Court File and Parties

CITATION: Kahn v. The Scarborough Hospital, 2010 ONSC 257

COURT FILE NO.: 445/09

DATE: 20100111

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Khan v. The Scarborough Hospital

Before: Swinton J.

Counsel: Lisa Constantine for Dr. Khan John J. Morris for the Medical Advisory Committee Paula Trattner for the Board of Directors of the Hospital

Heard at Toronto: in writing

COSTS ENDORSEMENT

[1] Both the Medical Advisory Committee (“MAC”) and Dr. Khan seek costs of a motion for a stay of proceedings. Alternatively, Dr. Khan argues that no costs should be awarded, or the amount awarded to the MAC should be reduced.

[2] In my decision, I dismissed Dr. Khan’s motion to stay a hearing of the Executive Committee of the Board of Directors of the Hospital, then scheduled to commence September 30, 2009. The hearing, scheduled to continue for four days, was to determine whether the September 25, 2008 recommendation of the MAC to terminate Dr. Khan’s hospital privileges should be accepted.

[3] While I declined to stay the hearing, I adopted a suggestion made in the MAC’s factum and ordered that the Executive Committee not release its decision until an urgent application for judicial review was determined. That application was to be scheduled before November 30, 2009. In fact, it was determined on December 3, 2009, and the application was dismissed.

[4] In my view, the MAC was largely successful on the motion for a stay. Dr. Khan’s major argument was that the hearing of the Executive Committee should not proceed at all until his application for judicial review was determined. He was not successful in achieving that relief, and the hearing was allowed to proceed. The only restriction on the Committee was to delay release of its decision until the pending application for judicial review was determined. Therefore, the MAC was largely successful on the motion, and costs should follow the event.

[5] The MAC seeks $19,441.61 in costs on a partial indemnity basis, arguing the costs were elevated, in part, because this motion was brought on very short notice. In contrast, Dr. Khan sought costs of $9,459.11 for this motion.

[6] In awarding costs, the principle of indemnity is one factor to consider. So, too, are the reasonable expectations of the unsuccessful party with respect to the costs payable for this step in the proceeding. One measure of reasonable expectations is the costs incurred by the unsuccessful party.

[7] This was not a legally complex motion, and the facts were not particularly complex. In my view, a fair and reasonable amount for costs is $9,500.00.

[8] Therefore, I order costs to the MAC in the amount of $9,500.00 inclusive of GST and disbursements, payable by Dr. Khan within 30 days.

Swinton J.

Released: January , 2010