CITATION: Brown v Bramalea City Centre et al., 2026 ONSC 4603
COURT FILE NO.: CV-09-1924
DATE: 2026 08 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Collington Brown, Plaintiff
AND:
Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Waugh, Defendants
BEFORE: M.T. Doi J.
COUNSEL: Maya M. Kanani and Jordan Conway, for the Defendants
Atrisha Lewis, Todd Pribanic-White, and Richard De Almeida, for the Plaintiff
HEARD: In Writing
COSTS Endorsement
Overview
[1] The plaintiff brought this action for personal injury damages from a May 3, 2003 incident in which the defendant security guards arrested him for trespassing at a department store after he tried to return a purchase for a refund.
[2] Following a 4-week trial, the jury returned their verdict on February 14, 2026 finding that the defendant guards had reasonable grounds to arrest the plaintiff for trespass as he did not leave the store immediately after being asked to leave the premises. The jury also found that the guards used reasonable force and did not use race or racial stereotypes in dealing with the plaintiff. The jury awarded no damages to the plaintiff.
[3] On April 27, 2026, I dismissed the plaintiff’s motion to not enter judgment for a lack of evidence to support some of the findings in the jury’s verdict, and found that judgment should be entered to dismiss the action in accordance with the verdict: Brown v. Bramalea City Centre et al., 2026 ONSC 2398. The parties did not agree on costs and proceeded to file written submissions on costs as directed. The following is my decision on costs for the action.
Legal Principles for Awarding Costs
[4] The court has broad discretion in awarding costs: s. 131(1) of the Courts of Justice Act, RSO 1990 c C.44; 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc, 2025 ONCA 447 at paras 70-71. Subrule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, lists the factors for the court to consider in awarding costs. In addition, the court should consider the principle of proportionality and seek to balance the indemnity principle with the objective of facilitating access to justice: r. 1.04(1.1). To properly assess costs, the court should critically examine the relevant factors under r. 57.01(1) before stepping back to consider whether the result is fair and reasonable in the circumstances: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ONCA) at para 24; Restoule v. Canada (A.G.), 2021 ONCA 779 at para 356; Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587 at para 60, leave to appeal denied 2023 CanLII 33987 (SCC). The parties’ reasonable expectations are an important factor to consider in awarding costs: r.57.01(1)(0.b); Boucher at para 38; Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company, 2020 ONCA 558 at para 119. However, as not all expectations are reasonable, this factor should not overwhelm the analysis for what costs award is objectively reasonable in the circumstances of the case: Apotex at para 62; 100 Bloor at para 71.
[5] The party seeking costs bears the burden to prove that their claim for costs is reasonable, fair, and proportionate: Apotex Inc. at para 66.
[6] Modern costs rules are meant to advance the following goals for the administration of justice: a) indemnify successful litigants for the costs of litigation, but not necessarily completely; b) facilitate access to justice; c) discourage frivolous claims and defences; d) discourage and sanction improper conduct by litigants; and e) encourage settlements: Fong v. Chan, 1999 CanLII 2052 (ONCA) at para 22; 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 2006 CanLII 35819 (ONCA) at paras 26 and 45; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at para 10; Noori v. Chagpar & Associates, 2025 ONSC 6619 at para 6.
[7] Overall, the goal in awarding costs is to fix an amount that is objectively fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than just awarding an amount that reflects the successful litigant’s actual costs: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ONCA) at para 4; Boucher at para 26; Apotex at para 61; 100 Bloor at para 71. As deciding costs is not an exact science, the court need not engage in an exact measure or detailed analysis of dockets in awarding costs but should instead follow the overarching principle that an award of costs should be fair, reasonable, and proportionate: Zesta at para 4; McNaughton Automotive Limited v. Co-operators General Insurance Co., 2009 ONCA 598 at para 17; Apotex at paras 61, 66; Noori at para 8; Moustakis v Agbuya, 2024 ONSC 4981 at para 13; Erectoweld Company Limited v. Procor Limited et al., 2026 ONSC 3536 at para 8.
[8] As a general rule, costs on a partial indemnity scale should follow the event with deviations only for very good reasons such as a party’s misconduct, procedural miscarriage, or oppressive or vexatious conduct: 1318706 Ontario Ltd. v. Niagara (Regional Municipality), 2005 CanLII 16071 (ONCA) at paras 50-51; Misek at para 12; Hakim v. Pfizer Inc., 2026 ONSC 1170 at para 34.
[9] Public interest and the manner in which a party conducts litigation may form the basis of a decision to not award costs to a successful party at trial: Euteneier v. Lee, 2005 CanLII 44375 (ONCA) at paras 6-8, leave to appeal denied 2006 CanLII 6169 (SCC); Gentles v. City of Toronto Non-Profit Housing Corporation, 2009 CanLII 63953 (ONSC) at paras 25-30, 37-38, affirmed 2010 ONCA 797 at paras 143-147. A deviation from the usual cost consequences is not routine, only arises in rare and truly exceptional cases on public interest litigation grounds were a party has no economic interest to justify the litigation, and must surpass a high threshold as Tranquilli J. explained in Hawke v. University of Western Ontario, 2022 ONSC 7017 at para 7:
Courts have discretion to alter cost consequences where litigants seek to enforce their constitutional rights or raise matters of consequence to the public: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. However, a deviation from the usual cost consequences for the purpose of public interest litigation should not become routine. The case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the litigant. They must also have a significant and widespread societal impact. The standard is a high one: only rare and exceptional cases will warrant such treatment. The litigants must also have no personal, proprietary, or pecuniary interest in the litigation that would justify the proceedings on economic grounds: Carter, at paras. 137-140. [Emphasis added]
See also Foxgate Developments Inc. v. Jane Doe, 2023 ONSC 1818 at paras 10-11.
[10] In any event, a public interest litigant is not automatically excused from all adverse costs consequences in an unsuccessful action, although their status as public interest litigants is a factor for the court to consider in deciding costs: Yaiguaje v. Chevron Corporation, 2018 ONCA 472 at paras 87-88, leave to appeal refused, 2019 CanLII 25908 (SCC); Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509 at para 23.
[11] The court will award costs on an elevated scale in exceptional situations where a party has engaged in reprehensible, scandalous, or outrageous conduct that is worthy of sanction: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at 134; Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57 at para 95. It is well-established that substantial indemnity costs are extraordinary and awarded in only exceptional cases, for example, where a party or its counsel engaged in egregious misconduct or where the litigation is clearly vexatious, frivolous, or an abuse of process: Lewis v. Lewis, 2019 ONCA 690 at para 17. Apart from the operation of r. 49.10, elevated costs are awarded on only a clear finding of reprehensible conduct by the party against whom the award is made: Davies v. Clarington (Municipality), 2009 ONCA 722 at para 40. Generally, a case for elevated costs may arise where serious but unfounded allegations of wrongdoing are asserted and pressed by the unsuccessful litigant, or where they conducted the litigation in oppressive or unreasonable fashion that unnecessarily increased the length and expense of the action in circumstances where a sanction is appropriate. However, as Epstein J.A. noted in Davies at para 45:
Of course, a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counter-productive conduct, on the other. The former, the thrust and parry of the adversary system, does not warrant sanction: the latter well may. In [Apotex], substantial indemnity costs were justified as a means [at para. 8] "to discourage harassment of another party by the pursuit of fruitless litigation . . . particularly where a party has conducted itself improperly in the view of the court". [Citations omitted.]
[12] Where a successful party is represented by a salaried lawyer, the proper method of fixing costs is to deal with them as through they were the costs of an independent outside lawyer to roughly and fairly approximate the actual expenses incurred: s. 36 of the Solicitors Act, RSO 1990, c. S.14; Ontario (Attorney General) v. Rothmans, 2013 ONCA 353 at para 136, leave to appeal denied 2013 CanLII 83800 (SCC); Grant & Toy v. Aviva Canada, 2010 ONSC 372 at paras 4-5.
Offers to Settle
[13] Both sides served offers to settle before trial that do not trigger formal costs consequences. The plaintiff did not best his offer to settle the action for $2 million in damages and interest plus costs and disbursements. In addition, the plaintiff did not accept the defendants’ offer to settle for $250,000.00 in damages with costs, disbursements and interest to be agreed upon or assessed, that was more favourable than the “nil” judgment that he achieved at trial. His decision to decline the defence’s offer to settle does not implicate direct costs consequences under r. 49.10(2) as he did not recover any judgment at trial: S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 CanLII 6856 (ON CA), 1 OR (3d) 243 (CA) at 245; Dermann v. Baker, 2019 ONCA 584 at paras 24-25. Nevertheless, I shall exercise my discretion under r. 49.13 to factor the parties’ written offers to settle in deciding costs.
Analysis
[14] The action arose from injuries the plaintiff claimed to have suffered when the defendant security guards arrested him on May 3, 2003 for trespassing at a department store after he tried to return a vacuum cleaner and obtain a refund for the purchase. The issue of race and racial profiling or stereotyping was central to the plaintiff’s theory of the case as he argued that the defendant guards racially profiled him using stereotypes about Black men that influenced their treatment of him that day. The case was hard-fought. In the end, the jury rejected the plaintiff’s claims. He was wholly unsuccessful at trial.
[15] I find that the plaintiff has not met the requisite high threshold to be exempt from adverse cost consequences as a public interest litigant. His unsuccessful outcome at trial does not diminish the seriousness of his misconduct allegations against the defendants, or the associated implications for the public at large, and I find that he did not act unreasonably in trying to hold the defendants accountable for their alleged misconduct in arresting him. But a public interest aspect to litigation will not automatically exempt an unsuccessful party from adverse cost consequences despite being a factor to consider in deciding costs: Friends at para 23; Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2 at para 35; Yaiguaje at paras 87-88. A departure from the usual cost consequences on public interest litigation grounds will arise only in rare and truly exceptional cases where the unsuccessful party has either no interest to justify the litigation on economic grounds, or a clearly modest financial interest in relation to the overall costs of the action, among other things: Hawke at para 7; Foxgate at paras 10-11. In this case, the plaintiff was pursuing a sizeable multi-million dollar damages award that reflected a substantial financial motive for bringing this action.[1] In the circumstances, I accept that the plaintiff had an obvious and significant financial motive for pursuing the action that should reasonably disqualify him from being considered as the sort of public interest litigant who should be relieved from paying the successful defendants their costs of the action: Ibid.
[16] Although the plaintiff invited me to adopt Sanderson J.’s reasoning in Gentles to construe this action as public interest litigation to exempt him from adverse costs consequences, I find that Gentles and Euteneier (i.e., that Sanderson J. cited in Gentles) are distinguishable from this case given the plaintiff’s pursuit of a substantial claim for damages in this litigation. In addition, the jury in Gentles awarded damages whereas the jury in this case awarded no damages after finding that the defendants lawfully arrested the plaintiff. Unlike Gentles, this case raised no novel issues as prior appellate decisions thoroughly canvassed the legal principles governing non-police arrests under the Trespass to Property Act, RSO 1990, c T.21: R. v. Asante-Mensah, 2003 SCC 38 at paras 71, 73-76; Tucker v. Cadillac Fairview Corporation Ltd., 2005 CanLII 24579 (ONCA) at paras 15-25; Gentles (CA) at paras 50-73. In contrast, Sanderson J.’s costs decision in Gentles came just after the Supreme Court in Asante-Mensah noted that judicial consideration of the scope of the arrest justification under the Trespass to Property Act in a private tort action would, “have to await a proper case”: Asante-Mensah at para 76. Sanderson J. also cited other factors for denying the successful defendants in Gentles their costs, that included persistent defence objections that slowed the pace of trial plus the $55,000.00 award of damages for the plaintiffs whom the jury found were not trespassing when their arrest was initiated by security guards without reason or justification: Gentles (SCJ) at paras 25, 32-35. In contrast, the jury in this case found that the arrest had been reasonable, that race or racial stereotypes had no role in how the defendants treated the plaintiff, and that no damages should be awarded. As such, despite the public interest aspects of this case, I find that the plaintiff should not be exempt from adverse costs liability on public interest litigation grounds in the circumstances of this case.
[17] As the defendants were successful at trial, I accept that they are entitled to costs.
[18] Relying on the jury’s nil verdict at trial, the defendants seek their costs on an elevated scale by arguing that the court should sanction the plaintiff for reprehensible, scandalous, and outrageous conduct as he accused them of dishonesty, fraud, and other misconduct which they submit was unfounded, unreasonable, and seriously prejudicial to their character and reputations: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at paras 25-26; DiBattista v. Wawanesa Mutual Insurance Company, 2005 CanLII 41985 (ONSC) at paras 4-5. Respectfully, I am not persuaded by this submission.
[19] I find that the plaintiff raised and pursued arguable claims at trial. In my view, his claims of racial profiling and excessive or negligent use of force by the defendant guards in arresting him were reasonably and coherently presented at trial.
[20] The plaintiff’s race and force-related claims had an evidentiary foundation at trial. Among other things, a defendant security guard prepared a special incident report dated May 3, 2003 that incorrectly reported that the plaintiff had, “many dealings with police with an extreme history of violence” that was undisputedly shown at trial to be untrue. This report supported the plaintiff’s claim of conscious or unconscious racial bias around the time the defendant guards arrested him. There was uncontroverted evidence that several defendant guards collaborated in preparing their incident reports for the plaintiff’s arrest to ensure a common and consistent account of the arrest. Notably, the common account by the collaborating guards was contradicted by a non-collaborating guard who did not report that the plaintiff physically attacked a guard just before his arrest as the common account otherwise reported. A racialized defendant guard used racial and depersonalized language to describe the plaintiff. Store employees testified that the guards were not asked to use force. The plaintiff also led evidence of the injuries he claims to have sustained in the arrest that included a wrist or arm injury from handcuffs he alleges the guards applied too tightly, as medical and other evidence corroborated to some extent. Having regard to all the evidence, including the speed and manner in which the guards used force to make the plaintiff, I accept that he reasonably led sufficient evidence of possible racial animus and/or excessive force by the guards in making the arrest.
[21] In seeking an award of elevated costs to sanction the plaintiff, the defendants rely on cases that I find are factually distinguishable from this case. In Hamilton, the trial judge found that while the allegations of dishonesty and fraud perhaps had some circumstantial plausibility, the plaintiff unduly persisted in alleging dishonesty despite information sufficient to conclude that the other party was merely negligent and neither dishonest nor fraudulent. In the circumstances of that case, the Supreme Court found that awarding costs on an elevated scale was appropriate: Hamilton at paras 25-26. Similarly, the trial judge in DiBattista found that the plaintiffs wrongly persisted in raising unfounded allegations of high-handed, malicious, and dishonest conduct against all defendants at trial, and in print and tv media, that justified an award of substantial indemnity costs after a jury denied all claims: DiBattista at para 4. However, as Arbour J. wrote for the Supreme Court in Hamilton, an unsuccessful attempt to prove fraud or dishonesty will not lead inexorably to a finding that the unsuccessful party necessarily engaged in reprehensible, scandalous, or outrageous conduct to justify an award of costs on an elevated scale: Hamilton at para 26. As set out earlier, I accept that the plaintiff raised and pursued arguable claims that were supported by evidence at trial. In my view, his lack of success at trial should not result in a finding that his claims were scandalous, improper, or hopeless to justify sanctioning him with an award of elevated costs: Davies at para 45.
[22] I reject the defence’s submission that the magnitude of the plaintiff’s damages claim was unreasonable give the “nil” verdict of the jury at the end of trial that should somehow impose a higher costs burden on him. On this point, I share the view of D. Wilson J. (as she then was) in Rodas v. Toronto Transit Commission, 2012 ONSC 5662 at para 17 where she explained:
17Cases involving damages sought for chronic pain arising from an accident often have a large sway in terms of their value and this is particularly true when the case is being tried by a jury. One of the difficulties in assessing cases of this nature is the fact that there is generally nothing objective from a clinical perspective that one can look to as a reason for the severity of the patient’s complaints. Thus, the triers of fact must look to the credibility of the Plaintiff and the expert opinions of the medical witnesses when attempting to assess the damages. The outcome is highly unpredictable in cases involving this type of injury.
Given the dynamics of these sorts of personal injury cases, particularly those tried by jury, I am not persuaded by the defence’s view that something improper arose in how the plaintiff framed or pursued his damages claim at trial to justify an award of elevated costs: see also Arulanantham v. Devine, 2020 ONSC 4824at para 21.
[23] I find nothing improper about the plaintiff bringing the action on May 1, 2009 within the operative limitation period. In a mid-trial ruling, I found that the plaintiff’s actions in bringing and maintaining the action should not be held against him, as the defence fairly conceded in its submissions, after which I instructed the jury accordingly.[2]
[24] In my view, the defendants have overstated the significance of the plaintiff’s adjournments, that conservatively totalled about 27 months and constituted a fairly modest part of the 17-year period bridging the start of the proceeding and the trial of the action.[3] I accept that the defendants were responsible for about 103 months of delay at the discovery stage of the action.[4] In addition, the defence contributed to a procedural delay of over 15 months by bringing a security for costs motion that was granted on July 25, 2013 before being overturned on appeal on October 22, 2014.[5] On balance, I find for the purpose of deciding costs that delay considerations favour the plaintiff as the defence’s discovery-stage delay of roughly 103 months (i.e., about 8 ½ years) significantly overshadowed the plaintiff’s collective adjournment-related delays that totalled about 27 months (i.e., just over 2 years). In this case, delay is a particularly aggravating factor as faded memories of witnesses and lost or deteriorated evidence featured prominently at trial. That said, I accept that the defendants should have their trial preparation costs thrown away due to the plaintiff’s multiple adjournments of the trial.[6]
[25] I am not persuaded that the defendants should be sanctioned with costs for their decision to not resolve the quantum of damages for the action. The plaintiff submits that settling the amount of damages would have substantially reduced the time for trial by allowing the parties to focus on liability alone. Respectfully, I do not accept that the parties could reasonably have settled damages before trial given the substantial disparity between their positions as reflected in their pre-trial offers to settle. In any event, I do not find that the quantum of damages issue substantially increased the length of trial given the parties’ hotly-contested liability positions that led both sides to conduct rigorous and fulsome examinations of most trial witnesses.
[26] The defendants, who effectively are institutional parties, did not preserve or produce video footage of the arrest that likely lengthened the duration of trial given the absence of this objective evidence of the plaintiff’s arrest on May 3, 2003. In all likelihood, this video evidence would have narrowed the factual disputes and lessened the need for contemporaneous eyewitness evidence.
[27] In a mid-trial ruling on January 28, 2026, I held that the defence had sufficiently responded to a discovery undertaking by Mr. McGrath to retrieve memo books used by the guards to record their interactions with the plaintiff on May 3, 2003, and I declined to prevent him from testifying at trial about his efforts to find the books.[7] Undoubtedly, the efforts to find the memo books were hampered by the fact that the guards’ employer, the defendant Canstar Security Services Inc., ceased operations in 2008. The jury was instructed that they could draw adverse inferences from their review of the evidence.
[28] Notwithstanding my ruling on the scope of Mr. McGrath’s evidence at trial, however, I do not find that the defendants should be absolved of costs consequences for not preserving and producing the arrest videos. To this end, I accept that the videos likely would have reduced the need for extensive eyewitness testimony and submissions about this testimony and the events surrounding the arrest.
[29] I am not persuaded that the defence’s claim for costs should be assessed against various failures to correct or complete their discovery evidence before trial as required under r. 31.09(1). The duty to correct discovery evidence exists to prevent trial by ambush, promote settlement, narrow issues, and ensure a party knows its case to meet. Failures to comply with the Rules of Civil Procedure may attract cost consequences: Iannarella v. Corbett, 2015 ONCA 110at para 140. However, almost every witness at trial, including the plaintiff, gave testimony that was inconsistent with their discovery evidence. In the circumstances, I am not persuaded that non-compliance with r. 31.09(1) is a compelling reason to reduce or deny costs in this case in which memories faded due to the passage of time and other frailties. For instance, during the plaintiff’s examination for discovery, he denied raising his voice or using profanity immediately before his arrest, only to testify at trial that he “might have” raised his voice and told security guards “if you touch me, the shit will hit the fan.” His exchange with the guards before his arrest was significant evidence about the context in which the guards used force to arrest him. In another instance, Mr. Waugh testified at trial that the plaintiff had elbowed Mr. Magnaye in the stomach or chest even though Mr. Waugh did not recall this in his earlier discovery evidence, all of which was clearly significant to assessing the nature of the force used by the guards to arrest the plaintiff, which was a central issue at trial. In a further instance, Mr. Harnest testified at discovery that he was not given training by Canstar, only to testify at trial that he did receive “some refresher training” that raised a discrepancy on a central liability issue at trial. Taking everything into account, I am not persuaded that any non-compliance with the duty to correct discovery evidence under r. 31.09(1) was more pronounced or severe by one side that the other, whether in respect of the seriousness or frequency of any such non-compliance, to justify have either side bear any associated adverse cost consequences under r. 57.01(1)(e),(i): Iannarella at para 140.
[30] The defence unsuccessfully moved to exclude the testimony of Dr. Thomas Shea, the plaintiff’s use of force expert. As the defence motion contributed to the length and complexity of the trial, I accept that the defence should bear cost consequences for the motion.
[31] Prior to trial, the plaintiff advised of his intention to seek leave to amend the statement of claim to plead a higher quantum of damages. The defence initially declined to consent to the motion and understandably led the plaintiff to prepare for a contested motion. On the eve of trial, the defence changed its position by advising that it would not oppose the proposed amendment to the statement of claim. In light of this, I find that the defence likely caused the plaintiff to incur unnecessary preparation and expense for which the defence should bear cost consequences.
[32] The defendants seek their costs of the action in the all-inclusive amount of $556,247.40. The plaintiff has not presented his own bill of costs or offered any basis to comparative assess the reasonableness of the rates, time, and disbursements claimed by the defendants.
[33] In deciding the amount of costs, the defence has proposed setting the hourly rates of their counsel based on the Law Society of Ontario’s “Outside counsel fee schedule” that it included in its costs compendium without explaining what the schedule is used for. The fee schedule is posted on the Law Society’s webpage and is used to remunerate its outside counsel who are periodically retained to support its regulatory activities (i.e., investigations, giving expert evidence or opinions, discipline hearings, and acting for the Law Society before the courts).[8] The court is not bound by the fee schedule in deciding costs: Hamour v. Hamour, 2021 ONSC 4563at para 18.
[34] I accept that the defence’s proposed hourly rates for external counsel and paralegals are reasonable and appropriate. Respectfully, however, I find the proposed hourly rates for in-house counsel (i.e., that exceed rates claimed for more experienced external counsel) are excessive given the moderately-complex nature of the issues at trial. Salary information for in-house counsel and staff was not provided. In the circumstances, and to fairly approximate actual expenses incurred, I shall assign a rate of $275.00 for senior counsel (a 9-year Call), $215.00 per hour for junior counsel (a 3-year Call), and $110.00 per hour for their paralegal: Rothmans at para 136. Given the nature of this case, I accept that the defence reasonably had co-counsel for the trial (as did the plaintiff) to appropriately maintain carriage of the litigation.
[35] Given the involvement of many different counsel in defending the case, I share the concern raised by the plaintiff over the costs related to the internal transfers of carriage, file reconstruction activities, and other costs tied to the change or involvement of multiple counsel and paralegals that I accept should not be shifted to the plaintiff, particularly after in-house counsel took carriage of the litigation from external counsel prior to trial.
[36] Recognizing that the action spans a lengthy period of over 16 years, I find that the defence’s claim of 1,583 hours (i.e., reflecting the equivalent of over 7 months of near-continuous activity) for the proceeding is excessive and disproportionate to the nature and complexity of the issues in dispute. The case was not overly complex but did involve multiple experts and lay witnesses and included claims for physical and mental health injuries and chronic pain. The plaintiff pursued a significant multi-million dollar claim that raised serious allegations of wrongdoing against the individual defendants that understandably triggered a robust defence given the high-stakes nature of the action. The plaintiff did not accept the defence’s offer to settle and forced the case on to trial to pursue sizeable damages, as he was entitled to do. Proportionality is an important factor in deciding costs but should not result in a successful party being under-compensated for its costs: Interborough Electric Inc v. 724Ruling351 Ontario Ltd, 2016 ONSC 1115 at para 57; Gardiner v. MacDonald, 2016 ONSC 2770 at para 19; Persampiere v. Hobbs, 2018 ONSC 368 at paras 76-92, Jodi L. Feldman Professional Corporation v. Foulidis, 2024 ONSC 3598at para 9.
[37] At this time, I decline to award pre-trial motion and appeal costs as I accept that those costs were addressed previously.
[38] I am not awarding costs for the initial case review by in-house defence counsel (i.e., after taking carriage from external counsel) as I find that the plaintiff should not bear this cost given its duplicative nature. I decline to award costs for the defence’s preparation of costs submissions as I find no unusual circumstances to justify departing from the principle that costs awards in civil litigation generally exclude costs related to the determination of costs: Mcdonald v. Anishinabek Police Service, [2007] OJ No 424 (Div Ct) at para 30; Bloor Parliament (Block A) Investments Ltd., v. Sherbourne Residential (Concert) LP, 2021 ONSC 929 at para 7.
[39] Having reviewed the defence’s bill of costs, I am exercising my discretion to award the defence its partial indemnity costs in the amount of $20,000.00 for work performed by external counsel to defend the case during the pleadings and discovery-related stages of the litigation. In addition, I am awarding the defence $8,000.00 in partial indemnity costs for work performed by external counsel to conference the disputed matters in this proceeding. Further, I am awarding $20,000.00 in partial indemnity trial-preparation costs thrown away due to the three adjournments of the trial that the plaintiff requested.
[40] Applying the rates assigned to in-house counsel as set out earlier, and having regard to my earlier findings, I award $120,000.00 in partial indemnity cost for work performed by the defence’s in-house counsel to prepare for and conduct the trial and the post-trial motion for judgment. Accordingly, the fees awarded to the defence shall total $168,000.00 (i.e., $20,000.00 + $8,000.00 + $20,000.00 + $120,000.00).
[41] I am exercising my discretion to not allow payment for trial transcripts that the defence ordered but did not strictly require as it had co-counsel at trial who could help with note taking: Noori v. Liu 2021 ONSC 33445 at paras 55, 79; Doral v. Dyal, 2023 ONSC 2908 at para 54. I am disallowing the disbursements claim for Dr. Gnam, the psychiatry expert for the defence, who did not testify as the plaintiff’s mental health evidence was not contested, which put this disbursement beyond what the unsuccessful plaintiff should reasonably be expected to pay: Glass v. Glass, 2013 ONSC 6277 at para 14. I shall not award any investigation-related costs to the defence as its investigators did not testify or provide any surveillance or other evidence to meaningfully reduce or narrow the issues at trial that would otherwise have justified having the plaintiff pay these costs. I will not award the full $26,433.14 claim for transportation, meals, and hotel accommodations as defence counsel are based in Toronto within commuting distance of the trial without which they would have paid for their own meals and accommodation. However, I shall allow a modest award for witness and other transportation costs that I accept are reasonable to award in this case. After removing the disallowed expenses, I find that the plaintiff should pay the defence a total of $68,000.00 in disbursements.
[42] Taking everything into account, I find that the defendants should have partial-indemnity costs fixed at $236,000.00 (i.e., $168,000.00 + $68,000.00), inclusive of taxes and disbursements. In my view, this is a just and proportionate award of costs that the plaintiff should reasonably have contemplated in all the circumstances.
Outcome
[43] Accordingly, the plaintiff shall pay the defendants $236,000.00 in costs for the action.
Date: August 19, 2026 M.T. Doi J.
CITATION: Brown v. Bramalea City Centre et al., 2026 ONSC 4603
COURT FILE NO.: CV-09-1924
DATE: 2026 08 19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Collington Brown, Plaintiff
AND:
Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Waugh, Defendants
BEFORE: M.T. Doi J.
COUNSEL: Atrisha Lewis, Todd Pribanic-White, and Richard De Almeida, for the Plaintiff
Maya M. Kanani and Jordan Conway, for the Defendants
COSTS ENDORSEMENT
M.T. Doi J.
DATE: August 19, 2026
1Notably, the plaintiff served a written offer to settle the action on December 17, 2025 (i.e., the eve of trial) that proposed a settlement for over $2 million.
2See Case Center B-2-341 to B-2-342.
3The summary judgment motion brought by the former defendant Hudson’s Bay Company commenced on November 16, 2011 and the motion decision was released January 12, 2012 (i.e., for a delay of about 2 months). The trial adjournments granted by LeMay J. (i.e., from the October 2023 to the October 2024 trial sittings), Shaw J. (from the October 2024 to the January 2025 trial sittings), and Tzimas RSJ (from the January 2025 to the January 2026 trial sittings), respectively, resulted in a collective delay of about 27 months from the adjournments.
4The plaintiff completed his discovery on September 23, 2010, whereas Ms. Mercadante, Ms. Whitworth, Mr. Waugh, and Mr. McGrath were examined on June 1-3, 2011, Mr. Magnaye was examined April 20, 2015, and Ms. Balne McWaters was examined April 23, 2019. I am mindful that the plaintiff did not move to strike Ms. Balne McWaters’ defence until February 19, 2019.
5Brown v. Hudson’s Bay Company, 2014 ONSC 6166 (Div Ct).
6The trial was adjourned on three (3) occasions. See the endorsements of LeMay J. dated October 16, 2023, L. Shaw J. dated October 25, 2024, and Tzimas RSJ dated December 13, 2024, respectively.
7Case Center B-3-266 to B-3-368.
8See: https://lso.ca/about-lso/careers/working-with-the-law-society/expressions-of-interest and https://lso.ca/about-lso/careers/working-with-the-law-society/expressions-of-interest/fee-schedule