The higher-than-expected monetary damages awarded to a victim of a Catholic priest is costing the church even more money.
That's because of the way recovery of court costs are determined in Ontario, in situations where one side offers to settle the case before a ruling is made.
If the side that made the offer to settle loses the case, and the damages awarded is far bigger than the offer to settle, then the losing side has to pay court costs for the winner at a higher rate.
The case centred on Father William Hodgson Marshall, who was convicted in 2011 of abusing 17 students at schools over a 38-year period.
Marshall, who worked in Rochester, Toronto, Windsor, Sudbury and Sault Ste. Marie, was reported a total of six times over his career but continued in his role as a priest and teacher. He died in 2014.
One of his victims, Roderick Macleod, was awarded more than $2.5 million in April of this year after a lengthy court case. Macleod had been abused while he was a St. Charles College student from 1963-67. The amount included $500,000 in punitive damages, as well as $1.588 million for loss of income.
The Basilians have paid Macleod $484,000 but are appealing the punitive damages and the income loss award. The size of the award was a surprise, and because their offer to settle was much smaller, the rules say they are liable for much higher “substantial indemnity costs,” as opposed to lower “partial indemnity costs.”
The goal of the rule is to encourage parties to settle as early on as possible, and for parties making an offer to settle to be reasonable. By making costs higher for lowball offers, it acts as an incentive to make a fair offer.
But lawyers for the priests argued that the size of the damages award was much bigger than anyone expected, so they shouldn't be punished for the fact their offer was lower.
“The defendant argues, however, that the circumstances of the case warrants the exercise of my discretion to award costs prior to the date of the offer on a partial indemnity basis in the interests of justice,” the court transcript says.
But the judge disagreed, saying the purpose of the rule is to make it easier for victims to come forward. And a previous ruling said the church “must bear the responsibility of the reprehensible conduct of the clergy defendant.”
“I see no reason in the circumstances of the instant case to deprive the plaintiff of his entitlement to costs throughout on a substantial indemnity basis, at law or by statute,” the judge concluded.
He granted legal costs of almost $300,000 be awarded, adding to the amount the Basilians must pay as a result of the case.