Court File and Parties
COURT FILE NO.: CV-22-61160 DATE: 2023-12-18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.B. Plaintiff
– and –
Niagara Regional Police Services Board Defendant
Counsel: J.D. Ekpenyong, counsel for the Plaintiff M. Cruickshank, counsel for the Defendant
HEARD: IN WRITING
THE HONOURABLE JUSTICE L. E. STANDRYK
DECISION ON COSTS OF A MOTION FOR SUMMARY JUDGMENT
CORRECTED DECISION: July 19, 2024 – Name of plaintiff has been anonymized. There has been no change to content.
Introduction
[1] M.B. (the "plaintiff") commenced a proceeding against the Niagara Regional Police Services Board (the "defendant") by statement of claim issued November 28, 2022. The defendant sought an order for summary judgment.
[2] The motion was heard on October 4, 2023. For reasons set out in my decision dated November 7, 2023, I granted summary judgment and dismissed the plaintiff's claim.
[3] My decision on costs was reserved to be determined if the parties could not agree on costs. The parties could not agree.
Preliminary Procedural Issue – Defendant's Request for a Sealing Order
[4] Both parties filed their submissions on costs in accordance with my direction and timetable for doing so. The plaintiff filed cost submissions on November 22, 2023 and a further cost submission filed November 23, 2023.
[5] The plaintiff's cost submissions are identical in nature with the exception that the second submission includes a request by the plaintiff for a sealing order.
[6] The plaintiff submits that a sealing order is appropriate due to harm that will result from the circulation of her personal information and the misleading allegations concerning her mental health and well being.
[7] The defendant submits that: i. it is inappropriate for the plaintiff to request a sealing order in the body of her cost submissions; ii. the circulation of information regarding the plaintiff is due to the plaintiff's own actions in pursuing this proceeding; and iii. the plaintiff does not satisfy the basic test to obtain a sealing order.
[8] Section 135 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that subject to certain limited exceptions, all court hearings should be open to the public. Under section 137(2) of the Courts of Justice Act, a court may order that any document filed in a civil proceeding be treated as confidential, sealed, and that it not form a part of the public record.
[9] A request for a sealing order is typically made on a motion and typically accompanied by an affidavit. Any request for a sealing order, as well as the request to anonymize or refrain from publishing a decision, must follow the default procedure set out in the Consolidated Civil Provincial Practice Direction, effective June 15, 2023, at Part VI (H).
[10] The plaintiff has not followed the default procedure, has failed to file a motion with supporting affidavit material, and has neglected to provide the defendant with proper notice of the requested order. In these circumstances, I decline to grant the order requested by the plaintiff.
Position of the Parties on the Issue of Costs
Defendant
[11] The defendant requests partial indemnity costs in the amount of $8,836.76 comprised of fees in the amount of $8,303.75, disbursements in the amount of $533, and HST.
[12] The defendant argues that the Niagara Region provides legal services to the local police pursuant to legislative and insurance obligations. Time dockets are maintained, though invoices for legal services are not rendered. Notwithstanding that, the defendant submits that salaried, in-house lawyers are entitled to seek costs for their clients on an equal basis to external lawyers, relying on s. 131(2) of the Courts of Justice Act, s. 36 of the Solicitors Act, R.S.O. 1990, c. S.15, and Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 134.
[13] The defendant asserts that it was obligated to incur costs that would not have been incurred had the plaintiff acted reasonably up to and including the hearing of motion.
[14] The defendant, relying on factors stipulated in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, highlights the following: i. The plaintiff claimed $2,200,000 and her claim was dismissed. The amount of costs sought by the defendant is fair and reasonable in the circumstances given the quantum of the claim, nature of the proceeding, and amount of time spent in researching and responding to the materials; ii. The issues on the motion were not complex however necessitated the filing of a factum; iii. The position taken by the plaintiff was unreasonable and placed the defendant to unnecessary time and expense particularly within the context of the defendant having raised limitation period issues at the outset of the proceeding prior to the close of pleadings; iv. The motion was delayed due to the plaintiff's failure to properly file materials and request for adjournments; v. Counsel for the defendant has 19 years and 4 months of experience. The partial indemnity lawyer rate of $227.50 per hour is on the low end of comparable non-salaried layers of similar vintage.
[15] The defendant submits that relevant to my consideration on the issue of costs is the fact that it was not until after the commencement of the hearing that plaintiff's counsel acknowledged that all aspects of the plaintiff's claim were statute barred. This acknowledgment was qualified by the plaintiff's submission that the facts as plead in the proposed amended statement of claim revived the limitation period.
Plaintiff
[16] The plaintiff acknowledges that there is no dispute regarding the general principles to be applied by the court in the determination of costs, including that a successful party is ordinarily entitled to receive costs from an unsuccessful party. However, the plaintiff submits that there are circumstances of this case that support an exercise of judicial discretion to decline such an award.
[17] The plaintiff submits that the relevant factors to decline such an award include the fact that the defendant's lawyer is an in-house lawyer and salaried employee, and the defendant is a wealthy litigant.
[18] The plaintiff argues that a cost award would produce a chilling effect and deter future plaintiffs from accessing the justice system and pursuing valid claims before the courts.
[19] The plaintiff asserts that she is hurting enough as a result of the alleged conduct of the defendant and urges the court to decline an award of costs in favour of the defendant.
The Law
[20] The discretion to award costs arises from s. 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out the factors which guide the exercise of that discretion.
[21] Rule 57.01 lists the following factors for the court to consider in the assessment of costs which include but are not limited to:
In addition to the result in the proceeding and any offer to settle or to contribute made in writing, ▪ the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer; ▪ the amount of costs that an unsuccessful party could reasonably expect to pay; ▪ the amount claimed and amount recovered in the proceeding; ▪ the complexity of the proceeding; ▪ the importance of the issues; ▪ the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; ▪ whether any step in the proceeding was improper, vexatious, or unnecessary, or taken through negligence, mistake or excessive caution; ▪ a party's denial of or refusal to admit anything that should have been admitted; ▪ the concept of proportionality including the amount claimed and the amount recovered, and the amount of costs an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; and ▪ any other matter relevant to the question of costs.
[22] The weight to be applied to these factors may vary. Success is a presumptive factor. The general rule is that costs will be measured on a partial indemnity basis: see Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.).
[23] This approach is said to accord with common sense and serves a number of purposes including: (1) the indemnification, at least to some extent, of successful litigants; (2) the facilitation of access to justice; (3) the discouragement of frivolous positions and/or inappropriate behaviour; and (4) the encouragement of settlements, as referenced by Boswell J. in Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 6290, at para. 8, referring to Perrell J. in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10.
[24] I must keep in mind the overriding principle is that a costs award is not simply a mathematical calculation of the time properly spent multiplied by the lawyer's hourly rate. The principles of reasonableness and proportionality must be considered: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519 (C.A.).
Analysis
[25] This proceeding involved a claim for defamation amongst other relief abandoned by the plaintiff during the hearing. The summary judgment motion proceeded on the question of whether the plaintiff's claim was statute barred by the provisions of the Libel and Slander Act, R.S.O. 1990, c. L.12.
[26] The issue was straightforward and not overly complex, but the issues were very important to both the plaintiff and the defendant.
[27] I am unable to conclude that any step taken by the plaintiff was vexatious or taken in bad faith. However, I find that the plaintiff's conduct in requesting an adjournment of the hearing on August 28, 2023 to conduct cross-examinations and subsequently failing to do so contributed to unnecessary delay and additional expense to the parties.
[28] The defendant raised concerns regarding the limitation period prior to the close of pleadings. The defendant prepared its summary judgment motion on all aspects of the plaintiff's claims. It was not until after the commencement of the hearing on October 4, 2023 that the plaintiff acknowledged that aspects of her claim were statute barred and abandoned several of those claims. I find that the plaintiff's conduct contributed to a measure of unnecessary costs incurred by the defendant.
[29] I have not been referred to any offers to settle exchanged between the parties.
[30] The amount sought by the plaintiff in her claim was $2,200,000 and her claim was dismissed in its entirety.
[31] While I may consider the amount that the plaintiff could reasonably expect to pay in relation to the motion for summary judgment, the plaintiff did not file a bill of costs from which I may assess her reasonable expectation, nor did she make any submissions in this regard.
[32] The plaintiff does not assert any concerns with the defendant's bill of costs. Following my careful review of the defendant's bill of costs, I am satisfied that the rate sought by the defendant on a partial indemnity scale having regard to counsel's years of experience is reasonable. I have no concerns with the 36 hours of time spent by the defendant's counsel which includes preparation of the defendant's pleading and all materials required for the motion.
[33] I am not persuaded by the plaintiff's submission that the defendant should be denied costs because counsel is a salaried, in-house lawyer. The law is settled that salaried, in-house lawyers are entitled to seek costs for their clients on an equal basis to external lawyers: see s. 131(2) of the Courts of Justice Act, s. 36 of the Solicitors Act, and Ontario (Attorney General) v. Rothmans Inc., at para. 134.
[34] The plaintiff has requested that I decline an award of costs due to her personal circumstances and the chilling effect that an award of costs may have on future litigants and their willingness to pursue valid claims.
[35] The plaintiff has failed to file any information pertaining to her personal financial circumstances and ability to satisfy a cost award for my consideration.
[36] The plaintiff asserts that this proceeding and her interactions with the defendant have taken a considerable emotional toll on her. I am not unsympathetic to her purported circumstances; however, she has failed to provide this court with any evidence during this proceeding to substantiate those allegations or that would permit an exercise of my discretion to deviate from the prevailing principle to award costs to the defendant as the successful party.
[37] I am equally not persuaded that the costs requested by the defendant, if awarded, would create a chilling effect on future litigants. I am mindful of the comments of the Ontario Court of Appeal in Boucher, that the costs system is incorporated into the Rules of Civil Procedure to facilitate access to justice. There are cases where the prospect of an award of costs against a losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation: see Boucher, at para. 37.
[38] The plaintiff, having commenced this litigation, is assumed to accept the risks and financial consequences that may arise from litigation. The amount sought by the defendant in the sum of $8,836.76 is not of a magnitude to cause a chilling effect to future litigants who seek to access justice. The amount sought by the defendant, in my view, is reasonable and represents a fair and reasonable consequence arising from the plaintiff's position taken in this litigation.
Conclusion
[39] For the foregoing reasons, having considered the overarching principles of reasonableness and proportionality, I find it appropriate to fix the defendant's costs payable by the plaintiff at $8,836.76 inclusive of HST and disbursements.
[40] Costs shall be paid within 90 days of receipt of this endorsement.
L. E. Standryk J.
Released: December 18, 2023
COURT FILE NO.: CV-22-61160 DATE: 2023-12-18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.B. Plaintiff
– and –
Niagara Regional Police Services Board Defendant
DECISION ON COSTS OF A MOTION FOR SUMMARY JUDGMENT
L. E. Standryk, J.
Released: December 18, 2023