Brown v. Hudson's Bay Co. et al., (2014) 325 O.A.C. 61 (DC)

• Judge: Price, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 02, 2014
• Jurisdiction: Ontario
• Citations: (2014), 325 O.A.C. 61 (DC);2014 ONSC 5079

Brown v. Hudson's Bay Co. (2014), 325 O.A.C. 61 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. SE.022

Collington Brown (plaintiff/moving party) v. The Hudson's Bay Company (HBC), Linda Mercadante, Jane Doe a.k.a. Laura, Bramalea City Centre, Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Waugh (defendants/respondents)

(CV-09-1924; 2014 ONSC 5079)

Indexed As: Brown v. Hudson's Bay Co. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Price, J.

September 2, 2014.

Summary:

Brown brought an action to recover damages for injuries he sustained in a struggle with mall security guards. He claimed he was falsely arrested and that the guards used excessive force, thereby assaulting him. Daley, J., made an order requiring Brown to pay $30,000 into court as security for the defendants' costs of discoveries and a pre-trial conference. Brown moved for leave to appeal.

The Ontario Divisional Court, per Price, J., in a decision not reported in this series of reports, granted leave to appeal. Brown sought costs of the motion. At issue was (1) whether the costs of the motion for leave to appeal should be ordered paid at this time, or should be ordered paid "in the cause" and left to the discretion of the panel of the Divisional Court hearing the appeal; and (2) if costs should be ordered paid at this time, the amount of costs that should be paid.

The Ontario Divisional Court, per Price, J., ordered the remaining defendants in the action to pay Brown his costs fixed at $4,135 and payable within 30 days.

Practice - Topic 7364

Costs - Party and party costs - Costs of interlocutory proceedings - Costs of motions or applications - Brown brought an action to recover damages for injuries he sustained in a struggle with mall security guards - He claimed he was falsely arrested and that the guards used excessive force, thereby assaulting him - Daley, J., made an order requiring Brown to pay $30,000 into court as security for the defendants' costs of discoveries and a pre-trial conference - Price, J., granted Brown leave to appeal, holding that allowing the decision to stand could deny Brown access to justice and create uncertainty as to who bore the onus, in a motion for security for costs, of demonstrating that the action did or did not have merit - This would tend to undermine a plaintiff's access to justice - Price, J., further held that a finding that Brown's action was frivolous and vexatious, based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act was conducted in a lawful manner and with reasonable force - Brown sought costs of the motion - At issue was, inter alia, whether the costs of the motion for leave to appeal should be ordered paid at this time, or should be ordered paid "in the cause" and left to the discretion of the panel of the Divisional Court hearing the appeal - The Ontario Divisional Court, per Price, J., ordered that the costs of the motion for leave to appeal be paid at this time - To defer a decision regarding Brown's costs of his application for leave to appeal would tend to have the same effect as the security for costs order - Further, an order for "costs in the cause", by depriving Brown of the resources he needed now to secure adequate representation for the hearing of his appeal, could end a possibly meritorious case based on his ability to pay - This was an access to justice issue - See paragraphs 8 to 39.

Practice - Topic 7364

Costs - Party and party costs - Costs of interlocutory proceedings - Costs of motions or applications - Brown brought an action to recover damages for injuries he sustained in a struggle with mall security guards - He claimed he was falsely arrested and that the guards used excessive force, thereby assaulting him - Daley, J., made an order requiring Brown to pay $30,000 into court as security for the defendants' costs of discoveries and a pre-trial conference - Price, J., granted Brown leave to appeal, holding that allowing the decision to stand could deny Brown access to justice and create uncertainty as to who bore the onus, in a motion for security for costs, of demonstrating that the action did or did not have merit - This would tend to undermine a plaintiff's access to justice - Price, J., further held that a finding that Brown's action was frivolous and vexatious, based solely on the fact that there were lawful grounds for his arrest, would devalue the equally important question of whether his arrest under the Trespass to Property Act was conducted in a lawful manner and with reasonable force - Brown sought costs of the motion in the amount of $9,401.20 - The Ontario Divisional Court, per Price, J., ordered the remaining defendants in the action to pay Brown his costs on a party and party basis fixed at $4,135 - These included 35 hours of legal work at $100 per hour, HST and disbursements of $180 - See paragraphs 40 to 68.

Practice - Topic 7372

Costs - Costs of interlocutory proceedings - Payment forthwith - [See first Practice - Topic 7364 ].

Practice - Topic 8337

Costs - Appeals - Costs of appeal - Leave to appeal - [See both Practice - Topic 7364 ].

Practice - Topic 8889.1

Appeals - Leave to appeal - Costs - [See both Practice - Topic 7364 ].

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 10, footnote 2].

Fellowes, McNeil v. Kansa General International Insurance Co. et al. (1997), 49 O.T.C. 339; 37 O.R.(3d) 464; 1997 CanLII 12208 (Gen. Div.), refd to. [para. 11, footnote 3].

1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757; 2006 CanLII 35819 (C.A.), refd to. [para. 11, footnote 4].

Hamilton-Wentworth (Regional Municipality) v. Hamilton-Wentworth Save the Valley Committee Inc. et al. (1985), 11 O.A.C. 8; 51 O.R.(2d) 23; 1985 CanLII 1957 (Div. Ct.), refd to. [para. 11, footnote 4].

Standard Life Assurance Co. v. Elliott et al., [2007] O.T.C. Uned. 965; 86 O.R.(3d) 221; 2007 CanLII 18579 (Sup. Ct.), refd to. [para. 11, footnote 4].

Reynolds v. Kingston Police Services Board et al. (2007), 225 O.A.C. 112; 86 O.R.(3d) 43; 2007 ONCA 375, refd to. [para. 11, footnote 4].

Somers v. Fournier et al. (2002), 162 O.A.C. 1; 60 O.R.(3d) 225; 2002 CanLII 45001 (C.A.), refd to. [para. 11, footnote 4].

Fong v. Chan (1999), 128 O.A.C. 2; 46 O.R.(3d) 330; 1999 CanLII 2052 (C.A.), refd to. [para. 11, footnote 4].

Skidmore v. Blackmore (1995), 122 D.L.R.(4th) 330; 1995 CanLII 1537 (B.C.C.A.), refd to. [para. 11, footnote 4].

Andersen et al. v. St. Jude Medical Inc. et al. (2006), 208 O.A.C. 10; 264 D.L.R.(4th) 557 (Div. Ct.), refd to. [para. 12, footnote 5].

Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R.(3d) 638; 2005 CanLII 1042 (C.A.), refd to. [para. 12].

Zesta Engineering Ltd. v. Cloutier et al., [2002] O.A.C. Uned. 288; 119 A.C.W.S.(3d) 341 (C.A.), refd to. [para. 12].

Murano v. Bank of Montreal (1998), 111 O.A.C. 242; 41 O.R.(3d) 222; 1998 CanLII 5633 (C.A.), refd to. [para. 12].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 2004 CanLII 14579; 71 O.R.(3d) 291 (C.A.), refd to. [para. 12].

Taske Technology Inc. v. PrairieFyre Software Inc., [2003] O.T.C. Uned. 10 (Sup. Ct.), refd to. [para. 16, footnote 6].

Theodorou v. Bruno (2007), 161 A.C.W.S.(3d) 695 (Sup. Ct.), refd to. [para. 16, footnote 6].

Axton v. Kent et al. (1991), 49 O.A.C. 32; 2 O.R.(3d) 797 (Div. Ct.), refd to. [para. 16, footnote 7].

Serra v. Serra, [2009] O.A.C. Uned. 256; 66 R.F.L.(6th) 40; 2009 ONCA 395, refd to. [para. 17, footnote 8].

Wilson v. Brilliant and Lorimer (2007), 172 A.C.W.S.(3d) 965; 2007 ONCJ 277, refd to. [para. 19, footnote 10].

Proulx v. Viau, 2009 ONCJ 159, refd to. [para. 19, footnote 10].

Cole v. Cole and Howell (No. 3) (2007), 157 A.C.W.S.(3d) 349; 2007 ONCJ 198, refd to. [para. 20, footnote 11].

Marini v. Muller, [2000] O.T.C. Uned. E63 (Sup. Ct.), refd to. [para. 21, footnote 12].

Hanemaayer et al. v. Freure et al., [2004] O.T.C. 940; 2004 CanLII 34935 (Sup. Ct.), refd to. [para. 24, footnote 13].

Curran Farm Equipment Ltd. v. Deere (John) Ltd., [2010] O.T.C. Uned. 4125; 2010 ONSC 4125, refd to. [para. 26, footnote 15].

Société Sepic S.A. v. Aga Stone Ltd. et al. (1995), 77 O.A.C. 306; 21 O.R.(3d) 542; 1995 ONCA 1891, refd to. [para. 27, footnote 17].

Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 29 O.A.C. 357; 65 O.R.(2d) 433; 28 C.P.C.(2d) 231 (C.A.), refd to. [para. 29, footnote 18].

Hsueh v. Alderland Group Inc. et al., [2011] O.T.C. Uned. 4976; 2011 ONSC 4976, refd to. [para. 36, footnote 21].

Tanner v. Clark et al. (2002), 164 O.A.C. 228; 24 C.P.C.(5th) 68 (Div. Ct.), affd. (2003), 169 O.A.C. 152; 224 D.L.R.(4th) 635 (C.A.), leave to appeal refused (2003), 326 N.R. 195; 194 O.A.C. 195; 230 D.L.R.(4th) vi (S.C.C.), refd to. [para. 36, footnote 21].

Sheppard et al. v. McKenzie et al., [2009] O.T.C. Uned. L04; 2009 CanLII 46175 (Sup. Ct.), refd to. [para. 38, footnote 23].

Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 2003 CanLII 8279 (Ont. S.C.), refd to. [para. 40, footnote 25].

Davies v. Clarington (Municipality) et al. (2009), 254 O.A.C. 356; 100 O.R.(3d) 66; 2009 ONCA 722, refd to. [para. 40, footnote 25].

Bell Canada v. Olympia & York Developments Ltd. et al. (1994), 70 O.A.C. 101; 17 O.R.(3d) 135 (C.A.), refd to. [para. 45, footnote 28].

131843 Canada Inc. v. Double "R" Toronto Ltd. (1992), 7 C.P.C.(3d) 15 (Ont. C.J.), refd to. [para. 57, footnote 30].

Moon v. Sher et al. (2004), 192 O.A.C. 222; 246 D.L.R.(4th) 440 (C.A.), refd to. [para. 58, footnote 31].

Jhaj v. York University, [2002] O.T.C. 24; 16 C.P.C.(5th) 324 (Sup. Ct.), refd to. [para. 59, footnote 32].

Fazio v. Cusumano et al., [2005] O.T.C. Uned. 868; 2005 CanLII 33782 (Sup. Ct.), refd to. [para. 60, footnote 33].

Abrams v. Abrams et al., [2009] O.A.C. Uned. 268; 2009 CanLII 23375 (Div. Ct.), refd to. [para. 62, footnote 35].

Fernicola et al. v. Creview Development Inc. et al., [2009] O.A.C. Uned. 57; 2009 CanLII 492 (Div. Ct.), refd to. [para. 63, footnote 36].

Authors and Works Noticed:

Costs Sub-Committee of the Rules Committee, Information for the Profession Bulletin, generally [para. 48, footnote 29].

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), pp. 4-5 [para. 36, footnote 21]; 4-6, fn. 38 [para. 36, footnote 21]; para. 408.16.1 [para. 26, footnote 16].

Counsel:

Collington Brown, self-represented;

Barry Cox (assisted by Nicola Brankley, Student-at-law), for the defendants/repondents,  Bramalea  City  Centre,  Canstar Security Services Inc., Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and Raphael Wauch.

This matter was heard by Price, J., of the Ontario Divisional Court, who delivered the following costs endorsement on September 2, 2014.