COURT FILE NO.: CV-17-00588805-0000 DATE: 20240910
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kyriaki Moustakis
AND:
Reynaldo Agbuya
BEFORE: Merritt J.
COUNSEL: Joel Dick and Victoria Yang Counsel, for the Plaintiff Vanessa Tanner Counsel, for the Defendant
HEARD: Costs Submissions heard: July 24, 2024
COSTS ENDORSEMENT
OVERVIEW and BACKGROUND FACTS
[1] The Plaintiff Kyriaki Moustakis (“Cindy”) sought damages for injuries she sustained in a motor vehicle accident on January 9, 2016, including soft tissue injuries, chronic pain, and psychological injuries. The Defendant admitted liability and the only issues are related to Cindy’s damages. The case was tried before a jury for 12 days in October 2023. The parties agreed that the questions for the jury concerned general damages, past income loss and future income loss or loss of earning capacity. The jury awarded damages for pain and suffering in the amount of $100,000, damages for past lost income in the amount of $105,000, and damages for loss of future income/loss of earning capacity in the amount of $125,000. From these amounts there are deductions for the statutory deductible and collateral benefits.
[2] The parties agree that the Plaintiff was successful in recovering general damages of $55,252.61 after the deduction of the statutory deductible. The parties also agree that, after the deduction for collateral benefits, the past and future income losses awarded by the jury result in a zero recovery to the Plaintiff for these heads of damages.
[3] The Plaintiff seeks costs in the amount of $428,073.76. This amount consists of partial indemnity costs to August 22, 2023 of $20,775, substantial indemnity costs from August 22, 2023 to the start of trial of $76,167.50, substantial indemnity costs for trial preparation and attendance of $150,817.50, HST of $32,208.80 and disbursements of $148,073.76.
[4] The Plaintiff submitted a bill of costs and dockets to substantiate her claim for costs.
THE ISSUES
[5] There are three issues as follows:
(1) To what costs is the Plaintiff entitled for costs of the action? (2) To what costs is the Defendant entitled for costs thrown away in relation to the Plaintiff’s motion to amend her claim at the outset of trial? (3) What is the appropriate rate of prejudgment interest?
DECISION
[6] The Plaintiff is entitled to costs on a partial indemnity scale to August 22, 2023 and costs on a substantial indemnity scale from August 22, 2023 onwards in the amount of $378,000 inclusive of fees, HST and disbursements.
[7] The Defendant is entitled to costs on a full indemnity basis in the amount of $10,000 inclusive of HST and disbursements for costs thrown away.
[8] The Plaintiff is entitled to prejudgment interest in the amount of $3,252.79.
ANALYSIS
[9] The purpose of awarding costs is:
(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: Harley v. Harley, 2023 ONSC 4611, at para. 22; Bender v. Dulovic, 2023 ONSC 4753, at para. 23.
[10] The factors to be considered in determining costs are set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which provides:
(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party’s denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; (h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and (i) any other matter relevant to the question of costs.
[11] Rule 57.01(4) gives the court broad jurisdiction to award costs on a full or substantial indemnity basis or award no costs for part of a proceeding:
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,
(a) to award or refuse costs in respect of a particular issue or part of a proceeding; (b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; (c) to award all or part of the costs on a substantial indemnity basis; (d) to award costs in an amount that represents full indemnity; or (e) to award costs to a party acting in person.
[12] The awarding of costs is not an exact science. The overarching principle is that costs must be fair, reasonable, and proportionate: Harley, at paras. 34-35 and Bender, at paras. 24-25.
[13] The court need not engage in an exact measure or detailed analysis of the dockets: Persampieri v. Hobbs, 2018 ONSC 368, at para. 33, citing Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161, at para. 4; Brophy v. Harrison, 2019 ONSC 4377, at para. 15, citing Apotex Inc. v. Egis Pharmaceuticals (1991), 4 O.R. (3d) 321.
Result at Trial
[14] The Plaintiff was successful in recovering $55,252.61 and, as the successful party, the Plaintiff is entitled to costs.
Offer to Settle
[15] The Plaintiff made a r. 49 offer to settle on August 22, 2023 for $35,000 for damages, plus interest, costs, and disbursements all to be agreed or assessed.
[16] The Defendant made a r. 49 offer to settle on June 23, 2023. The Defendant offered to settle for a dismissal of the action against him without costs.
[17] Rule 49.10 sets out the consequences for the Defendant who fails to accept a Plaintiff’s offer as follows:
(1) Where an offer to settle, (a) is made by a plaintiff at least seven days before the commencement of the hearing; (b) is not withdrawn and does not expire before the commencement of the hearing; and (c) is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
[18] The Defendant did not dispute that the Plaintiff beat her offer to settle and is entitled to partial indemnity costs to the date of the offer, August 22, 2023, and substantial indemnity costs thereafter.
Complexity
[19] The case was not overly complex, but the litigation spanned approximately 6 years and the trial took 12 days. The trial involved five experts and eight lay witnesses and included a claim for psychological injuries and chronic pain.
[20] The Plaintiff claims a costs premium of $40,000 to $60,000.
[21] A costs premium may be awarded for outstanding results, depending on the complexity of the matter and importance of the issues: Sandhu v. Wellington Place Apartments, 2008 ONCA 215, at paras. 118, 122-23.
[22] The result here was not outstanding and the matter was not complex or important enough to justify a costs premium.
Conduct Impacting Duration
[23] I do not find that there was any conduct of any party that unnecessarily lengthened the duration of the trial. The Defendant did not have a witness ready after I did not qualify Dr. Ford as an expert at approximately 2:30 p.m. on Tuesday, October 17, 2023 and court adjourned early that day. The Plaintiff’s next witness was also an expert witness. It was not unreasonable for counsel to have arranged for the next witness to be available the following day. While counsel are to do their best to use all available trial time, at times short gaps in the schedule are unavoidable. I do not find that the approximately two hours of downtime unnecessarily lengthened the trial to the extent that I should take it into consideration in fixing costs.
[24] Nor do I find that any party refused to admit anything that should have been admitted. The Defendant did not abandon his claim for contributory negligence until after the trial was underway. There was one independent witness, Nadine Queensborough Anwan (“Ms. Anwan”), whose evidence may not have been necessary if the Defendant had abandoned his contributory negligence claim before the trial started.
[25] The Plaintiff provided a summary of Ms. Anwan’s evidence prior to trial. Although the “will say” contains Ms. Anwan’s opinion that the Plaintiff “was not at fault,” it does not contain particulars of mechanics of the accident. I know that the Defendant also obtained information from Ms. Anwan but I have not seen it and do not know what level of detail Ms. Anwan provided to the Defendant prior to trial.
[26] In any event, Ms. Anwan’s evidence at trial, including the examination in chief and cross examination, took less than 25 minutes. I do not find that the Defendant should have abandoned his claim for contributory negligence prior to Ms. Anwan giving evidence.
Reasonable Expectations
[27] In Portuguese Canadian Credit Union v. CUMIS, 2010 ONSC 6701, at para. 12, the court found: “In contested commercial litigation such as this one of the best indicators about the reasonable expectations of the parties regarding their potential cost exposure in the event they lose a step in a proceeding is how much they paid their own lawyers.”
[28] The Plaintiff’s claim for costs incurred prior to trial should come as no surprise to the Defendant given the costs incurred by the Defendant. The Defendant submitted a Bill of Costs (which did not include trial preparation and attendance) in the amount of $110,205.51 for partial indemnity and $165,344.43 for substantial indemnity costs. The Plaintiff’s claim for the work done prior to trial is $96,942 consisting of $20,775 (partial indemnity to August 22, 2023) plus $76,167 (substantial indemnity for the time from August 22, 2023 to the start of trial).
[29] The Defendant is a sophisticated litigant and should not be surprised by the time and disbursements spent during a three-week trial. Given the Defendant’s challenge to the Plaintiff’s credibility it was necessary for the Plaintiff to call a sizable number of lay witnesses to corroborate her claim that her functioning was markedly impaired by the accident.
The Defendant’s Objections
[30] The Defendant’s objections to the costs sought by the Plaintiff fall into the following general categories:
(1) The costs sought are not proportionate to the recovery; (2) The hourly rates and time spent are too high; (3) The significance of the ATE insurance; (4) The attendance at trial of two lawyers and a law clerk; (5) Hourly rate and administrative work performed by a law clerk; (6) The Plaintiff conducted a “trial by ambush”; (7) The time spent on the focus group; (8) Disbursements related to experts who were not called as witnesses.
Proportionality
[31] Proportionality is an important factor in fixing costs. However, “proportionality should not result in a successful party being under compensated for its costs”: Jodi L. Feldman Professional Corporation v. Foulidis, 2024 ONSC 3598, at para. 9.
[32] While the Defendant is entitled to adopt a “hardball” litigation strategy, he must bear the consequences of doing so: Persampieri at paras. 38, 40 and 98-100, Brophy at para. 30, St. Marthe v. O’Connor, 2019 ONSC 4279, at paras. 14-16, aff’d 2021 ONCA 790, leave to appeal refused, [2022] S.C.C.A. No. 2., and Barry v. Anantharajah, 2024 ONSC 1267, at para 19.
[33] It would not be appropriate to limit the Plaintiff’s costs based on the principle of proportionality. She had a good but modest claim and the Defendant forced the trial by making no offer to settle. To limit the Plaintiff’s costs based on her modest recovery would undermine the purpose of r. 49. Where the Defendant makes no offer of a monetary payment and the Plaintiff beats her r. 49 offer, proportionality must give way to the important access to justice principles that underlie r. 49: Persampieri at paras. 74, 83, 90-108 and Brophy at para. 25.
[34] The Defendant says that given the amount of the Plaintiff’s net recovery the action should have been commenced under the Simplified Procedure in r. 76. The Plaintiff says that it was not clear how much the Plaintiff’s case was worth until the Plaintiff settled her claim for Statutory Accident Benefits (“SABS”) and the amount of the deduction for these collateral benefits was determined and the choice of the ordinary procedure was reasonable.
[35] The Plaintiff commenced her action on December 20, 2017 when the Simplified Procedure was limited to claims under $100,000 and did not provide many of the procedural differences from the ordinary procedure as the current r. 76 does. The Plaintiff’s claim for SABS was settled on December 3, 2020 after examinations for discovery and mediation and, at that point in time, there would be little costs savings.
[36] I find that the Plaintiff’s choice of the ordinary procedure was reasonable given that her claims were for chronic pain and psychiatric injuries and required expert evidence to prove and the main thrust of the defence was an attack on the Plaintiff’s credibility: Persampieri at para. 14, 15, 23, 44 and 159-64, and Wray v. Pereira, 2019 ONSC 3354, at paras. 23-24.
Time Spent and Hourly Rates
[37] The following timekeepers did almost all of the work on the Plaintiff’s case:
| Name | Year of Call | Hourly rate-partial indemnity | Hourly rate-substantial indemnity |
|---|---|---|---|
| Joel Dick | 2002 | $400 | $500 |
| Victoria Yang | 2017 | $275 | $275 |
| Tania Harris (law clerk) | 26 years of experience | $135 | $200 |
[38] In 2005, the Civil Rules Committee developed a guide including maximum rates that the courts normally considered when fixing partial indemnity costs, and the guide was published in a Notice to the Profession (the “Costs Grid”). The Costs Grid can provide some guidance, but the rates are not mandatory: St. Marthe at para. 22.
[39] The rates in the Costs Grid must be updated to reflect inflation: Kalair v. Kalair, 2023 ONSC 31, at para. 39, citing First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 40 C.P.C. (7th) 46.
[40] The following chart demonstrates the relevant maximum hourly rates updated for inflation:
| Time Keeper | Partial indemnity maximum in 2005 | Partial indemnity in 2024 |
|---|---|---|
| Lawyer (20 years and over) | $350.00 per hour | $526.16 |
| Lawyer (less than 10 years) | $225.00 per hour | $338.25 |
| Law Clerk | $80.00 per hour | $120.27 |
[41] I note that the substantial indemnity rates claimed by the Plaintiff’s lawyers are less than the partial indemnity rates in the Costs Grid.
[42] The Defendant suggests that an hourly rate of $57 for Ms. Harris is appropriate.
[43] The Plaintiff submits that the law clerk is very senior with 26 years of experience and has won awards.
[44] I find that the rates for the law clerk are reasonable.
[45] While the rates for Ms. Harris are higher than the Costs Grid, given her experience and the nature of the work she does, I expect she performs work at a higher level than many law clerks whose hourly rates would be contemplated in the Costs Grid.
[46] The Defendant has submitted a list of hourly rates that the Law Society of Ontario pays to its external counsel. I do not find these rates helpful. I give more weight to the Costs Grid.
[47] I find that the hourly rates claimed by the Plaintiff for the lawyers are reasonable.
[48] The Defendant has produced a document entitled “Revised Bill of Costs” in which the hours spent on various tasks are reduced. There is no explanation for the proposed reduction of hours for the lawyers for trial preparation. The reduction of hours of the law clerk relates to time the Defendant characterizes as administrative and attendance at trial, both of which are discussed below.
[49] The time recorded by the various timekeepers in the Plaintiff’s Bill of Costs is as follows: 1) 117 hours of time up to and including the pre-trial conference; 2) 211.7 hours for trial preparations; and 3) 461.5 hours for attendance and preparation during trial.
[50] Except for the time spent at trial by the law clerk, discussed below, I find the time spent to be reasonable.
ATE Insurance
[51] The Defendant encouraged me to consider that the availability of After The Event (“ATE”) insurance has caused an increase in the number of cases being tried in the court. The Defendant offered no evidence to support this proposition, let alone caselaw to support that it is a relevant consideration.
[52] While the Plaintiff herself did not have ATE insurance, counsel for the Plaintiff advised that his firm does carry insurance which provides for reimbursement for up to $70,000 [^1] for disbursements in the event the case is dismissed. Counsel for the Defendant suggested that the decision to proceed to trial was motivated by Plaintiff’s counsel’s desire to recoup his firm’s investment in disbursements.
[53] This is a most serious allegation and I would not make such a finding in the absence of very compelling evidence to support it.
[54] In any event, the argument does not make sense given that the maximum amount payable under the ATE insurance policy was $70,000 and the disbursements incurred prior to trial were just under $117,000. If the Plaintiff’s counsel were preferring his firm’s interest, it would not have made sense to proceed to trial and incur a further $31,162.05 of disbursements and significant investment of time by two lawyers and a law clerk.
Number of Time Keepers Attending at Trial
[55] One of the Defendant’s objections relates to the attendance of Ms. Victoria Yang who acted as co-counsel at trial and a law clerk, Ms. Tania Harris, who worked on the file and attended the trial by Zoom.
[56] Ms. Yang attended every day of the trial in person. Ms. Yang was called to the bar in 2017. She led the evidence of Dr. Tashima who was one of the Plaintiff’s most important witnesses and otherwise assisted at trial including arguing the threshold motion. I find that it was reasonable to have Ms. Yang attend the trial as co-counsel. I do not find that her time should be reduced as learning time.
[57] The Plaintiff submits that Ms. Harris’s contribution at trial included taking notes and addressing documentary and technical issues as they arose. While I am sure this was useful, I am not persuaded that Ms. Yang could not manage these functions.
[58] I do not find that it is reasonable to expect to pay for Ms. Harris’s attendance at trial. The case was not overly complex; the evidence was completed in eleven days. I find that the Defendant should not be required to pay for both Ms. Yang and Ms. Harris attending every day of the trial: Molinaro v. Bamford and Lampman Auto Wreckers Ltd., 2011 ONSC 7240, at paras. 15-16. Accordingly, I am reducing the Plaintiff’s costs by deducting the 142.2 hours Ms. Harris spent attending the trial. This deduction results in a reduction of $23,020 according to the Defendant’s calculations in Exhibit B.
Law Clerk Administrative Work
[59] The Defendant says that 220.2 hours of time docketed by Ms. Harris relate to administrative work. The Defendant submits that he should not have to pay for administrative work done by a law clerk. I agree that it is not reasonable to expect the Defendant to pay for administrative work done by a law clerk: 1422986 Ontario Limited v. Syncor et. al., 2020 ONSC 4589, at para. 49. However, I cannot determine whether the work done by Ms. Harris was administrative in nature based on the description in the dockets alone. Given that Ms. Harris has an administrative assistant who works for her, I find it more likely that the work done by the law clerk was not administrative in nature.
Trial by Ambush
[60] The Defendant says that in fixing costs, I should consider that the Plaintiff conducted a “trial by ambush.” This suggestion was largely based on late productions. The Defendant suggested he did not know the case he was to meet and was faced with hundreds of documents in the days leading up to the trial as well as last minute calculations from the Plaintiff’s accountant.
[61] The Plaintiff says there was no “ambush” and the late productions were in response to requests by the Defendant and not documents upon which the Plaintiff relied at trial.
[62] While it may have resulted in last minute preparation, I cannot find that timing of the production of documents added to the cost of the trial preparation or trial. The documents would have to be reviewed regardless of when they were produced.
[63] The Defendant says the Plaintiff did not explain the nature of her objections to the qualification of the Defendant’s expert witnesses in advance of trial. The Plaintiff says she asked about the precise basis upon which the Defendant sought to qualify the defence experts but was only told they would be qualified in the areas in which they practice.
[64] The Plaintiff says the Defendant first notified her on October 16, 2023 that the Defendant sought to qualify Dr. Ford as an expert in chronic pain. The Plaintiff says that had she known the precise basis upon which the Defendant sought to qualify Dr. Ford, she could have provided more information about the basis of her challenge to his qualification in this case.
[65] I do not find that the Plaintiff’s challenges to the Defendant’s experts constituted trial by ambush. Having said that, counsel should try to reach agreement on issues relating to the qualification, admissibility, and scope of expert evidence in advance of trial. This is particularly important with respect to participant experts who are not required to prepare a report under r. 53.
[66] Where the parties cannot reach an agreement regarding the expert evidence, and depending on the nature of the challenge, it may be possible to have the issue determined by the trial judge in advance of the trial: Doobay v. Fu, 2020 ONSC 3329, at paras. 13-16. However, in some cases, the trial judge will need to consider the evidence given on the voir dire in the context of the other evidence at trial. For example, the trial judge may need to hear the evidence of other witnesses to determine whether the expert’s evidence is relevant and necessary under the test established in R. v. Mohan, [1994] 2 S.C.R. 9.
[67] The Defendant also points to the Plaintiff’s failure to upload briefs of authorities dealing with the qualification of expert witnesses and participant experts and other legal issues.
[68] While it is certainly preferable to have briefs of authorities served, filed, and uploaded into Caselines at the outset of the trial, I note that Defence counsel also challenged the Plaintiff’s experts, so presumably she was familiar with the legal basis for doing so. I also note that Defence counsel did not request an adjournment or even a short recess to prepare for issues which she now claims caught her by surprise.
[69] Two of the briefs of authorities filed by the Plaintiff were directly responding to issues raised by the defence during trial (i.e., adverse inferences and the use to be made of the AB file). Some of the briefs related to post-trial matters (i.e., the threshold issue, deduction of collateral benefits and costs).
[70] Again, while it is helpful to counsel and the court if legal issues are identified in advance of trial and briefs of authorities exchanged and uploaded to Caselines, I do not find that in failing to do so, the Plaintiff conducted a trial by ambush in this case.
The Focus Group
[71] The Defendant objects to the costs associated with a focus group.
[72] The Plaintiff submits that she should be awarded the costs associated with conducting a focus group. She says the law suggesting these costs are not recoverable is outdated and wrong and that it should not matter whether counsel prepare witnesses alone or in front of a focus group. The Plaintiff has not submitted any case where the court allowed costs associated with a focus group.
[73] The Defendant should not be expected to pay the costs associated with focus groups, as these costs are not assessable disbursements: Jeremy Josey v. Joshua Trebych et. al., 2017 ONSC 6420, at paras. 21 and 42. Accordingly I deduct $15,805 for fees and the $600 disbursement which are the costs associated with the focus group.
[74] The parties agree that there is a duplicate docket entered by Mr. Dick for attending the examinations for discovery and the costs should be reduced by $2,600.
Disbursements
[75] The Plaintiff provided a list of assessable disbursements in the total amount of $148,014.96.
[76] Included in the Plaintiff’s list of disbursements are disbursements in the amount of $38,977.69 for reports and/or records of experts who did not give evidence at trial, including Dr. Fecycz, Dr. Cheng, Okell Rehabilitation, Total Health Care/D. Zapparoli and Arin Shuster & Associates.
[77] The Defendant submits that the Plaintiff should not recover disbursements for the experts who did not testify including the cost of the future care report because the Plaintiff abandoned the claim for future care before trial.
[78] The Plaintiff submits that she obtained the future care report before she settled the SABS claim, and the settlement of the SABS claim and resulting deduction for collateral benefits was a significant factor in the decision to abandon the claim for future care.
[79] A party can recover disbursements incurred for witnesses who were not called to give evidence: Rochon v. MacDonald, 2014 ONSC 591, at paras. 34 and 35.
[80] There are various reasons why experts may be retained but not called as witnesses at trial. It is difficult if not impossible for counsel to know exactly how the evidence will unfold and what evidence may no longer be required. A rule that disentitles a party to a disbursement for an expert not called to testify could act as a disincentive to running trials as efficiently as possible, limiting evidence only to that which is necessary and saving time and money as well as judicial resources.
[81] I am satisfied that it was reasonable for the Plaintiff to incur the disbursements for the various experts in this case.
[82] The Defendant suggests that there are disbursements that were billed twice. There are disbursements listed under the heading “trial disbursements” on the Plaintiff’s list of disbursement for payments to the expert witnesses in the total amount of $29,365.95. The Defendant says these amounts are likely already included in the cost of expert reports listed under the heading “Medical Records, Hospital Records and Expert Reports”.
[83] The Plaintiff submits that the amounts listed under the heading “trial disbursements” are not duplicates and relate solely to the trial. They are disbursements paid for witness preparation, attendance at trial and conduct money.
[84] This issue could easily have been resolved had the Defendant requested copies of the actual invoices rendered by the experts. While the burden is on the Plaintiff to prove her costs, in the absence of evidence to the contrary, I do not find that the amounts which the Plaintiff says she paid were not actually paid. I accept that the list provided by the Plaintiff is correct.
[85] The Defendant submits that I should disallow conduct money paid to witnesses who did not testify. I find these amounts were reasonably incurred. It is not unreasonable to subpoena witnesses and then, as the trial unfolds, discover that their evidence is not required. Efforts to streamline trials are to be encouraged.
[86] The Plaintiff agrees that there are some errors in her list of disbursements. There is a mistake in her disbursements list relating to the mediation fee and the amount of $1,168.75 is to be deducted. The Plaintiff also agrees that disbursements for office supplies, in the total amount of $1,602.61, are to be deducted. There are disbursements for two cheques for $30 each for hospital records that were returned because there were no records available. The total deduction for these three items is $2,831.36.
[87] Once the deductions are made, the total costs are approximately $378,000 inclusive of HST and disbursements which is reasonable for a moderately complex personal injury trial that took 6 years to litigate and culminated in a 12-day jury trial.
[88] The Plaintiff is entitled to costs on a partial indemnity scale to August 22, 2023 and costs on a substantial indemnity scale from August 22, 2023 onwards in the amount of $378,000 inclusive of fees, HST and disbursements.
Costs Thrown Away
[89] The Plaintiff brought a motion at the outset of trial to amend her Statement of Claim to abandon her claims for future care costs and housekeeping costs.
[90] The Plaintiff notified the Defendant of the proposed amendments approximately one week before the trial started.
[91] The Defendant did not oppose the amendments but sought costs because counsel for the Defendant had already retained experts, met with them to prepare, and otherwise prepared to respond to these claims at trial.
[92] Prior to trial, the Defendant submitted a Bill of Costs dated September 27, 2023 for partial indemnity costs of $11,136.89 or substantial indemnity costs of $15,580.33 for the costs thrown away. On October 1, 2023, the Defendant submitted an Updated Bill of Costs for partial indemnity costs of $13,611.58 or substantial indemnity costs of $19,292.50.
[93] The Plaintiff did not dispute that the Defendant is entitled to costs thrown away but asked that I reserve my decision on costs until the end of trial which I did because it was not clear to me what time was actually wasted.
[94] After the trial, the Defendant submitted a Bill of Costs dated February 23, 2024 for partial indemnity costs of $17,667.72 and substantial indemnity costs of $25,370.37.
[95] The Defendant’s counsel did not keep dockets and the Bills of Costs are estimates.
[96] The Plaintiff now submits that the Defendant should not recover any costs thrown away.
[97] The Plaintiff disputes the Defendant’s entitlement to costs because the time claimed is not all related to the abandoned claim for future care and includes time reviewing all medical records and expert reports, trial preparation time, time preparing the jury questions, time drafting and serving a motion record and factum, and a portion of the time spent in relation to the pre-trial conference.
[98] The Plaintiff says that considerable time spent on the future care claim was also relevant to the Defendant’s argument that the Plaintiff failed to access treatment and therefore failed to mitigate her damages. For example, there is time claimed for reviewing the Plaintiff’s prescription history which was relevant to both the future care claim and the Defendant’s mitigation argument.
[99] Costs thrown away should generally be awarded on a full or substantial indemnity basis, but the court has discretion to order otherwise: Pittiglio v. Pittiglio, 2015 ONSC 3603, [2015] CarswellOnt 8290, at para. 5; Nelson v. Chadwick, 2019 ONSC 4544, at para. 27; Emami v. Furney, 2019 ONSC 1731, at para. 7.
[100] It appears counsel for the Defendant has attempted to allocate a portion of the time spent on various tasks such as time preparing the jury questions that would be attributable to the claim for future care.
[101] In this case, without dockets it is difficult to determine precisely how much time, if any, is unrelated to the claim for future care. Similarly, it is difficult to determine precisely how much time would have been necessary in any event.
[102] I find that a significant amount of the time claimed by the Defendant would have been spent in any event because there was substantial overlap between the future care claim and the Defendant’s mitigation argument which focused on the Plaintiff’s care needs.
[103] In exercising my discretion, I award costs on a full indemnity basis payable by the Plaintiff to the Defendant in the amount of $10,000 inclusive of HST and disbursements for costs thrown away in respect of the Plaintiff’s motion to amend her claim to abandon her claim for future care costs. I find that this represents a fair and reasonable amount for costs thrown away.
PRE-JUDGMENT INTEREST
[104] On December 20, 2017, the Plaintiff provided notice by a letter to the Defendant pursuant to s. 258.3(1)(b) of the Automobile Insurance Rate Stability Act, 1996 that she intended to commence an action and was claiming prejudgment interest from the date of the letter onward pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[105] The Plaintiff is entitled to prejudgment interest from December 20, 2017 to October 20, 2023, the day the jury rendered its verdict.
[106] The Plaintiff submits that the interest rates as published under the Courts of Justice Act over the period from December 20, 2017 to October 20, 2023 should be averaged given the variation in rates during that time.
[107] The parties agree that the average rate is 1.8% and results in prejudgment interest in the amount of $5,851.96.
[108] The Defendant submits that there is no reason to depart from the prescribed rate and the amount of prejudgment interest is $3,252.79.
[109] The presumptive or default prejudgment interest rate is the statutory rate: Henry v. Zaitlin, 2024 ONCA 614 at para. 16 and Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615 at para. 26-27.
[110] Section 130(1) allows the court to allow interest at a different rate than that provided in s. 128 where the court considers it just to do so. The factors to be considered are set out in ss.(2).
[111] The onus is on the party who seeks a departure from the statutory rate and unusual or special circumstances are required: Henry at paras. 21, 23 and Aubin at para. 32.
[112] It is not appropriate to award the average rate simply because there have been significant changes in the prescribed rates over the period in question. I have no evidence of the changes in the market interest rates, and no evidence relating to any advance payments or the circumstances of medical disclosure. I have already found that there was no conduct that tended to shorten or lengthen the duration of the action unnecessarily.
[113] The Plaintiff is entitled to prejudgment interest at the statutory rate in the amount of $3,252.79.
Merritt J. Date: September 10, 2024
[^1]: The amount of the ATE insurance limit is unclear. In his submissions Mr. Dick advised that the policy limit is $70,000. Mr. Andrew Chau of Aviva Insurance swore an affidavit that Mr. Dick advised him and Ms. Tanner in a telephone call on August 23, 2023 that the insurance limit was $100,000 but the email from Mr. Chau to Ms. Tanner dated the same day says that Mr. Dick advised them that if the case is lost at trial, “he will be able to recoup 50K in disbursements”. In any event, even if the limit was $100,000, it was exceeded prior to trial.