Court File and Parties

COURT FILE NO.: 07-49133 DATE: 2020-02-26 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Paul Bruno, Martha Bruno, Mary Catherine Bruno, Paul John Bruno by his Litigant Guardian, Paul Bruno, Jake Bruno under the age of 18 by his Litigation Guardian Paul Bruno

Gregory P. McKenna and Sabrina L. Seibel, for the Plaintiffs

Plaintiffs

- and -

Joshua Dacosta, Guy Gibson, Daniel Ashenden, Terry Empey, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services, The Niagara Detention Centre, Wendy Southall as the Chief of Police of the Niagara Regional Police Service, Police Officers Jane Doe and John Doe, the Niagara Regional Police Services Board, the Corporation of Regional Municipality of Niagara and William Shilson

Ian MacLeod and Robert Trenker, for the Defendant, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services

Defendants

RULING ON COSTS

P. R. SWEENY J.

INTRODUCTION

[1] After nine days of trial and extensive written submissions, I released my Reasons for Judgment in this matter. I found the defendant, Her Majesty the Queen in Right of the Province of Ontario, liable to the plaintiffs. I found the plaintiff, Paul Bruno, contributorily negligent to the extent of 15%.

[2] The parties were not able to agree on costs. I have received written submissions from the plaintiffs, the defendant, and reply submissions from the plaintiffs.

[3] The plaintiffs seek costs and disbursements in the total amount $407,074.81. The defendant asserts the plaintiffs should recover $166,365.99.

RELEVANT LEGAL PRINCIPLES

[4] In Armstrong v. Gallagher’s Garage Ltd., 2018 ONSC 5929, Mew J. articulated the relevant legal principles with respect to costs at paras 6-9 as follows:

[6] The usual rule in Ontario is that costs follow the event. This is subject to the overarching discretion of the court to determine by whom and to what extent costs should be paid: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).

[7] Rule 57.01 of the Rules of Civil Procedure provides specific guidance on the exercise of the court’s discretion to award costs. Costs are usually payable on a partial indemnity scale unless the Rules of Civil Procedure provide for, or the circumstances of the case warrant, costs on an enhanced (substantial indemnity or full indemnity) scale.

[8] The principle of proportionality is one of general application to the interpretation of the Rules of Civil Procedure (rule 1.04(1.1)) and therefore applies to the application of the rules governing costs. As a general proposition: (i) proportionality does not override other considerations when determining costs; and (ii) proportionality should not be used as a sword to undercompensate a litigant for costs legitimately incurred: Aacurate General Contracting Ltd. v. Tarasco, 2015 ONSC 5980, at paras. 13-17; Dang v. Anderson, 2017 ONSC 2150, paras. 12-15.

[9] Fixing of costs is not merely a mechanical exercise in reviewing the receiving party’s costs outline: Agius v. Home Depot Holdings Inc., 2011 ONSC 5272 at para. 11. The amount of costs should reflect an amount that the court considers to be fair and reasonable and within the expectations of the parties, rather than an exact measure of the actual costs of the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 19 A.C.W.S. (3d) 341 (Ont. C.A.) at para. 4; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

ISSUES

[5] The defendant has raised a number of issues with the costs claimed. These include: (a) costs are only payable to a successful party on a partial indemnity basis at 60 percent of full indemnity; (b) the plaintiffs cannot claim costs incurred in pursuing different defendants who agreed to a dismissal without costs prior to trial and played no role in the trial; (c) the plaintiffs cannot claim costs incurred by different plaintiffs who agreed to a without costs dismissal; (d) no costs can be awarded for prior interlocutory events; (e) the amounts claimed are excessive; and (f) the costs award should be reduced as a result of a finding of contributory negligence on the part of the plaintiff, Paul Bruno. I shall address each of the issues below.

OFFERS TO SETTLE

[6] I begin by observing that the plaintiffs made an offer to settle in this matter for $1.2 million ten days prior to trial. However, the parties agreed that the trial would proceed on liability only. They agree that the plaintiffs’ offer would not have the cost consequences under Rule 49 of the Rules of Civil Procedure. The defendant’s offer to settle the matter with a payment of $150,000 all inclusive. As a result of my finding, and the parties agreement that the damages would be $1.5 million dollars, the plaintiffs did better than their offer. However, given the agreement of the parties, it is inappropriate for the plaintiffs to be entitled to substantial indemnity costs. The plaintiffs are entitled to their costs on a partial indemnity basis.

PARTIAL INDEMNITY RATES

[7] On the issue of partial indemnity costs, the plaintiffs seek to set the hourly rates in accordance with the prior costs grid. This is consistent with recent Superior Court decisions which have used the prior costs grid adjusted for inflation to determine what might be considered appropriate partial indemnity rates for work done by counsel of different years’ experience (see for example, Namchim v. Green, 2019 ONSC 6245). In the circumstances of this case, I find this is an appropriate method to arrive at partial indemnity rates. In accordance with the costs grid, and the experience of counsel, I set the hourly rates on a partial indemnity basis as follows: Mr. Smye - $400.00 per hour; Mr. McKenna - $300.00 per hour; Ms. Seibel - $200.00 per hour; Articling students – $100.00 per hour.

[8] The fact that the defendant was able to arrange to pay counsel at a very economical rate is not binding on the plaintiffs. The partial indemnity rates set out above are, in my view, within the reasonable expectation of the defendant.

[9] With respect to the time spent by Agro, Zaffiro, the amount claimed, $12,900, is the actual amount of the accounts. It should be reduced to $7,700 in accordance with the 60 percent rule for partial indemnity rates as compared to full indemnity rates.

THE TIME SPENT WITH RESPECT TO CLAIMS AGAINST THE DEFENDANTS WHO CONSENTED TO A DISMISSAL WITHOUT COSTS

[10] The time spent with respect to Niagara Regional Police included the examination for discovery. Insofar as there was a certain amount of time devoted specifically to that matter, including the preparation and attendance at examination for discovery, I reduce 15 hours of Mr. McKenna’s time at $300.00 per hour or $4,500.

[11] The defendant objects to the plaintiffs’ claim associated with OHIP’s subrogated claim. Plaintiffs are required under the laws of the Province of Ontario to pursue OHIP subrogated claim. In any event, approximately two hours were spent communicating with respect to that matter, I will allow a reduction of $600.00.

PLAINTIFFS CLAIMS RESOLVED PRIOR TO TRIAL

[12] I accept that the time spent with respect to the claim for Paul Sr. alone was really only the time spent on the discovery. He was also litigation guardian for some time. Accordingly, a reduction of three hours of Mr. Smye’s time is reasonable for that period. There was very little time spent on Mary’s claim, and reduction of one hour is reasonable for $400.00 per hour. This results in a $1,600.00 reduction.

NO COSTS FOR PRIOR INTERLOCUTORY MOTIONS

[13] I agree that a plaintiff cannot recover for interlocutory motions for which no costs were awarded. The plaintiffs claim $1,333.50 for Agro, Zaffiro and $8,223.00 for Mackesy Smye for status hearings, interlocutory motions, and research. I see no reason why status hearings would not be recoverable as they are required as part of the court process. I deduct 70 hours at $100.00 per hour or $7,000.00 for the motions. Agro, Zaffiro’s time is reduced by $800.00 on a partial indemnity basis.

[14] With respect to travel time, I agree travel time should not be recoverable at full rates. I have reviewed the dockets and find that about 20 hours of Mr. McKenna’s time is attributable to travel and about 15 hours of Ms. Seibel. Therefore, there will be a reduction of $3,000 for Mr. McKenna and $1,500 for Ms. Seibel (50 percent).

OVERALL REASONABLENESS OF FEES

[15] After considering the specific reductions outlined above, and looking at the amounts claimed as a whole, I fix the partial indemnity costs of the plaintiffs at $52,000.00 for fees exclusive of a trial preparation, trial attendance and submissions. This includes the time allocated to other pre-trial steps as set out in the plaintiffs’ Bill of Costs.

[16] With respect to issue of the trial costs, the defendant has asserted the plaintiffs claim is 907.02 hours in relation to the trial while the defendant claimed a total of 431 hours. I have reviewed the defendant’s bill of costs. I observe that with respect to trial attendance, 228.08 hours were claimed but a fee of $5,600.00 per day was allowed resulting in a total of $50,400.00. Given the billable hourly rates of one counsel of $176.00 per hour and the other at $75.00 per hour, the amount claimed would be the equivalent of approximately 400 hours. The trial attendance claimed by the defendant is $16,000 more than claimed by the plaintiffs notwithstanding the plaintiffs had significantly higher hourly rates. The time claimed by the defendant for experts should be included in the trial time (73.8 hours). This would result in approximately 680 hours, not the 431 claimed.

[17] With respect to trial preparation, I fix the amount of trial preparation at $75,000. In my view, that is a reasonable reflection of the additional work required by the plaintiffs in pursuing this action. It is proportionate.

[18] I fix the trial costs at $33,900.00 which includes the time for attendance and trial preparation during the course of the trial.

[19] I fix an additional $50,000 for written submissions.

[20] This is a total, by my calculation, of $210,900.00.

[21] I find this is a reasonable amount. It is proportional and within the reasonable expectation of the defendant based on the time spent and the reasonable hourly rates. This is not a simple mathematical calculation but is based on my review of the dockets and the work done.

[22] In the result, the plaintiffs are entitled to $210,900.00 on account of fees for the conduct of the action plus HST of $27,417.00 for a total of $238,317.00.

NO REDUCTION FOR CONTRIBUTORY NEGLIGENCE

[23] The defendant asserts that the costs should be reduced by 15 percent as a result of the finding of contributory negligence.

[24] Rule 57.01(1)(c), expressly includes “the apportionment of liability” as one of the many factors “the court may consider” in exercising its general cost discretion. In addition, section 7 of the Negligence Act, R.S.O. 1990, c. N.1, as amended, reads as follows:

Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just.

[25] In Stilwell v. World Kitchen Inc, 2013 ONSC 5360, I. F. Leach J. identified several considerations that play into whether a plaintiff’s costs should be discounted to reflect a finding of contributory negligence:

• Whether the plaintiff’s own contribution to the accident and resulting injuries was minimal or substantially contributed to the need for litigation;
• Whether addressing the plaintiff’s contributory negligence substantially increased the costs of litigation, because additional ordinary and expert evidence was required; and
• Whether the parties’ respective positions on the issue of contributory negligence prior to trial materially affected the chances of settlement.

[26] Applying these considerations, the finding of 15% contributory negligence is a clear indication that the plaintiff’s contribution to his injuries were minimal. The contributory negligence did not contribute to the need for litigation.

[27] The issue of the conduct of the plaintiff was relevant and a factor taken into consideration in determining liability as a whole. This was not a case where there was an issue of a seatbelt defence or some other discrete act of the plaintiff which occupied a portion of the trial time. There was no additional expert evidence required for this issue.

[28] Given the position of parties, the contributory negligence issue did not materially affect the chances of settlement.

[29] There shall be no reduction for contributory negligence.

THE DISBURSEMENTS

[30] The plaintiffs seek disbursements of $113,024.81 inclusive of tax. The plaintiffs acknowledge that there was a $1,500 duplication for an account from the expert, Dr. Weinrath. That amount will be deducted.

[31] The defendant objects to the plaintiffs’ claim for costs incurred for Dr. Weinrath. These relate to travel expenses which were incurred as a result of Dr. Weinrath returning home and coming back to give his evidence. The defendant objects to the amounts claimed for airfare, hotel, and meal expenses in the amount of $5,263.64. Dr. Weinrath was an important witness for the plaintiffs. His evidence was extended over a weekend period. In my view, it was reasonable to anticipate he would travel back and forth over the weekend rather than stay that whole time. The total amount claimed for return airfare transportation, to and from the airport, meals, and overnight accommodations, I fix at $5,000.00.

[32] The defendant objects to the total amount claimed for experts. The plaintiffs incurred significant expenses for experts. The plaintiffs have the obligation of proving the case and retained experts on a variety of issues including general damages, economic loss and future care, which were resolved prior to the trial. The plaintiffs are entitled to recover those amounts. The plaintiffs were required to prepare the experts for trial in advance of the trial. The fact that the damages issue was resolved by a negotiation led to a reduction in the amount of trial and a reduction in the ultimate amount of expert fees. I find the amounts claimed for the experts, including their preparation is reasonable.

[33] I have reviewed the list of disbursements and there are disbursements claimed for service of motion records which would not be properly recoverable. In addition, in my view, it is not reasonable to pay for parking and mileage for counsel. After looking at all of the amounts claimed, I reduce it by $6,261.47 inclusive of HST.

[34] I award the plaintiffs $105,000 all-inclusive for disbursements.

CONCLUSION

[35] In the result, the defendant shall pay the plaintiffs the costs of this claim fixed in the amount of $343,317.00.

Sweeny J.

Released: February 26, 2020