Frederick v. Van Dusen, 2018 ONSC 106

CITATION: Frederick v. Van Dusen, 2018 ONSC 106

DIVISIONAL COURT FILE NO.: 17-0155

DATE: 2018/01/05

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Robert Frederick and Janice Presley, Plaintiffs (Appellants)

AND

Jack Van Dusen and Leeds, Grenville and Lanark District Health Unit, Defendants (Respondents)

BEFORE: Madam Justice R. Ryan Bell

COUNSEL: Matthew E. Wright, Counsel for the Plaintiffs (Appellants)

Zach Flemming-Giannotti, Counsel for the Defendant (Respondent) Jack Van Dusen

Alex Robineau, Counsel for the Defendant (Respondent) Leeds, Grenville and Lanark District Health Unit

HEARD: In writing

decision on costs

[1] In my written reasons on the appeal and Mr. Van Dusen’s cross-appeal, I invited the parties to make written submissions on costs in the event they were unable to resolve that issue. Submissions have been received from all parties.

[2] Mr. Van Dusen’s position is that he was entirely successful on the appeal and “beat” his offer to settle; he seeks his partial and substantial indemnity costs in the amount of $8,175. The Health Unit seeks its costs on a partial indemnity basis in the amount of $6,910. For their part, the plaintiffs maintain that there should be no order as to costs; they argue that success was divided and that the issue of law was a novel one.

[3] As the Court of Appeal stated in Boucher v. Public Accountants Council for the Province of Ontario, in fixing costs, the objective is to fix an amount that is fair and reasonable, having regard to the range of factors in Rule 57.01 of the Rules of Civil Procedure, for the unsuccessful party to pay, rather than an amount fixed by the successful party’s actual costs (2004 14579 (ON CA), [2004] O.J. No. 2634).

Mr. Van Dusen’s Costs

[4] Mr. Van Dusen was successful on the appeal; I dismissed his motion for leave to appeal the Deputy Judge’s award of costs.

[5] As for the scale of costs, Mr. Van Dusen served two Rule 49 offers to settle the appeal and the proposed cross-appeal. In the first, Mr. Van Dusen offered that (i) the plaintiffs withdraw their appeal against Mr. Van Dusen on a without costs basis; and (ii) Mr. Van Dusen withdraw the cross-appeal. The plaintiffs did not serve an offer to settle.

[6] I find that Mr. Van Dusen obtained a result on the appeal at least as favourable as the terms of his June 21, 2017 offer to settle. Rule 49.10 does not speak to the case where an action is dismissed or an appeal from the judgment of a Deputy Judge is dismissed. However, the discretion to award costs on a substantial indemnity scale is found in the general language of Rule 57.01(1) (S & A Strasser Ltd. v. Town of Richmond Hill, 1990 6856 (ON CA), [1990] O.J. No. 2321 (C.A.)). I am satisfied that in the circumstances of this case, Mr. Van Dusen is entitled to his costs in relation to the appeal on a partial indemnity basis for the period prior to June 21, 2017 and on a substantial indemnity basis thereafter.

[7] I am not prepared to award Mr. Van Dusen any costs in relation to the proposed cross-appeal.

[8] Mr. Van Dusen’s bill of costs does not distinguish between time spent on the appeal and time spent on the proposed cross-appeal. The bill of costs discloses that Mr. Van Dusen’s lawyers spent over 65 hours for appeal and cross-appeal preparation up to the date of the offer to settle. The time spent includes 8.6 hours by very senior counsel. The appeal was not complex; the legal issue was narrow. In my view, the total amount of time spent up to June 21, 2017 is excessive, even allowing for the fact that a portion of the time spent was in relation to the proposed cross-appeal. Another 10 hours is claimed for the period from June 21, 2017 through to the hearing of the appeal.

[9] As for the amount of costs the unsuccessful party could reasonably expect to pay, I have considered that the plaintiffs claimed $25,000, plus interest and costs, from Mr. Van Dusen and the Health Unit, on a joint and several basis. Based on my review of the plaintiffs’ bill of costs, it appears they incurred costs of $4,400 up to the date of Mr. Van Dusen’s offer to settle. For the period from June 21, 2017 through the hearing of the appeal, the plaintiffs incurred additional costs of $1,500.

[10] Having regard to the factors in Rule 57.01 and the principles in Boucher, I have determined that it is fair and reasonable to fix the costs payable by the plaintiffs to Mr. Van Dusen as follows:

• partial indemnity costs up to June 21, 2017 in the amount of $4,000, inclusive of HST;

• substantial indemnity costs from June 21, 2017 in the amount of $1,000, inclusive of HST; and

• disbursements of $125.00, inclusive of HST.

The Health Unit’s Costs

[11] There can be no doubt that the Health Unit was the successful party on the appeal. The plaintiffs chose to add the Health Unit as a defendant to their claim. The Deputy Judge dismissed the plaintiffs’ claim against both defendants and awarded costs to both defendants. The appeal was against both defendants and dismissed against both defendants. The Health Unit is entitled to its costs of the appeal on a partial indemnity basis.

[12] The plaintiffs take the position that the submissions on behalf of Mr. Van Dusen and the Health Unit were duplicative and that joint submissions or a division of labour would have resulted in a cost saving. While there may have been some overlap in the submissions, the plaintiffs elected to add the Health Unit as a party to the action. In their notice of appeal, the plaintiffs requested that the Deputy Judge’s judgment be set aside and a new trial ordered as against both defendants. On appeal, the plaintiffs also requested that the order as to costs be set aside and that they be awarded their costs at trial and on appeal. The Health Unit was entitled to be separately represented at the appeal.

[13] That said, the Health Unit’s bill of costs discloses that its lawyers spent over 53 hours in connection with the appeal. In my view, the amount of time spent is excessive given the narrow legal issue on the appeal.

[14] As for the amount of costs the unsuccessful party could reasonably expect to pay, I have considered that the plaintiffs’ claim was for $25,000 against Mr. Van Dusen and the Health Unit, on a joint and several basis. I have also considered that the plaintiffs incurred costs of $5,900, inclusive of Mr. Van Dusen’s cross-appeal.

[15] Having regard to the factors in Rule 57.01 and the principles in Boucher, I have determined that it is fair and reasonable to fix the costs payable by the plaintiffs to the Health Unit in the amount of $4,000, inclusive of HST, together with disbursements of $237.52, inclusive of HST.

Summary

[16] Mr. Van Dusen’s costs of the appeal and his proposed cross-appeal, inclusive of HST and disbursements, in the amount of $5,125.00 are to be paid by the plaintiffs to Mr. Van Dusen within 30 days.

[17] The Health Unit’s costs of the appeal, inclusive of HST and disbursements, in the amount of $4,237.52 are to be paid by the plaintiffs to the Health Unit within 30 days.

Madam Justice R. Ryan Bell

Date: January 5, 2018

CITATION: Frederick v. Van Dusen, 2018 ONSC 106

DIVISIONAL COURT FILE NO.: 17-0155

DATE: 2018/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Robert Frederick and Janice Presley, Plaintiffs (Appellants)

AND

Jack Van Dusen and Leeds, Grenville and Lanark District Health Unit, Defendants (Respondents)

BEFORE: Madam Justice R. Ryan Bell

COUNSEL: Matthew E. Wright, Counsel for the Plaintiffs (Appellants)

Zach Flemming-Giannotti, Counsel for the Defendant (Respondent) Jack Van Dusen

Alex Robineau, Counsel for the Defendant (Respondent) Leeds, Grenville and Lanark District Health Unit

reasons for decision

RYAN BELL J.

Released: January 5, 2018