Court File and Parties

COURT FILE NO.: CV-17-344 DATE: 20220727

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Terri-Jo Thompson Plaintiff/Responding Party

– and –

Herschel Rescue and Training Systems, Terry Harrison, The Corporation of the Town of Hanover and John Doe Defendant/Moving Party

Counsel: Self-Represented N. Van Allen, for the Defendant, Town of Hanover

HEARD VIRTUALLY: July 27, 2022

REASONS ON costs

mccarthy j.

[1] The Defendant Town of Hanover was successful in obtaining summary judgment and dismissal of the Plaintiff’s claim.

[2] It now seeks its costs of the dismissed action and the motion in the amount of $43,447.34 which consists of: $37,429.50 for fees, $4,251.51 for HST, together with disbursements including HST of $1,766.33.

[3] The Defendant points to its success on the motion, the Plaintiff’s conduct both throughout the action and in response to the motion, as well as the Plaintiff’s failure to accept the Defendant’s offer for a dismissal of the action without costs made on March 12, 2020.

[4] The Plaintiff asserts that she should be entitled to her costs for reasons ranging from the alleged improper conduct and presentation of its case by the Defendant to the Plaintiff’s own reasonable expectations and conduct as a self-represented litigant.

[5] I see no reason to deprive the Defendant of its presumptive entitlement to costs.

[6] The litigation did involve a fatality. This was understandably upsetting for the Plaintiff; no doubt she became emotionally involved with the litigation and became steadfast in her conviction that she was both legally and morally entitled to seek redress for the Town’s alleged part in the incident and her own reaction to it.

[7] That said, my reasons make it clear that there was no genuine issue requiring a trial of the issues regarding the Town.

[8] The conventional rule 57.01 considerations are clearly in play.

[9] One, senior counsel Murphy is a 1989 call. I have no reason to question that he expended the hours claimed in his bill of costs. His hourly rate of $350 is not out of line for a lawyer of that experience.

[10] Two, the case did last more than 5 years and proceeded through pleadings, discoveries, and summary judgment. None of the steps taken by the Defendant were unnecessary or wasteful.

[11] Three, almost any summary judgment motion has its own complexities; this was no exception. The Defendant’s motion materials, including the factum, were focused and appropriate and the length of the hearing was entirely reasonable.

[12] Four, the issue of the Town’s liability was of modest if not precedential importance. Allegations of liability for a fatality and all that flows from that are always to be treated seriously. As well, the Plaintiff did seek damages of $1 million in its statement of claim. There was, of course, no recovery.

[13] Five, the Town did attempt to resolve the matter short of the motion by offering to accept a dismissal of the action without costs. That offer was not accepted by the Plaintiff.

[14] Six, although the Plaintiff claims that she could not have expected to be exposed to costs of the motion, I find this to be disingenuous on her part. Having been once represented by counsel, I must infer that she would have been advised of her potential exposure to legal costs. As well, the Plaintiff struck me as an intelligent person who was quite conversant with legal principles and procedure. I am confident that she would have apprised herself at some point early in the litigation of the cost consequences of an unsuccessful claim. In addition, the Defendant’s offer to settle of March 12, 2020 must have signaled to her that failure to accept that offer might likely attract adverse consequences. Finally, the Plaintiff’s own request for a significant quantum of costs reveals that she well understood that parties to litigation stand in a position to seek costs from the opposing side following adjudication by the court.

[15] That leaves the question of proportionality. Here, the amount claimed for costs is certainly proportional to the amount claimed in the pleadings; it is proportional to the time and effort expended in defending the action and in preparing and prosecuting the summary judgment motion; it is entirely proportional to the importance and complexity of the issues.

[16] In short, the Defendant’s claim for costs is reasonable. The court has a wide discretion in awarding and fixing costs. In doing so, I have taken into account that the Plaintiff was self-represented. I cannot, however, afford that factor much weight; the Defendant has incurred real costs in defending the action and in successfully advancing the summary judgment motion. The principle of indemnity serves to outweigh any sympathy I might have for the Plaintiff in these circumstances.

[17] For the foregoing reasons, I would allow the Defendant Town’s claim for costs and award them for the amount set out in the filed bill of costs.

[18] There shall be an order to go as follows: the Plaintiff shall pay to the Defendant the Corporation of the Town of Hanover its costs of the action and the motion fixed in the total amount of $43,447.34. That sum is inclusive of fees, disbursements and HST. Those costs are payable forthwith.

McCARTHY J.

Released: July 27, 2022