Court of Appeal for Ontario

Citation: Whitfield v. Whitfield, 2016 ONCA 720 Date: 2016-09-30 Docket: C58883

Before: Weiler, van Rensburg and Roberts JJ.A.

Between:

Dr. Agnes Jane Whitfield Plaintiff/Defendant by Counterclaim (Respondent)

and

Bryan Whitfield Defendant/Plaintiff by Counterclaim (Appellant)

Counsel: Marie Henein, Matthew Gourlay and Christine Mainville, for the appellant Dr. Agnes Whitfield, acting in person

COSTS ENDORSEMENT

[1] On July 15, 2016, this court allowed the appeal and awarded the appellant his partial indemnity costs of the appeal in the amount of $50,000. The parties had not made any submissions to this court as to the appropriate disposition of the trial costs and were invited to provide written submissions.

[2] We have received and reviewed the parties’ further written submissions. These are our reasons disposing of the trial costs in light of the successful appeal. We also correct an error with respect to the costs of the appeal.

Trial costs

[3] The appellant claims trial costs in the amount of $202,742.49, which figure includes fees of $142,865.50, disbursements of $42,719.24 and applicable HST.

[4] The respondent submits that the appellant should not be awarded any costs of the trial because he did not provide any dockets or particulars of his costs.

[5] Typically, a costs award after trial is made following the submission of a bill of costs in Form 57A, which anticipates that copies of dockets and invoices for disbursements will be attached. In this case, the parties were directed by this court that if they could not agree on costs, they were to forward written submissions of no more than five pages, including a costs outline.

[6] A costs outline, in the form of Form 57B, does not require copies of dockets and invoices, but does require the party seeking costs to set out sufficient detail for the various claimed fee items, the names of the persons providing services in connection with each item, together with their year of call, their hours, a partial indemnity rate and an actual rate.

[7] The appellant’s counsel in this case provided three pages of costs submissions and a brief costs outline that stated in respect of “Fees” that trial counsel, called to the bar in 1992, had spent 732 hours on the litigation from May 2002 to the conclusion of trial in May 2014, indicated an actual hourly rate of $195 and asserted a partial indemnity rate of $300 to $350 per hour. The claim for fees was $142,865.50 plus HST (the actual fees billed at the rate of $195 per hour). Disbursements were itemized in the costs outline, for a total of $42,719.24 in claimed disbursements, including HST.

[8] While it could be said that the appellant complied with the minimum requirements of Form 57B in the costs outline that was provided, we agree with the respondent that there is insufficient detail to properly assess certain aspects of the claim for fees incurred by trial counsel. That said, the respondent does not seriously contest the number of hours that trial counsel spent on the litigation. Rather, she attacks certain aspects of the fees that we will address below.

[9] The failure to provide detailed references to steps taken in the litigation will in some circumstances affect the recovery of costs. There is no general principle, however, that a party will be denied his or her costs for failure to provide dockets. Rather, a party who does not provide enough information to explain the hours spent or the steps undertaken runs the risk that costs will not be allowed or will be reduced for lack of clarity and explanation.

[10] In our view, in the particular circumstances of this case, dockets and further particulars were not required to allow for a meaningful review of most of the claimed costs and to justify counsel’s docketed time of 732 hours. We also accept that no fees were claimed for the second trial counsel who acted as second chair for much of the trial.

[11] The nature and length of these proceedings warranted the 732 hours of docketed time. The present case stretched out ten years before trial with dozens of pre-trial steps and proceedings. The trial lasted 24 days: many witnesses were called, including three expert witnesses; cross-examinations were lengthy; the issues, as noted by the trial judge, were complicated, involving the difficult area of recovered memory, and the concomitant aspects of credibility and reliability of witnesses with which the trial judge had to grapple.

[12] We would not accept the appellant’s submission that the respondent wasted court time. However, the respondent did raise issues and call witnesses in relation to issues that were irrelevant and unsuccessful at trial, as the trial judge noted. She also called the majority of lay and expert witnesses and spent the most time cross-examining witnesses.

[13] The time spent at trial on those matters was driven by the respondent; and therefore it had to be within her reasonable contemplation that the appellant’s trial costs would increase as a result. Having caused those costs to be incurred, she cannot now object to compensating the successful party for them.

[14] It must also be remembered that the respondent made serious and damaging allegations of abuse against her brother. It was perfectly reasonable for the appellant, a retired teacher, on whom the respondent’s accusation of sexual abuse would have been particularly hard, to put forward a vigorous defence and counterclaim in order to protect and salvage his reputation. While the respondent was entitled to her day in court, she could not be surprised that the appellant would fiercely oppose her claim. The appellant did so in a measured and proper way. It is commendable that he was able to secure counsel at such a reasonable rate.

[15] In addition to all of the other factors under r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, it is helpful to look at the trial costs requested by the respondent and awarded by the trial judge. We recognize that the respondent’s costs are not determinative of what costs are reasonable, fair and proportionate. However, the respondent’s costs nevertheless provide assistance with the determination of those overarching factors, as well as with the question of the costs that should have been within the respondent’s reasonable contemplation to pay if unsuccessful.

[16] The respondent claimed costs in the amount of $150,680.52 for fees and disbursements. The trial judge estimated that approximately $55,731.60 of this amount on a partial indemnity basis denoted a self-representation counsel fee sought by the respondent.

[17] The trial judge awarded costs to the respondent of $97,000, calculated as follows: $50,000 partial indemnity pre-trial legal fees; $5,000 substantial indemnity counsel fee to the respondent; and total disbursements in the amount of $42,000.

[18] When factoring in the fees charged by the respondent’s previous lawyers and what the respondent would have expected to pay in legal fees if she had not been self-represented through most of these proceedings, the respondent’s claimed trial costs are comparable to those claimed by the appellant. Accordingly, the appellant’s costs should have been within the respondent’s reasonable contemplation to pay if she were unsuccessful.

[19] The appellant was entirely successful on his appeal. The respondent’s claim was dismissed and his counterclaim was allowed. The appellant is therefore entitled to his reasonable trial costs. We accept as the point of departure that trial counsel spent 732 hours on this matter.

Partial, substantial or full indemnity costs?

[20] The appellant seeks full payment of his trial counsel’s actual fees on the basis that his trial counsel’s hourly rate was so low that it amounts to a partial indemnity rate.

[21] The respondent submits that the appellant has effectively claimed his costs on a full indemnity basis and that there is no reason to allow this level of costs in this case.

[22] We agree with the respondent’s submission. Unless full indemnity costs are warranted, it would be an error in principle to grant an award of costs said to be on a partial indemnity basis that is virtually the same as an award on a substantial or full indemnity basis. The appellant’s argument has been previously rejected by this court: see, Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 36; Wasserman, Arsenault Ltd. v. Sone, 2002 CanLII 45099 (ON CA), 164 O.A.C. 195 (C.A.), at para. 4; 790668 Ontario Inc. v. D’Andrea Management Inc., 2015 ONCA 557, 336 O.A.C. 383, at paras. 21-23.

[23] To order otherwise would remove the distinction between partial indemnity and substantial or full indemnity costs and overcompensate the appellant. Partial indemnity costs are simply that: partial and not full compensation for a party’s costs. Substantial indemnity provides far greater compensation and full indemnity results in complete reimbursement for costs. As a result, absent applicable settlement offers, substantial and full indemnity costs are reserved for rare and exceptional cases.

[24] Is this one of those rare and exceptional cases where substantial or full indemnity costs are justified? We do not understand the appellant to be arguing that substantial or full indemnity costs should be awarded.

[25] Other than the submissions concerning the respondent’s raising irrelevant issues that served to lengthen the trial, the appellant does not argue that the respondent engaged in the kind of reprehensible or frivolous conduct that would warrant substantial or full indemnity costs.

[26] Certainly, it would be difficult to make such an argument having regard to the trial judge’s commendation of the manner in which the respondent represented herself at trial and his conclusion that both the respondent and the appellant were equally compelling and credible as witnesses.

[27] Accordingly, the appellant is entitled to his reasonable, fair and proportionate partial indemnity costs, in an amount which should have been in the respondent’s reasonable contemplation to pay if she were unsuccessful at trial.

What amount of partial indemnity costs should be awarded?

[28] According to the respondent, as a first step, the appellant’s claimed costs should be discounted by 40% to arrive at partial indemnity costs of $85,719.

[29] What discount should be applied is within the discretion of the court and not a matter of a precise mathematical calculation. As this court noted in Wasserman, at para. 5:

The degree of indemnification intended by an award of partial indemnity has never been precisely defined. Indeed, a mechanical application of the same percentage discount in every case where costs are awarded on a partial indemnity scale would not be appropriate. In fixing costs, courts must exercise their discretion, with due consideration of the factors set out in rule 57.01(1), in order to achieve a just result in each case.

[30] While we agree that a discount to the appellant’s costs should be made to reflect his costs on a partial indemnity basis, the 40% proposed by the respondent is excessive in the circumstances of this case.

[31] In our view, a discount of 20% of the appellant’s claimed fees is appropriate to achieve a just result in this case. We agree with the appellant’s submission that his counsel’s rate was unusually low for his lawyer’s years of experience, the ten years that he carried this brief without an increase of his hourly rate, and the complexity of this action. Accordingly, as a starting point, we would fix the appellant’s partial indemnity fees in the amount of $114,292.40, plus the applicable HST.

[32] The respondent submits that the appellant’s partial indemnity costs should be subject to the following further deductions:

(i) a reduction of 32.1% to reflect the costs associated with a bilingual proceeding; (ii) an exclusion of the costs of two motions which were determined in the respondent’s favour; (iii) an exclusion of costs related to court time and resources wasted by the appellant and his counsel; and (iv) an exclusion of unnecessary disbursements of $38,516.99.

[33] We shall consider each of those items in turn.

(i) Costs of a bilingual proceeding

[34] The respondent submits that there were additional costs unnecessarily incurred as a result of the appellant requiring interpretation services during the bilingual trial because he does not understand the French language. She maintains that it would be unfair to require her to pay for those costs as it would be tantamount to punishing her for exercising her right to a bilingual proceeding.

[35] We disagree.

[36] First, there is no evidence to support the respondent’s estimates of the time allegedly spent on interpretation during the trial, which, at almost a third of the trial, are excessive and not borne out by the trial transcript.

[37] Second, this was a bilingual civil proceeding pursuant to s. 126 of the Courts of Justice Act. As a result, each party had the respective right to lead evidence and make submissions in French or English, and receive the assistance of an interpreter, if required.

[38] Finally, any extra trial time taken up with interpretation is no different than any other step in a trial. There is no evidence that the appellant or his counsel were improperly using interpreters or otherwise wasting trial time.

[39] An examination of the trial transcript demonstrates that the trial was lengthy because of the number of witnesses called, including expert witnesses, and their cross-examinations, not because of the interpretation. All of this is normal trial time. The successful party, the appellant, is entitled to his reasonable costs for the trial, without any deduction to reflect the fact that he required the services of an interpreter.

(ii) Costs of the two motions in the respondent’s favour

[40] The respondent claims the $2,500 in costs awarded to her on January 20, 2012.[^1] She also claims costs for her successful motion to adjourn the trial to allow the respondent to review the opinion provided by an expert for the appellant, Dr. Slako.

[41] We agree that the amount of $2,500 that was awarded to the respondent by Edwards J. in his January 20, 2012 ruling must be deducted from the appellant’s costs, and that the appellant would not be entitled to costs in respect of this motion. In the absence of any details provided by the appellant demonstrating that the costs of this motion are not included in his claim for costs, we would deduct a total of $5,000 from the appellant’s costs to reflect the respondent’s success on this motion.

[42] With respect to the second motion, the appellant and not the respondent is entitled to the costs associated with the respondent’s motion to adjourn the trial. In his November 21, 2011 ruling, Edwards J. commented negatively on the respondent’s lack of co-operation to submit to a defence medical examination and stated that it was with the “greatest of reluctance” that he acceded to the respondent’s request for an adjournment. The adjournment was clearly an indulgence and hardly the kind of success that would displace the appellant’s right to his costs of the action, including this motion.

(iii) Wasted court time and resources

[43] The respondent has provided a schedule in which she submits that 14.73 hours were wasted by the appellant or his counsel in such actions as, for example, looking for documents or taking too long to answer questions. We disagree. There is no evidence to substantiate the respondent’s calculation. Moreover, none of the actions described can be fairly characterized as anything other than part of the normal vicissitudes of any trial.

[44] Second, the respondent submits that she should not have to pay any costs related to the appellant’s motion to require her to submit to a defence medical examination because the motion was withdrawn without explanation in October 2011.

[45] We do not accept this submission.

[46] Where a motion is abandoned, the responding party is ordinarily entitled to costs forthwith, unless the court orders otherwise: r. 37.09(3). This is an appropriate case to order otherwise.

[47] The respondent’s continued and unreasonable refusal to submit to a defence medical examination was the subject of negative comment by Edwards J., as already noted. On November 21, 2011, Edwards J. ordered that the respondent attend a defence assessment to be organized by defence counsel and to be conducted by either a female psychiatrist or a female psychologist of the choosing of the defence. However, as the trial judge commented, the respondent frustrated the defence assessment.

[48] In these circumstances, where the appellant should not have been required to bring a motion to compel the respondent’s attendance and the motion was withdrawn in the interest of not delaying the trial, the appellant is entitled to his costs related to this issue.

(iv) Unnecessary disbursements

[49] The respondent submits that the claimed disbursements associated with the transcription of the bilingual trial, and with the services of Bob Woodman, and the appellant’s expert, Dr. Brian Hoffman, were excessive and unnecessary.

[50] We agree with the appellant’s second point only.

[51] First, the transcripts referenced in the appellant’s costs outline are the transcripts from the examinations for discovery. They are a proper and recoverable disbursement.

[52] Second, we agree with the respondent that the description in the appellant’s costs outline for $3,980.40 paid to Bob Woodman “to interview witnesses”, is insufficient to recover this amount as a disbursement. As the respondent points out, there is no indication of Mr. Woodman’s qualifications, hours spent or hourly rate. While interviewing of potential witnesses for a trial, whether or not they are ultimately called to testify, is part of trial preparation, in order to be considered as a disbursement (for example as an agent’s or investigator’s fee), more detail is required.

[53] Finally, there is no basis for the objection to the disbursement paid to Dr. Brian Hoffman. His expert’s report and testimony at trial were required in order to respond to the respondent’s expert, Dr. Maddocks. He was required to spend the time to review the respondent’s records and other documents because she unreasonably refused to attend for a medical examination. His report was also required to support the appellant’s defamation claim, which was successful on appeal. The respondent spent four days cross-examining him. The appellant is entitled to this disbursement.

Conclusion

[54] What then are the reasonable, fair and proportionate trial costs that the respondent should be required to pay to the appellant?

[55] For all of these reasons, we fix the appellant’s partial indemnity trial costs as follows: $109,292.40 plus HST of $14,208.01 for fees and $38,738.84 for disbursements, for a total of $162,239.25, including the applicable HST. The respondent shall pay the amount of $162,239.25 to the appellant within 60 days of the release of these reasons.

Appeal costs

[56] In para. 81 of the appeal judgment, we stated that the appellant sought $50,000 in partial indemnity costs. That was incorrect. The appellant sought $50,000 for fees but also $16,683.65[^2] for disbursements.

[57] The appellant’s disbursements are appropriate and reasonable, and we allow them in full.

[58] Accordingly, our previous order is amended as follows:

i. The appellant is entitled to his partial indemnity appeal costs of $66,683.65, inclusive of all amounts.

ii. The respondent shall have 60 days from the release of these reasons to pay the additional amount of $16,683.65. Interest on that amount, if unpaid, shall not start to run until 60 days from the release of these reasons.

“K.M. Weiler J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

[^1]: The respondent erroneously states that she was awarded these costs following a successful motion to have a bilingual trial; however, in his January 20, 2012 ruling, Edwards J. noted that the parties agreed that the trial should proceed as a bilingual proceeding and awarded $2,500 in costs to the respondent as a result of her preparation in response to the appellant’s preliminary motion dealing with the issue as to whether the trial had commenced on November 21, 2011. [^2]: By letter dated March 18, 2016, appellant’s counsel advised that the appellant’s disbursements on the appeal were $5,000 less than claimed in the costs outline as a result of the subsequent receipt of an administrative refund.