DATE: 20011030 DOCKET: C30952

COURT OF APPEAL FOR ONTARIO

OSBORNE A.C.J.O., AUSTIN and LASKIN JJ.A.

B E T W E E N:

QUOC LUONG TO, KIET LINH LUONG TO and MARY TO, QUOC LUONG TO to act as Litigation Guardian for Mary To

Jeffrey William Strype for the appellant

Plaintiffs (Respondents)

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THE TORONTO BOARD OF EDUCATION, QUEONTO LIMITED and SPORTS EQUIPMENT OF TORONTO LIMITED

Paul R. Jewell for the respondent

Defendants (Appellants)

HEARD: November 29, 2000

On appeal from the judgment of Justice Norman D. Dyson, sitting with a jury, dated October 23, 1998.

SUPPLEMENTARY REASONS

BY THE COURT:

[1] After a twenty-eight day trial with a jury the plaintiffs were awarded $261,582 damages against the Toronto Board of Education (“the Board”) with respect to the death of their fourteen year old son in a school accident. The plaintiffs were also awarded their costs on a solicitor and client basis.

[2] On appeal the damages were reduced by $25,000 and the court reduced the scale of costs from solicitor and client to party and party subject to the following direction:

Apart from the problems attendant upon the defendant, Board of Education’s refusal to meaningfully respond to the plaintiffs’ request to admit, I see no basis to justify anything other than a party-and-party costs order throughout. I would direct the assessment officer to determine whether, if at all, the trial was prolonged as a result of the defendant, Board of Education’s failure to respond in any meaningful way to the plaintiffs’ request to admit. If the assessment officer determines that the trial was prolonged, the plaintiffs will be entitled to solicitor-and-client costs for the additional time spent at trial.

[3] Counsel for the Board objects to this direction responding by letter as follows:

It is my submission that the assessment officer is in no position to make that determination. It is my submission that we need further instruction from the court concerning the particular items set out in the plaintiffs’ request to admit that the plaintiffs allege could have been admitted by the defence and which would have resulted in a shorter trial. It is my submission that the ruling thus far will put the assessment officer in an untenable position when he was not the trier of fact and did not hear the argument before the Court of Appeal.

It would be my submission that plaintiffs’ counsel advise in writing what part of the trial he felt were prolonged as a result of the Board’s failure to admit and thereafter the Board’s response with its position based on the evidence that was available before and during trial.

[4] Counsel were then invited to make submissions by letter. Counsel for the Board responded at length to the effect that the hearing before the assessment officer would have to cover every item in the Request to Admit, that the assessment officer could not arbitrate such issues, that the Board itself had taken many steps to shorten the trial, that the trial judge had not provided the necessary direction for the assessment officer and that this court should not, without exercising its own discretion in this regard, simply pass on that duty to the assessment officer. It was also argued that the normal function of an assessment officer is not to determine the level of costs to be awarded.

[5] We are not persuaded that any further direction is needed. We are satisfied that the assessment officer has the authority and the experience to perform the work proposed. The task to be performed is not Herculean. Only one matter is to be considered, the Request to Admit. The plaintiffs are not invited to raise every item in it, but only those matters which they allege the Board’s failure to admit caused the time taken to be increased appreciably and unnecessarily. Reasonable counsel should not take twenty-eight days to assess the costs of a twenty-eight day trial. The assessment officer has the power and the discretion to award costs to control such conduct.

RELEASED: October 30, 2001

“C. A. Osborne A.C.J.O.”

“Austin J.A.”

“J. I. Laskin J.A.”