Caroline C. Failes

The plaintiffs' counsel brought a motion for an order appointing a litigation guardian for the plaintiff, who was pursuing a medical negligence claim.

The plaintiff's mental health had deteriorated, and he refused to undergo a capacity assessment.

The court found the plaintiff to be a person under disability, incapable of providing instructions for the litigation.

The court appointed the Public Guardian and Trustee as the plaintiff's litigation guardian, validated substituted service, dispensed with service of supporting materials on the defendant, and discontinued the co-plaintiff's claim without costs.

The court determined the appropriate scale and quantum of costs following an earlier order that the defendants pay the plaintiffs’ “costs thrown away” after a trial adjournment.

The plaintiffs sought substantial indemnity costs and claimed over $79,000 in counsel time plus law clerk fees, reduced by 30 percent for reusable trial preparation work.

The court held that substantial indemnity costs were not justified because neither a Rule 49 offer to settle nor sanctionable conduct was present.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, fairness, and reasonableness.

The court fixed partial indemnity costs for counsel at $50,000 plus HST and allowed only disbursements that would need to be incurred again, declining to award law clerk costs at this stage.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal allowed the appeal in part and varied the order below in accordance with the agreement of the parties.

No costs were ordered.