Substantial indemnity costs appropriate given effect of unproven allegations of serious impropriety

Ontario civil | Civil Practice and Procedure | Costs | Costs of particular proceedings

Plaintiffs were parents and daughter who brought action against another student and vice president of school. Defendants served jury notice. One juror fell ill so procedural matters were dealt with in juror’s absence. When trial resumed, juror reported inability to serve due to anxiety so was discharged and parties agreed to continue with five jurors. Court workers reported plaintiff father gesturing to plaintiff daughter when she was in witness box and during her cross-examination, she suddenly produced cell phone and began playing audio recording of meeting that she surreptitiously made. Defendants brought successful motion to discharge jury. Parties made submissions on costs. Plaintiff father and mother were ordered to pay costs to defendants in amount of $201,155.36, inclusive of fees, disbursements and HST, on joint and several basis, and plaintiff daughter’s liability was capped at $100,000 of total costs. Case was appropriate for substantial indemnity costs because of combined effect of unproven allegations of serious impropriety on part of defendants, plaintiffs’ unrelenting insistence in correctness of their position, and manner in which plaintiffs’ counsel conducted trial. There was no reduction in costs sought on account of plaintiffs’ alleged impecuniosity. Plaintiff daughter was not jointly and severally liable with her parents for full amount of costs.

Hajrizi v. Ottawa Carleton District School Board (2018), 2018 CarswellOnt 20271, 2018 ONSC 6644, Martin James J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 7262, 2018 ONSC 2649, Martin James J. (Ont. S.C.J.).

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