Court File and Parties

COURT FILE NO.: CV - 00-199551 DATE: 20170718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, ROBERT HABERLE, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, WILLIAM A. McDOUGALL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone) Plaintiffs

– and –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants

Counsel: Joel P. Rochon and Peter R. Jervis for the Plaintiffs William D. Black and Sam Rogers for the Defendants Elliott Thompson Barker and Gary J. Maier Sara Blake and Meagan Williams for the Defendant Her Majesty the Queen in Right of Ontario

HEARD: In writing

PERELL, J.

Reasons for Decision - Costs

[1] The Plaintiff Shauna Taylor, formerly Vance Egglestone, was and is an involuntary patient at the Mental Health Centre in Penetanguishene, Ontario, where she was originally detained in January 1976, at the Oak Ridge Division. In 2000, pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, Ms. Taylor commenced a proposed class action against the Defendants Dr. Elliott Thompson Barker, Dr. Gary J. Maier, and the Province of Ontario (Her Majesty the Queen in Right of Ontario) (“the Crown”), which operated Oak Ridge.

[2] In 2001, Danny Joanisse, who as teenager was detained as an involuntary patient at Oak Ridge, was added as a co-Plaintiff to the proposed class action.

[3] In the proposed class action, the Plaintiffs sued: (1) the Defendants for breach of fiduciary duty; (2) Drs. Barker and Maier for assault and battery; and (3) the Crown for negligence in respect of its failure to supervise Drs. Barker and Maier.

[4] In 2006, after the unsuccessful appeal of the order refusing certification, Ms. Taylor and Mr. Joanisse brought a motion to continue the action as a multi-plaintiff proceeding. In 2013, the co-Plaintiffs brought a motion to add five more plaintiffs. The result was that there was ultimately 31 co-Plaintiffs.

[5] Earlier this year, the Defendants brought a summary judgment motion to resolve whether the claims of the 31 co-Plaintiffs in the multi-plaintiff proceeding were statute-barred.

[6] At the time of the Defendants’ summary judgment motion, there was also a pending summary judgment motion/summary trial brought by the Plaintiffs that was to be heard later depending on the outcome of the Defendants’ motion. If the Defendants’ motion was successful, the Plaintiffs’ summary judgment motion/summary trial might be moot.

[7] By the time of the Defendants’ summary judgment motion, the examinations for discovery of the 31 Plaintiffs had been completed. The Plaintiffs’ record for their own summary judgment motion/summary trial included affidavits by all 31 Plaintiffs and affidavits from the Plaintiffs' experts.

[8] After I had frozen the record for the Defendants’ summary judgment motion, the Plaintiffs delivered a nine-volume record for their summary judgment motion/summary trial. To prepare this record, the Plaintiffs used eight lawyers, six law clerks and a student, for a total of 1,576 hours.

[9] The Defendants were cross-examined for the summary judgment motion in lieu of examinations for discovery.

[10] I dismissed the Defendants’ motion and instead granted a notional cross-motion by the Plaintiffs for a partial summary judgment of their claim for breach of fiduciary duty, and I ordered a trial or additional summary judgment motions to prove victimization, harm, causation of harm and to quantify the individual Plaintiffs’ damages, if any. See Barker v. Barker, 2017 ONSC 3397.

[11] Subject to the perfection of their individual claims, I found that the Defendant doctors breached their fiduciary duties towards the Plaintiffs, that the breach of fiduciary duty claim was not statute-barred, and that the Crown was vicariously liable for the doctors’ breach of fiduciary duty.

[12] The Plaintiffs now seek costs on a partial indemnity scale in the amount of $666,301.31 (inclusive of applicable taxes) and disbursements in the amount of $155,278.77, for a total award of $821,580.08 payable forthwith.

[13] The Plaintiffs seek costs on a partial indemnity scale on the following basis:

1. fees of $30,250 for the productions motion and other ancillary steps (Bill of Costs, Item 1);
2. fees of $172,423.18 (inclusive of disbursements) for the discoveries of the 31 Plaintiffs (being 50% of the fees and disbursements for these examinations on the basis that 50% of these costs relate to liability with 50% relating to damages to be reserved (Bill of Costs, Item 2);
3. fees of $93,484 for the cross-examinations of the Defendant doctors, which were also in lieu of examinations for discovery of the Defendants (Bill of Costs, Item 3);
4. fees of $3,757.50 for review of the Defendants' materials for their summary judgment motion (Bill of Costs, Item 4);
5. fees of $21,010.50 for preparation of responding materials to the Defendants' motion for summary judgment (Bill of Costs, Item 5);
6. fees of $2,012 for review of reply materials of the Defendants' motion for summary judgment (Bill of Costs, Item 6);
7. fees $228,430.50 for preparation of Plaintiffs' materials in response to the Defendants' motion and for the cross-motion for summary judgment/summary trial on liability (Bill of Costs, Item 7);
8. fees of $29,865 for attendance on the motions for summary judgment (Bill of Costs, Item 8);
9. fees of $8,414.50 for the preparation of the Bill of Costs (Bill of Costs, Item 9);
10. disbursements of $155,278.77 (Bill of Costs, Item 10); and
11. HST of $91,917.27.

[14] The Defendants, who delivered joint responding submissions, submit that the Plaintiffs should be awarded $50,655 for the summary judgment motion that was actually argued.

[15] The Defendants submit that the Plaintiffs have included claims for motions and steps in the proceeding that had nothing to do with the summary judgment motion that was actually argued, which motion by court order had a frozen evidentiary record.

[16] The Defendants submit that the Plaintiffs’ claims for the costs of the other steps should be addressed at the final adjudication of this matter.

[17] Further, the Defendants submit that the Plaintiffs staggeringly over-lawyered the summary judgment motion; for example: six lawyers reviewed the Defendants’ factums; seven lawyers and a law clerk prepared the Plaintiffs’ factum; eight lawyers and two law clerks prepared to attend the hearing of the summary judgment motion; and two lawyers and two law clerks prepared the Bill of Costs and costs submissions.

[18] The Defendants submit that, in contrast to the Plaintiffs’ expenditures for the summary judgment motion, the Crown’s preparation time comprised 90 hours and the Defendant doctors’ partial indemnity costs totaled $65,836.

[19] The Defendants submit that the breakdown for an award of $50,655 to the Plaintiffs is as follows:

1. fees of $3,106 (not $3,757.50) for review of the Defendants' materials for their summary judgment motion (Bill of Costs, Item 4);
2. fees of $18,240 (not $21,010.50) for preparation of responding materials to the Defendants' motion for summary judgment (Bill of Costs, Item 5);
3. fees of $1,967.09 (not $2,012) for review of reply materials of the Defendants' motion for summary judgment (Bill of Costs, Item 6);
4. fees of $2,482 (not $29,865) for attendance on the motions for summary judgment (Bill of Costs, Item 8);
5. fees of $2,000 (not $8,414.50) for the preparation of the Bill of Costs (Bill of Costs, Item 9); and
6. disbursements of $500 for the copying of the factum and the book of authorities (not $155,278.77) (Bill of Costs, Item 10) because the balance of the disbursements are not related to the summary judgment motion that was actually argued.

[20] For the reasons that follow, I award the Plaintiffs costs of $282,504.34 on a partial indemnity basis payable forthwith.

[21] By way of explanation for this award:

1. The Plaintiffs are not entitled to the fees of $30,250 for the productions motion and other ancillary steps (Bill of Costs, Item 1). This claim relates to a motion heard by Justice Cullity in which the Plaintiffs were unsuccessful.
2. The Plaintiffs are not entitled, at this juncture, for the fees of $172,423.18 (inclusive of disbursements) for the discoveries of the 31 Plaintiffs (Bill of Costs, Item 2). This claim is premature and is dismissed without prejudice to the outcome of the action. In other words, this claim for costs remains in the cause.
3. The Plaintiffs are entitled to $65,058.50 for Items 4, 5, 6, 8 and 9. i. The Defendants concede that the Plaintiffs are entitled to $50,155 for these items but notwithstanding that the Defendant doctors alone would have claimed partial indemnity costs of $65,836 for the motion, they submit that the Plaintiffs over-lawyered the matter and that their claim for costs is excessive. ii. I disagree. Regardless of the number of lawyers who worked on the file, the claim for Items 4, 5, 6, 8 and 9 are reasonable and within the reasonable expectations of the unsuccessful party.
4. The Plaintiffs are entitled to fees of $150,591.63 comprised of: (a) fees of $93,484 for the cross-examinations of the Defendant doctors (Bill of Costs, Item 3); and (b) fees of $57,107.63 (not $228,430.50) for preparation of Plaintiffs' materials in response to the Defendants' motion and for the cross-motion for summary judgment on liability (Bill of Costs, Item 7). i. Practically speaking, the effect of the Plaintiffs’ success on the Defendants’ summary judgment motion was to make the Defendants’ evidence irrelevant to the completion of the action, which will focus on each individual Plaintiff proving that he or she was victimized and proving the quantum of any consequent damages. ii. The Defendants are entitled to put the 31 Plaintiffs to the proof of their individual cases, but the Defendants no longer have the substantive defences that the Plaintiffs’ claims are statute-barred or that what the Defendants did was not a breach of fiduciary duty. iii. In other words, the effect of the summary judgment motion is that the Defendants’ defences have been dismissed, but the Plaintiffs must perfect their individual claims. Thus, the Plaintiffs are entitled to the costs associated with taking the substantive defences out of the action. iv. The associated costs are fees of $93,484 for the cross-examinations of the Defendant doctors and a portion of the $228,430.50 for preparing for the summary judgment motion, which portion I estimate to be 25% of $228,430.50; i.e., $57,107.63.
5. The Plaintiffs are entitled to $28,034.52 for the HST on the fees for Items 3, 4, 5, 6, 7, 8, and 9 (13% of $215,650.13).
6. The Plaintiffs are entitled to $38,819.69 for disbursements inclusive of HST (25% of the disbursements of $155,278.77). This proportion of the disbursements has the same rationale as the costs associated with taking the substantive defences out of the action.

[22] Order accordingly.

Perell, J. Released: July 18, 2017