Ontario Superior Court of Justice

Court File No.: CV-20-00000196-0000
Date: 2025-04-15
Released: April 15, 2025
Heard: By written submissions

Parties and Counsel

Between:
Adam Bullock, Plaintiff/Defendant by Counterclaim
and
Jane Doe, Defendant/Plaintiff by Counterclaim

Appearances:
Jeffrey Ayotte, for the Plaintiff/Defendant by Counterclaim
Anna Matas and Abby Deshman, for the Defendant/Plaintiff by Counterclaim

Judge: Wendy L. Healey

Reasons on Costs

1This is the costs decision following a successful motion for summary judgment brought by the defendant on a claim based on malicious prosecution. The plaintiff’s claim was dismissed in its entirety.

2I have reviewed the written cost submissions of the parties. The defendant seeks costs in the amount of $112,84.28, arguing that such costs are reasonable given: all of the steps required to be taken in the case; time has been written off to account for factors for which the plaintiff should not be responsible, such as changes in lawyers working on the file; that the defendant made an offer to settle; and that the plaintiff should be responsible for costs thrown away as a result of service of an affidavit from the investigating officer outside of the deadlines in a timetable order.

3The plaintiff resists, submitting that the costs sought are excessive and disproportionate, not reasonably anticipated by him, and, as the officer’s affidavit was submitted on consent, he should not be responsible for costs thrown away. The plaintiff submits that a cost award on a partial indemnity scale based on a total of 150 hours is appropriate. He has provided a Costs Outline showing his own partial indemnity costs calculated in the amount of $46,744.51.

4The court has broad discretion in deciding whether to award costs, to whom, and in what amount: s. 131 of the Courts of Justice Act, RSO 1990, c C.43. However, that discretion is to be exercised in accordance with the provisions of an act or the Rules of Civil Procedure, RRO 1990, Reg 194: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., para 25; Andersen v. St. Jude Medical Inc., para 20; leave to appeal refused, 2006 CarswellOnt 7749 (Ont. C.A.).

5Rule 57.01 sets out the factors a court may consider when deciding costs, and the court must adhere to the principle of proportionality set out in r. 1.04(1.1). Despite those factors, the court’s authority under r. 57.01(1) remains discretionary: Ontario v. Rothmans Inc., 2013 ONCA 353, para 134.

6The overarching principle when fixing costs is that the amount of costs awarded be reasonable in the circumstances: Davies v. Clarington (Municipality), 2009 ONCA 722, para 52.

7In determining the appropriate amount of costs to which the defendant may be entitled pursuant to r. 57.01(1), the principles that guide my decision are those articulated in Andersen, at para. 22:

(1) The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1): Boucher v. Public Accountants Council for the Province of Ontario; Moon v. Sher; and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC.

(2) A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, para 4.

(3) The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).

(4) The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal at p. 249.

(5) The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

8In arriving at this decision on costs, I have fully considered the r. 57.01(1) factors and weighted them accordingly.

9With respect to the offer to settle, I find that it should not attract the cost consequences of r. 49.10. An offer for a dismissal with partial costs payable to the defendant does not contain any offer of compromise, as it assumes the success of the defendant and provides little incentive to settle the matter. I recognize that it is not an absolute requirement that an offer to settle contain an element of compromise: Walker Estate v. York-Finch General Hospital, para 76. However, in a case in which the only outcome is for one party to have complete success – the only decision being whether the action was going to be tried or not – in my view fairness requires that a party should not be penalized in higher costs for not capitulating entirely. This decision might have been otherwise if the plaintiff’s claim or conduct had been entirely unreasonable, but that does not characterize the nature of this lawsuit or the case that was put forward by the plaintiff.

10The plaintiff’s submission that there are no costs thrown away associated with the affidavit of the officer because it went in on consent oversimplifies the matter. The reply costs submission clarifies the matter. The endorsement of Woodley J. notes that the costs of the motion to admit the affidavit into evidence, the costs related to the consent adjournment of the summary judgment motion and any costs thrown away as a result of the admission of the affidavit were to be determined by the judge hearing the motion for summary judgment. I accept that these costs included steps other than just revisions to the defendant’s factum.

11I do not agree, however, that costs thrown away must be awarded on a full indemnity basis. Costs on this highest scale requires particularly egregious conduct that goes beyond that which would merit an award of substantial indemnity costs: Net Connect v. Mobile Zone, 2017 ONCA 766, para 8. Full indemnity costs are to be awarded rarely and with great caution. The test for awarding costs on a full indemnity basis is not satisfied in this case.

12Accordingly, all costs will be ordered on a partial indemnity basis. Based on hours docketed in the defendant’s Bill of Costs, this would amount to $100,075.85 inclusive of HST.

13In the final analysis, I am to “step back” to consider the appropriateness of the costs order overall.

14The submissions of the defendant state that greater costs may be incurred on behalf of a sexual assault victim because of emotional responses to the subject matter, relying on VT v. DT, 2021 ONSC 5926. This submission assumes that the defendant was sexually assaulted by the plaintiff. As her counsel addressed in her factum and in submissions on the motion, and in costs submissions, this court was not charged with determining whether the assault occurred, and that issue must not be conflated with whether the defendant had reasonable and probable grounds to disclose the alleged assault to the police.

15In my mind, this creates some tension when considering the overall fairness of an award of costs.

16It would not have been appropriate to evaluate the evidence to determine whether a sexual assault occurred in the context of an action for malicious prosecution. However, I did find that out of the four elements to be established in a malicious prosecution action, one was not satisfied, one was, and the evidence surrounding the other two raised issues requiring a trial. One of the issues that would have required a trial included whether the defendant had a subjective, honestly-held belief that she had been sexually assaulted by the plaintiff. In my view, that would have been required because there was evidence from which a trier of fact may have concluded that the defendant may have been aware that a sexual assault did not occur. Credibility was a significant issue.

17Accordingly, the primary issue in this case – whether any sexual encounter was consensual or not – has never been tested. It was because the case was framed as a malicious prosecution action that this summary judgment motion was resolved in the defendant’s favour. On one hand, it seems to this court to be manifestly unfair to have one party, who may ultimately be innocent of any wrongdoing, bear all the costs of attempting to prove that to be the case. On the other hand, the defendant certainly never asked to be drawn into an expensive lawsuit, whether she was sexually assaulted or not.

18Taking these considerations into account along with the legal framework for costs as discussed above, I find that an amount that is fair and reasonable for the plaintiff to pay to the defendant for this action is $75,000 inclusive of HST.

19This court orders that the plaintiff shall pay costs of this action to the defendant fixed in the amount of $75,000 inclusive of HST.

Wendy L. Healey