Federal Court Decisions

Date: 20100719

Docket: T-1238-02

Citation: 2010 FC 751

Ottawa, Ontario, July 19, 2010

PRESENT:     The Honourable Mr. Justice Zinn

BETWEEN:

ESEMUEDE HENRY IDADA

Plaintiff

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

[1]        In my Reasons for Judgment issued March 26, 2010, in this matter, I retained jurisdiction with respect to costs.  The trial had been bifurcated and the parties informed the Court that a determination on the costs might facilitate their agreement on damages.  Both parties have filed submissions which I have reviewed with care.

[2]               The plaintiff sued the defendant for damages for his alleged illegal detention and search, his alleged assault and battery, and an alleged slander.  The slander allegation was dropped at the commencement of trial.  I found that the plaintiff’s detention and search was justified and thus no damages flowed from those actions.  I found that the plaintiff had suffered a battery and assault by agents of the defendant and that damages would follow for that conduct. 

[3]               The defendant submits that it should be awarded its costs, subject to a 25% reduction because it was the successful party overall.

[4]               The plaintiff seeks his costs on a solicitor-client basis, or alternatively, on a party and party basis, or in the final alternative based on Column III of Tariff B.

[5]               While there is some merit to the defendant’s submission in that it was successful in two of the three causes of action, I am not prepared to award the defendant its costs.  The slander allegation took no time at trial and appears to have taken little pre-trial time.  The allegations of illegal detention and search took some considerable trial time; however, the evidence led on this aspect of the claim was often intertwined with that led to support the assault and battery claim.  It was one of a continuous series of events. 

[6]               As was noted by the defendant, it is a general rule that costs follow the event and that a successful party should not be penalized because not all of its points were accepted by the Court:  Sunrise Co. v. The “Lake Winnipeg”, [1988] F.C.J. No. 1009 (FCA).  The plaintiff’s allegations of an illegal detention and search were not frivolous or vexatious or clearly lacking in merit.  He ought not to be penalized because those claims failed to succeed.

[7]               On the other hand, the plaintiff is not entitled to his costs on a solicitor client basis.  The conduct of the defendant and its counsel at trial were unobjectionable.  The defences advanced were not clearly lacking in merit; in fact they were successful in part; however, some of the time at trial was taken with defendant witnesses whose evidence was of marginal assistance to the Court.

[8]               The plaintiff incurred disbursements of $4,199.31, inclusive of G.S.T.  They appear to the Court to have been reasonably incurred and he is entitled to recover them. 

[9]               The plaintiff incurred legal fees, inclusive of G.S.T. of $98,961.98.

[10]           The plaintiff advises that there are no relevant offers to settle.

[11]           The action was of importance to the plaintiff; he is a proud man.

[12]           Considering the factors set out in Rule 400(3) and acknowledging that costs are a matter of discretion for the trial judge, it is my determination that the plaintiff is entitled to a lump sum award of costs in the amount of $37,500.00, inclusive of fees, disbursements, and GST with respect to the trial of this action to date. 

[13]           An Order for Security for Costs dated July 8, 2004, was obtained by the defendant against the plaintiff.  The plaintiff was required to pay into Court the amount of $5,000.00 as security for the defendant's costs.  In light of the disposition of this action, the plaintiff is entitled to a return of the funds paid into Court.

ORDER

THIS COURT ORDERS that:

1. The plaintiff is awarded his costs to date, fixed in the amount of $37,500.00, inclusive of fees, disbursements, and GST; and

2. The plaintiff is to be paid out of court the sum of $5,000.00 deposited on November 18, 2004 representing security of costs, plus any accrued interest accumulated thereon.

    “Russel W. Zinn”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1238-02

STYLE OF CAUSE:                          ESEMUEDE HENRY IDADA v.

                                                            HER MAJESTY THE QUEEN IN RIGHT OF CANADA

PLACE OF HEARING:                    Toronto, Ontario

DATES OF HEARING:                    November 30, 2009; December 1, 2, 3, 4, and 7, 2009

REASONS FOR ORDER

AND ORDER:                                   ZINN J.

DATED:                                             July 19, 2010

APPEARANCES:

SOLICITORS OF RECORD: