Court File and Parties

COURT FILE NO.: CV-14-500951 DATE: 20240730 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RUTH KIDANE, Plaintiff AND: CITY OF TORONTO and ITALIAN WALK OF FAME INCORPORATED, Defendants

BEFORE: VERMETTE J.

COUNSEL: Ruth Kidane, self-represented Heather Paterson and Sam Zucchi, for the Defendant City of Toronto

HEARD: In writing

Endorsement as to Costs

[1] On April 29, 2024, I released Reasons for Judgment (2024 ONSC 2484) granting the action in part and ordering the Defendant City of Toronto (“City”) to pay to the Plaintiff $45,000.00 in general damages, $4,000.00 for loss of income and $161.05 for out-of-pocket expenses, i.e., a total of $49,161.05.

[2] The parties were not able to agree on costs. The City delivered costs submissions on May 24, 2024. The Plaintiff did not deliver any costs submissions within the time set out in the last paragraph of my Reasons for Judgment. The Plaintiff was given a second opportunity to deliver costs submissions and was advised that if she did not do so by the new deadline, I would decide the issue of costs without her input. The Plaintiff has not delivered costs submissions. [1]

[3] This is my decision on costs.

1. Position of the City

[4] The City’s position is that the Plaintiff should be awarded no costs and that the City should be awarded costs in the amount of $88,979.02 or, alternatively, $72,062.03, based on offers to settle made by the City on March 23, 2022 and March 14, 2023. In the alternative, the City argues that the Plaintiff should only be granted costs on a partial indemnity basis up to March 23, 2022 (or, alternatively, March 14, 2023), and that the City should be granted its partial indemnity costs subsequent to March 23, 2022 (or, alternatively, March 14, 2023).

[5] The City submits that the Plaintiff should be denied any costs of the action pursuant to Rule 76.13(2) of the Rules of Civil Procedure because she obtained judgment for a monetary award that was well below the simplified procedure cap at the relevant time, i.e., $100,000.00. In light of the findings made by this Court, the City argues that it was unreasonable for the Plaintiff to bring this action under the ordinary procedure. The City states that parties are obligated to re-evaluate their damages and consider whether to bring their claim into simplified procedure. It points out that the Plaintiff had nine years to do so or face costs consequences.

[6] The City notes that the Plaintiff has the onus of establishing any legal costs and disbursements being claimed, but she did not file any costs submissions. As a result, costs should be denied to the Plaintiff. The City brings to the Court’s attention that the Plaintiff’s former lawyers have obtained a charging order for their disbursements of $25,937.21 and their full legal costs of $53,930.38. The City submits that these amounts have not been assessed nor proved as recoverable, they are on a full indemnity basis, and they are disproportionate to the amount of damages awarded and the legal costs to the City.

[7] The City argues that the Plaintiff’s conduct during the litigation and at trial unduly lengthened the action and trial. The City points out that the Plaintiff sought numerous extensions or time and adjournments prior to trial. The City submits that, at trial, the Plaintiff was often unprepared, caused unnecessary delays and consistently requested further adjournments. The City states that a heavier burden was placed on it at trial to make up for the Plaintiff’s lack of counsel.

[8] The City relies on two offers to settle that it served on the Plaintiff and that were neither accepted nor withdrawn:

a. On March 23, 2022, the City made an offer to settle to the Plaintiff which included an offer to pay the Plaintiff the sum of $100,000.00 – inclusive of all damages, interest, costs, disbursements, OHIP’s subrogated claim and applicable taxes – in exchange for the dismissal of the action on a without costs basis and a full and final release in a standard form. [2]

b. On March 14, 2023, the City made an offer to settle to the Plaintiff which included an offer to pay to the Plaintiff: (a) the sum of $116,704.56, inclusive of all damages and interest, and (b) the Plaintiff’s assessable disbursements and legal costs and HST (as agreed or assessed) on a partial indemnity, in exchange for the dismissal of the action on a without costs basis and a full and final release in a standard form. [3]

[9] The City’s position is that both offers are more favourable than the judgment obtained by the Plaintiff at trial. It submits that the requirement in the offers that a standard release be signed is not a future unknown that prevents the offers from qualifying as a Rule 49.10 offer because such a requirement is a legally cognizable term. According to the City, Rule 49 allows for the City to be awarded its partial indemnity costs incurred since March 23, 2022 (in the amount of $88,979.02) or, in the alternative, since March 14, 2023 (in the amount of $72,062.03). The City submits that it should be awarded costs in recognition of its sincere efforts to resolve the claim and avoid a trial.

[10] In the alternative, the City states that the Court may exercise its discretion with respect to costs under Rule 49.13 and take into account any offer to settle made in writing. The City submits that the offers to settle should be considered to have the same effect as a Rule 49.10 offer.

2. Discussion

a. The Plaintiff is not entitled to costs

[11] I agree with the City that the Plaintiff is not entitled to costs, principally for two reasons. First, the Plaintiff has failed to make a claim for costs and to provide any support for such claim. The charging order obtained by the Plaintiff’s former counsel does not constitute a claim for costs by the Plaintiff. Further, and in any event, the charging order cannot form the basis of an order for costs as the only information that is before this Court is the two figures in the charging order (for disbursements and fees) without any explanation or support. Among other things, the following required information is missing: the nature of the disbursements incurred, the number of lawyers involved, the actual and partial indemnity rates of the lawyers involved, the time spent by the lawyers, how much time was spent on various tasks, etc. In the absence of such information, it is not possible for this Court to determine what a fair and reasonable award of costs would be in the circumstances of this case.

[12] Second, the Plaintiff is prevented from recovering any costs pursuant to Rule 76.13(2) of the Rules of Civil Procedure. She was awarded damages that totaled less than 50% of the simplified procedure cap at the relevant time. In my view, it was not reasonable for the Plaintiff to have continued the action under the ordinary procedure in light of the lack of evidentiary support (including expert evidence) for her various claims: see Rule 76.13(3).

b. The City’s offers to settle do not trigger costs consequences under Rule 49.10

[13] I now turn to the City’s offers to settle. I conclude that they do not trigger the costs consequences set out in Rule 49.10 of the Rules of Civil Procedure.

[14] In D’Anscenzo v. Nichols, 2018 ONSC 7760 (“D’Anscenzo”), it was found that the insertion of a requirement for a release to be negotiated and agreed upon in the future as a term of an offer to settle introduced a future unknown beyond the control of the offeree. [4] Kane J. stated that the issue before him was not the enforceability of a settlement, and that the case law dealing with releases not agreed upon as part of a settlement did not diminish the need for certainty under Rule 49.10 as to whether an offer attracts the higher scale of costs. He ultimately concluded that the release condition in the offer to settle prevented the offer from qualifying as a Rule 49.10 offer: see D’Anscenzo at paras. 27-28, 38-40. See also Skafco Limited v. Abdalla, 2020 ONSC 5437 at para. 2 and Zou v. Sanyal, 2019 ONSC 1661 at paras. 7-10.

[15] Given the doctrine of horizontal stare decisis, I cannot depart from the decision in D’Anscenzo: see R. v. Sullivan, 2022 SCC 19 at paras. 73-75. [5] Consequently, I conclude that the release condition in the City’s offers to settle prevents the offers from qualifying as Rule 49.10 offers.

[16] Nevertheless, I may take into account the City’s offers to settle in exercising my discretion with respect to costs in this case: see Rule 49.13 of the Rules of Civil Procedure.

c. The City is entitled to some costs

[17] In my view, the City is entitled to some costs in light of the circumstances of this case.

[18] The City had admitted liability prior to trial. The only issues at trial were causation and damages. The monetary damages ultimately awarded to the Plaintiff represents approximately 4% of the sum that the Plaintiff was seeking at trial, and approximately 60% of the amount set out in the City’s offer to settle dated March 14, 2023.

[19] In light of the foregoing, the factor of “the amount claimed and the amount recovered in the proceeding” (Rule 57.01(0.b)(a)) favours granting some costs to the City. While the Plaintiff was successful in recovering some damages, the amount recovered was a mere fraction of the amount claimed. The factor of “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding” (Rule 57.01(0.b)(e)) also favours granting some costs to the City. The Plaintiff commenced this action in 2014. It almost took ten years for the action to get to trial, and this occurred after a number of adjournments and delay caused by the Plaintiff. The conduct of the Plaintiff resulted in the Defendant having to incur unnecessary costs.

[20] Given the evidence available to her, the Plaintiff had an unrealistic view of her claims and chances of success. In contrast, the City made efforts to resolve the claim and avoid a trial, and made reasonable offers to settle to the Plaintiff, which she failed to accept. The Plaintiff would be in a significantly better position had she accepted the City’s last offer and a ten-day trial would have been avoided. Thus, the considerations underlying Rule 49.13 also favour granting some costs to the City.

[21] Recognizing the fact that the City did not admit liability from the get-go and that the Plaintiff achieved some success at trial, and taking into account the amount recovered in the proceeding, it is my view that a fair and reasonable award of costs in favour of the City in light of all the circumstances of this case is in the amount of $35,000.00.

3. Conclusion

[22] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the reasonable expectations of the parties and Rule 49.13, I find that it is fair and reasonable in this case to award costs in favour of the City on a partial indemnity basis in the all-inclusive amount of $35,000.00. The costs are to be paid by the Plaintiff to the City within 30 days.

Vermette J. Date: July 30, 2024

Footnotes

[1] In its costs submissions, the City states that the Plaintiff sought an extension of time for the delivery of her costs submissions. I have not received any extension request from the Plaintiff, either before or after the City delivered its costs submissions. In any event, the Plaintiff did not respond to my assistant’s e-mail providing her with a second opportunity to deliver costs submissions.

[2] The term regarding the requirement for a release reads as follows: “The plaintiff shall agree to a full and final release in a standard form, satisfactory to the parties and/or their counsel acting reasonably.”

[3] The term regarding the requirement for a release reads as follows: “The plaintiff will execute a full and final release in a standard form, prepared by counsel for the City of Toronto and satisfactory to the parties acting reasonably.”

[4] In D’Anscenzio, as in this case, the form of the release was not appended to the offer to settle.

[5] See also Ratz-Cheung v. BMO Nesbitt Burns Inc., 2024 ONSC 2499 at paras. 22-24.