Court File and Parties

COURT FILE NO.: CV-19-615397 DATE: 20210914 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INGA HOLLAND, EARL HOLLAND, BRIAN SUDDS and JENNIFER WITTEK AND: THE TORONTO POLICE SERVICES BOARD

BEFORE: VERMETTE J.

COUNSEL: Jennifer Wittek, self-represented Michele Brady, for the Defendant

HEARD: September 14, 2021

ENDORSEMENT AS TO COSTS

[1] On August 25, 2021, I released an endorsement in this matter: (a) dismissing the Defendant’s motion for summary judgment; and (b) granting the Defendant’s motion to strike pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. The Statement of Claim was struck out in its entirety, with leave granted to the Plaintiffs to file a Fresh as Amended Statement of Claim with respect to the following causes of action: (1) intentional infliction of mental suffering; (2) intrusion upon seclusion; (3) intimidation; (4) defamation; (5) breaches of section 7 of the Charter; and (6) breaches of the Human Rights Code and section 15 of the Charter. The Plaintiffs’ claims for obstruction and negligent investigation (including breach of duty, failure to investigate, gross negligence and negligence) were struck out without leave to amend.

[2] The parties were not able to agree on costs and have delivered costs submissions and costs outlines.

Positions of the parties

[3] The Defendant seeks $5,000.00 in costs on a partial indemnity basis, inclusive of disbursements and HST. The amount sought represents approximately 50% of the Defendant’s total costs on a partial indemnity basis as reflected in its costs outline ($10,200.00). The 50% reduction is in view of the Defendant’s partial success on the motion. The Defendant submits that the amount sought is reasonable and fair in light of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure. Among other things, the Defendant submits that it was required to consider the extensive allegations in the Statement of Claim to determine whether the allegations were properly pleaded and that significant research and preparation were required in this regard.

[4] The Plaintiffs seek costs in the amount of $24,626.45. This amount includes costs that relate to matters that are not covered by this motion, such as the preparation of the Statement of Claim. The Plaintiffs’ submissions do not address the amount of costs sought by the Defendant.

Discussion

[5] While the Defendant was only partially successful on its motion, it was successful with respect to its motion to strike. The Statement of Claim that was struck was sixty-four pages in length and contained 250 paragraphs. It alleged numerous causes of action, all of which had to be addressed by the Defendant on this motion.

[6] As noted in my endorsement dated August 25, 2021 at paragraph 54:

The Statement of Claim is very long and extremely repetitive. It contains a number of factual allegations that appear to be irrelevant to any potential liability of the [Defendant], or the relevancy of which is unexplained and unclear. At the same time, as pointed out above, many of the relevant allegations are bare ones or without sufficient particulars to allow the [Defendant] to adequately defend itself.

[7] In light of the foregoing, I am satisfied that the Defendant is entitled to the costs of this motion, but with an appropriate reduction to reflect the fact that it was only partially successful.

[8] While the Plaintiffs were successful in resisting some of the relief sought by the Defendant, I am of the view that, in the circumstances of this case, this “success” does not support awarding costs to the Plaintiffs. The Defendant was granted important relief on this motion and, overall, it is the successful party on the motion. In any event, the Plaintiffs, who are self-represented, have not adduced any evidence that, in responding to this motion, they incurred an “opportunity cost” because some remunerative activity was forgone: see Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 at paras. 27, 35.

[9] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I agree with the Defendant and find that the fair and reasonable award of costs in favour of the Defendant for the motion is in the all-inclusive amount of $5,000.00. In my view, this is an amount that the Plaintiffs should reasonably have expected to pay in the event that they were unsuccessful on the motion given, among other things, the seriousness of the allegations contained in the Statement of Claim, the number of issues raised and the time required to deal with them.

[10] Accordingly, I order that the Plaintiffs pay to the Defendant its costs of the motion in the all-inclusive amount of $5,000.00 within 30 days.

VERMETTE J.

Date: September 14, 2021