dettering to pay their legal costs. They say that the motion was necessary and important, and that the claim by Mr. Dettering was doomed from the start. There was no basis for it.

[8] They say that Mr. Dettering should be penalized for starting court claims that have no chance of success.

[9] The Police Services Board wants Mr. Dettering to pay a total of $3,333.09 including HST and out-of-pocket costs. The total is not as high as the Transit Commission’s claim because the Board used lawyers who work for the Regional Municipality of Niagara, rather than a private law firm and because they spent fewer hours preparing for the motion.

Commissionaires Hamilton:

[10] The lawyers for Commissionaires Hamilton want Mr. Dettering to pay a total of $6,736.81 including HST and out-of-pocket costs. They adopt the same reasons used by the others.

Discussion and Conclusion:

[11] It is important in our system of law that people can come to court (with or without lawyers), to settle disputes when they can’t solve the problems themselves. The court needs to be open and easy to reach.

[12] It is also important that the court not be used for cases that have no chance of success. Those cases waste the court’s time, which time could be used for others who really need the court’s help. Cases of that type are unfair to those being sued, who have to spend their time and money to defend themselves.

[13] Losing a lawsuit often means that the loser must contribute to the legal costs of the other side. In part, that is to reduce the burden on the successful party. In part, it is to remind the loser that only proper cases should come to court or else there will be a financial cost.

[14] Costs can be calculated in different ways. They may result in the winner getting back all its costs from the loser (“full indemnity costs”). This may happen when the court wants to penalize the loser for the way that case has been handled. Costs may be calculated to give the winner most, but not all its costs (“substantial indemnity costs”). This also includes a sense that the loser is being penalized. Most often, costs are calculated to give the winner a portion of its costs (“partial indemnity”) to ensure that the loser contributes, but also acknowledging that some burden is born even by the successful one as part of the justice system.

[15] Rule 57(1) of the Rules of Civil Procedure tells the court what to look for in making a costs award. Success is an important factor. So is the way the person has conducted the case. Is the amount claimed within the range that the person making the claim expected might occur if he lost? Are the lawyers’ rates and time spent reasonable? The importance of the issues is also a factor as is the complexity of the case.

[16] Mr. Dettering lost the case. There was never a chance of success. He admitted as much, at least as far as Commissionaires Hamilton was concerned. Mr. Dettering has been to court unsuccessfully many times, and he knows that there can be negative costs results. He is not shielded from a costs order just because he is not represented by a lawyer. He was angry with the way he was treated by the Transit Commission and I think he just wanted to teach everyone a lesson by forcing them to respond to his claim.

[17] I assume the matter was of importance to Mr. Dettering or else he would never have started the claim. It was certainly of importance to each of the three defendants, who were convinced that they had done nothing wrong.

[18] The matter came through the court system in the usual way. It was just at the beginning of the process when the defendants made their motions.

[19] Mr. Dettering claimed assault, breach of contract, defamation, nuisance, and public mischief. He did not say which defendant the individual claims were against. There was some complexity created for the defendants in having to respond to the several claims made against them.

[20] Although Mr. Dettering lost the claim, there is no reason that he should be penalized in costs beyond the usual partial indemnity scale.

[21] As to the rates charged and time expended, I have reviewed the Bills of Costs. According to those documents, the lawyers for St. Catharine Transit spent about 53 hours, and a rate of $275 per hour plus HST and out-of-pocket costs. The Commissionaires Hamilton lawyers spent about 39.6 hours at a rate of $139 per hour plus HST and out-of-pocket costs. The Police Services Board lawyers spend 12.5 hours at a rate of $250 per hour plus HST and out-of-pocket costs.

[22] The Police Services Board used lawyers working for the Regional Municipality of Niagara. Costs can still be awarded. Even though the lawyers are paid as part of a government budget, unnecessary expenses should be reimbursed. Their hourly rates and time spent were reasonable.

[23] I find that both the rates and time spent by counsel for Commissionaires Hamilton were reasonable. Since counsel was less senior than lawyers for the other parties, she billed at a lower hourly rate, which is appropriate.

[24] It appears that the claim by the Transit Commission’s lawyers is for costs on a substantial indemnity scale. I have already indicated that the more modest partial indemnity level is sufficient. Therefore, the hourly rate is reduced by 33 percent to $181.50. It is not possible to say that the time spent by the lawyers for the Transit Commission was excessive, even though it was higher than that of the others.

[25] I must make a costs award that is fair and reasonable, in keeping with the principles I have set out above. As a result, there will be an order that Mr. Dettering pay costs to the others including HST and disbursements as follows:

a. To the St. Catharine Transit Commission: $11,884.36;

b. To Commissionaires Hamilton: $6,736.81; and

c. To Regional Municipality of Niagara Police Services Board: $3,333.09.

[26] Costs are payable within 60 days of this date.

Reid J.

Date: August 5 2021