DATE: 20040206 DOCKET: C37466
COURT OF APPEAL FOR ONTARIO
WEILER, MOLDAVER and ARMSTRONG JJ.A.
BETWEEN:
ZARI K. BANIHASHEM - BAKHTIARI, PEDRUM SODOURI and PEJMAN SODOURI et al.
Plaintiffs (Respondents)
- and -
AXES INVESTMENTS INC., ALFREDO DE GASPERIS, TANDEM GROUP INTERNATIONAL INC., TANDEM GROUP MANAGEMENT INC., TANDEM INTERNATIONAL INC., TANDEM INTERNATIONAL INVESTMENT CO., TANDEM INVESTMENTS LTD., PAUL REID, VAN FORBELL, MERV DOCTOROW, JOHN BRODERICK, ROBERT MACHT, JOHN HAUGHTON, INTERTEC SECURITY & INVESTIGATION LIMITED and CITY OF TORONTO
Defendants (Appellants)
Barry A. Percival, Q.C. for the appellants
Stuart Forbes, Q.C. for the City of Toronto
Ian W. Outerbridge, Q.C. and Cynthia R.C. Sefton, for the respondents
HEARD: January 6 and 7, 2004
On appeal from the judgment of Justice Dennis Lane of the Superior Court of Justice dated November 30, 2001.
BY THE COURT:
Nature of Appeal:
[1] This action arises out of a fire that occurred January 6, 1995, at the appellant's premises, known as 2 Forest Laneway in the former City of North York. None of those who stayed in their apartment were injured. Six people died and several others were injured when they were overcome by smoke in the stairwells of the apartment building. Nine actions were brought and were ordered tried together. Lane J. heard the action that forms the subject matter of this appeal. The damages in the other actions are somewhat in dispute and counsel have agreed to abide by the result as to liability in this action.
[2] The trial judge gave thorough and detailed reasons. His diligence greatly simplifies our task. The reasons are reported at [2001] O.J. No. 4720 and (2001), 24 M.L.P.R. (3d) 248. They include a detailed summary of the facts, which we need not repeat. We will refer to the respondents (Zari Banihashem-Bakhtiari and Pedrum Sodouri) as Zari and Pedrum respectively as this is how they are referred to in the trial judgment.
[3] The Fire Marshall, William Hiscott, determined the cause of the fire to be consistent with a cigarette burning on a couch in apartment 509, a unit rented by the Defendant, Merv Doctorow. After discovering the fire, it appears that Mr. Doctorow opened the balcony door, then exited his suite leaving the suite door open. As the suite door was not equipped with a self-closing device (SCD), the suite door remained open.
[4] The fire spread into the hallway and then into the stairwell. The plaintiffs Zari and her son Pedrum were tenants on the 17th floor who fled their apartment into the stairwell and eventually began climbing towards the roof. Several floors above theirs they succumbed to smoke inhalation and were injured.
[5] Following a thirty-nine day trial without a jury, the trial judge awarded damages in favour of the plaintiffs in the amount of $3,232,009.20. The defendants Axes Investments Inc., the registered owner of 2 Forest Laneway, Tandem Group Management Inc., the property managers (collectively, “Axes”), the City of Toronto, successor to the former City of North York, and Mr. Doctorow were all found to be negligent. The trial judge found as proven acts of negligence:
(i) Doctorow's careless handling of a cigarette caused the fire and contributed to the injuries that ensued by leaving his suite and balcony doors open.
(ii) When the building plans were put forward in 1974, the failure of the City to require SCDs on all suites in accordance with its by-law was an act of negligence for which it was liable.
(iii) Axes had a duty to take positive action to make its premises reasonably safe when it first bought the premises in 1986. Further, it knew or ought to have known of recent developments relating to fires in high rises and to have placed SCDs on all suites.
(iv) Axes was negligent in failing to properly maintain the SCD on the 5th floor stairwell door which would have ensured the door was closed and latched and would not blow open at flashover by the wave of air pressure generated at that time.
[6] He assessed the degree of fault among the respective defendants as follows: Mr. Doctorow 10 percent; the City 20 percent; Axes 70 percent. In addition, the trial judge awarded counsel fees to the plaintiffs on a substantial indemnity scale at $1,120,000.00, plus a premium of $350,000.00 and disbursements of $193,402.00. The trial judge also awarded costs to the co-defendant, City of Toronto, payable by Axes, Paul Reid and Van Forbell, fixed at $85,000.00.
Issues on Appeal
[7] Only Axes appealed the issue of liability to Zari and Pedrum but, at the outset of this appeal, Axes abandoned that issue. This appeal therefore relates to the apportionment of liability, the quantum of general damages for the respondents, future loss of income and the costs of the appeal. There is also a cross-appeal with respect to two aspects of future care costs. In relation to the future care costs of Zari, it was conceded that there was a mathematical error of $79,000 because the incorrect life expectancy factor had been used. Accordingly, subject to what we say later, that amount shall be added to the judgment.
Apportionment of Liability
[8] We begin by acknowledging the narrow scope of appellate review in this area. A re-apportionment of liability sought on appeal will only be granted in strong and exceptional cases.
[9] The trial judge's reasons for apportioning the damages as he did are summarized at para. 172 of his judgment and are reproduced below:
The defendant Merv Doctorow negligently allowed the fire to start. The Axes/Tandem defendants were the occupiers and failed in their duty in the manner described above. The City failed to properly interpret and enforce its own by-law. Each of these acts or omissions contributed to the plaintiffs' injuries. In considering the issue of the comparative negligence of each, I am struck by the central role played by the absence of SCDs on the suite doors, and the failure of the 5th floor fire stair door closer, aspects in which Mr. Doctorow played no part; and by the open fire stair door in which neither Doctorow nor North York played a role. The City's operative negligence occurred once, in the process of approval of the plans over 20 years before the fire. The negligence of Axes/Tandem went on for years as they failed to remove the risk which they knew or ought to have known was created by the absence of these essential safety devices, and failed to maintain the fire stair doors. They must bear the greater part of the loss.
[10] With respect to Doctorow, as indicated, the trial judge held him 10 percent liable. In coming to that conclusion he found at para. 15:
His careless handling of a cigarette caused the fire and so contributed to the injuries and deaths which ensued. The plaintiffs are entitled to judgment against him.
At para. 19 of his reasons, the trial judge quoted from the report of Mr. Hiscott as follows:
Due to the actions of the occupant opening the patio door and leaving the suite door open, the fire burned freely consuming most of the combustibles contained in the couch.
Further, at para. 22:
Mr. Robert Harpur P. Eng., also from the OFM, holds a degree in engineering and has been in fire protection work since 1978. He has studied smoke movement and smoke control design and has investigated many fires. He was qualified as an expert. His evidence was also essentially uncontradicted and I accept it. He performed fire resistance tests on a typical suite door from 2 Forest Laneway and found that, although it burned through to the extent of a 60 mm. hole in 13 minutes, less time than permitted under 1995 standards to be rated for fire resistance, it nevertheless: “...remained essentially intact and in place and would have presented a useful barrier against the spread of fire and smoke in an actual fire.” (Report, Ex. 13, vol. 1, p.212). Of course, it would have had to have been closed to perform such a function.
In a later portion of his reasons, at para. 117, the trial judge stated:
If the suite door to 509 had been closed it would have at least been a useful barrier against the spread of the fire and smoke; indeed, Mr. Hiscott and Mr. Silvestri felt that they would have been confined to 509 itself. Had that been the case, there would likely have been no injuries or fatalities from smoke.
[11] It is apparent that this finding applies equally to Mr. Doctorow. He was not only the instigator of the fire but had he also shut the door in accordance with signs posted throughout the apartment building directing tenants to do so, the smoke would have been confined to his unit. It does not appear that the trial judge took this into account in apportioning liability. Accordingly we are of the opinion that Mr. Doctorow's liability should have been higher.
[12] We turn now to the issue of whether the trial judge erred in his apportionment of liability with respect to the City. In assessing the City's apportionment, the trial judge found at para. 172 that the City's operative negligence occurred once “in the process of approval of the plans over 20 years before the fire.” The trial judge specifically held at para. 116 that “Bylaw 22000 required that 2 Forest Laneway be equipped with SCDs on all suite doors.” The trial judge properly found that the City failed to correctly interpret and enforce its own by-law in approving the plans without SCDs on all suite doors. With respect, however, we think that the trial judge erred in restricting the City's negligence to that one event.
[13] Leaving aside the fact that the City apparently failed to enforce its by-law, the City certainly had an opportunity to rectify the lack of SCDs on suite doors in 1994 when Axes applied for an extension of time to retrofit the building in accordance with the provincial Fire Code. Mr. Cleary, the City's representative in charge of deciding on applications for an extension:
acknowledged that he knew that heat and smoke are two products of combustion; that in high-rise fires, smoke is the primary cause of injuries and death; that he was aware that a feature of fires in high-rise buildings is the stack effect, and the consequent migration of smoke; that in 1994 he knew what a self closing device was, that its purpose was to return the door to the closed position and that keeping a door to a suite in the closed position was “...an important part of fire safety.” [at para. 146]
Despite this, Mr. Cleary approved Axes' application for an extension of time to retrofit the building including time to install SCDs on suite doors. He did this solely on grounds of financial hardship. The trial judge found at para. 149:
Mr. Cleary reached a decision which is supportable upon the financial criteria recommended by the Fire Marshall's October, 1992, circular. It was entirely reasonable for Mr. Cleary to have relied upon the criteria recommended by the OFM in that circular.
[14] In our opinion, while this may have applied to the rest of the retrofit, in view of By-Law 22000 and the public knowledge of the serious risk created by the lack of SCDs in high-rise apartments, he ought not to have done so. The trial judge alluded to this public knowledge and great danger at paras. 67-69 and 82 of his judgment in discussing the liability of Axes as owner of the building. However, he made no reference to the City and in our view his conclusion is also applicable to the City. The City missed the opportunity to rectify the situation and, in light of the trial judge's findings concerning the closure of the suite door, this had to be a significant factor in the tragic outcome. Accordingly we are of the view that the trial judge underestimated the City's liability.
[15] Axes further submits that the trial judge also underestimated the City's liability when he found that, although Chief Hudson was negligent in failing to use the Emergency Voice Communication System (EVAC), that negligence did not cause or contribute to the plaintiffs' injuries. Axes submits that had Chief Hudson looked at the annunciator panel upon his arrival, he would have seen that the smoke detectors were going off in the stairwells and, using the EVAC system, advised tenants to stay in their apartments or to return to their apartments.
[16] We would not give effect to this submission. We note that there was no evidence that Chief Hudson was negligent because he may not have gone immediately to the annunciator panel. He was concerned with deploying his forces to fight the fire and putting in a second alarm. The trial judge found that Chief Hudson's duty to communicate with the tenants by using the EVAC system did not arise until 5:24 a.m., at which time in all probability the EVAC system had shorted out and was not operational. He also found that it was “very probable” that the plaintiffs had left their apartment before the Fire Department arrived. Moreover, he found (at para. 166) that smoke probably overcame the plaintiffs between 5:20 and 5:25 a.m. and it was “most improbable” that even “perfect communication” would have assisted them since they were trapped on the thirtieth floor “13 smoke-filled floors away from their apartment.”
[17] Returning to the question of apportionment, Axes' overall submission is that its liability should not be greater than that of the City. The trial judge found the negligence of Axes went on for years. It included not only its failure as owner and occupier of the Building to install SCDs on all suite doors but also its failure to maintain SCDs that had been installed on the fire exit doors leading to the stairwells. In respect of the latter finding, the trial judge found that it was “the single greatest contributor to the whole disaster” (at para. 62). While that finding may be questionable in light of the trial judge's findings regarding the importance of SCDs in each unit, we nonetheless consider it appropriate that Axes assume a greater portion of the liability.
[18] Based on the foregoing analysis, we are of the view that the trial judge erred in his apportionment of liability for negligence. Taking into account the full extent of the responsibility of Mr. Doctorow and the City, we are of the view that liability should be apportioned as follows:
Doctorow: 20%
North York: 35%
Axes: 45%
General Damages
[19] The only issue with respect to Zari is the award for non-pecuniary general damages. In oral argument, Axes abandoned its appeal respecting future care costs.
[20] Zari suffered severe injuries due to smoke inhalation when she was trapped in the stairwell. She has permanent organic brain damage. The trial judge summarized the nature and extent of her injuries at para. 247 of his reasons as follows:
In my view, the quality of Zari's life has been destroyed. She has been reduced from an independent, respected, confident, self-supporting, employed mother of two sons who looked to her for guidance, to an unemployable, unsociable, dependent person, no longer able to be the mother, rather now dependent upon her sons for her emotional support. Once she has done her banking and her shopping, she has no activities to stimulate her socially or cognitively. She does not travel for pleasure. Her course is a correspondence course, lacking in the give and take of a classroom. Her short-term memory is so bad she often has to re-play movies to pick up the plot. She has a similar problem when reading. She has reasonable health, except for her shoulder and neck pain (for which she goes to the gym occasionally) and a normal life expectancy, but she has severe cognitive deficits. It is true that she is in a better situation as to health than any of the trilogy plaintiffs. Nevertheless, the result of her injuries has devastated her former life. She has a reasonable possibility of coming to dementia earlier than she would have. Such a plaintiff is a candidate for an award towards the upper end of the scale: MacMillan v. Ontario, [1998] O.J. No. 2763 (O.C.J.)
[21] In MacMillan v. Ontario, Jenkins J. assessed the plaintiff's damages at $210,000 in respect of injuries that were similar to the injuries sustained by Zari in this case. An appellate court is not justified in interfering with the trial judge's assessment of damages unless the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. While the award here may have been at the high end of the appropriate range, we are not prepared to interfere. The trial judge's findings of fact are reasonably capable of supporting the amount awarded. See: Padfield et al. v. Martin et al. (2003), 2003 ONCA 36239, 64 O.R. (3d) 577 (Ont. C.A.) at 592. In coming to this conclusion we note that in oral argument Axes abandoned its position that the trial judge had erred in finding that Zari had a reasonable possibility of suffering early dementia. That factor, which played a role in the assessment of future care costs, is also significant with respect to the assessment of general damages.
[22] Pedrum was awarded $100,000 in non-pecuniary general damages. In arriving at that award the trial judge found at para. 276 of his reasons:
In my opinion the weight of the medical evidence – Drs. Butler, Cancelliere, Upton and Weber and to some extent Dr. Travis and also Dr. Stewart in cross-examination – supports the view that Pedrum has suffered permanent, although mild, cognitive deficits as a result of the fire in which he experienced 10% CO poisoning, a significant period of hypoxia and smoke inhalation, all of which contributed to his impairment. There is a possibility, which I regard as a real possibility, in the order of 10%, that at some future time he may experience some degree of dementia perhaps five years earlier than would have been the case absent the fire. He almost certainly retains sufficient intellectual capacity to achieve an engineering degree, but his career may suffer. He will actually never know. I deal elsewhere with the economic consequences of that, but this is the place to consider the frustrations engendered by it. Apart from intellectual function, the emotional/psychological consequences of the fire for him have been severe, altering his personality, restricting his ability to engage in a full social life and burdening him with chronic anxiety and emotional constriction. In considering the quantum of general damages, I also must recall the experiences of the day itself, apart from the sequelae: the terror, the pain and suffering of the hospital stay and the immediate as well as long term disruption of his life. I assess his general damages at $100,000.
[23] Not unlike the situation with Zari, the findings of the trial judge were reasonable, and, while the award may be at the high end of the range, we are not prepared to interfere.
Future loss of income
[24] The trial judge awarded Pedrum $250,000 for future loss of income. In doing so, he took into account the medical evidence that showed that Pedrum suffered from cognitive impairment and that there was a realistic possibility that he too would suffer from early dementia. He also found that there was a real possibility that his career as an engineer could be significantly affected. Over a lifetime of work, and given the nature of his occupation, this amount is not unreasonable. We are unable to find any error in the trial judge's assessment of this head of damages.
[25] For these reasons the appeal by Axes respecting damages is dismissed.
The Cross-Appeal on damages
[26] In his initial set of reasons, the trial judge found that Zari would “clearly benefit today from the services available in a setting which left her free to come and go, but assisted her with activation programs and had therapeutic modalities as well” (at para. 231). He also found that Zari's “quality of life would be greatly enhanced by the social activation and rehabilitative opportunities available in the proper setting. Indeed, this is the only way to compensate her for the loss of her former life. The debate in the trial over the specific sites…surely did not cover all possibilities” (at para. 231).
[27] Although he had tables of costs in the future care consultant's report relating to Zari overcoming various disabilities, a revision was put in during the evidence and it was agreed that these figures would need to be redone after the trial judge's findings were available. In this context the trial judge also recognized the possibility that Zari might resist the semi-institutional setting that was being suggested and that this was a contingency to be taken into account in fixing the final award. After the release of his November 30 reasons, the trial judge met with the parties and asked counsel for Zari to advise him whether Zari wished to enter a semi-institutional setting or to live independently with assistance. Counsel for the plaintiffs objected on the basis that the question was not relevant having regard to the trial judge's earlier finding. The trial judge declined to give effect to this objection. They then complied with the trial judge's request and reported that she wanted to live on her own.
[28] Zari submits that the trial judge erred in asking for this information. The trial judge was alive to this submission. At para. 4 of his supplementary reasons (reported at [2003] O.J. No. 158), he stated:
Counsel for Zari submits that there is no “contingency” to be applied to the future care costs on the basis that Zari will resist an institutional setting; rather it is an issue of causation. The Court has already found that the negligence of the defendants caused the injuries to Zari and that “her present condition derived from the fire sufficed to make this kind of care reasonable now” (para. 231, November 30, 2001 Reasons). Further the Court has found that this is the only way to compensate her for the loss of her former life. The plaintiffs submit that whether and how Zari may use the amounts awarded to her for the value of future care costs is irrelevant to the award and cannot be relied on by the defendants to attempt to reduce the award in a fault based system. Reference is made to Andrews v. Grand & Toy Alberta Ltd., (1978) 1978 SCC 1, 83 D.L.R. (3rd) 452 at 466 (S.C.C.) where the Supreme Court observed that it was not for the court to conjecture how a plaintiff will actually spend the sums awarded to him after they have been awarded.
[29] As the trial judge observed, the choice in Andrews was between home care and the less expensive institutional care. The Supreme Court held that the setting that was the more advantageous to the plaintiff should be awarded. The trial judge then went on at para. 8 of his supplementary reasons to distinguish the present case as follows:
In my opinion, it is not reasonable to base an award to Zari on the cost of a type of care which would help her, but which she will not use. While Ms. Whitham and the court thought it reasonable that she would be helped by living in such an environment even now, the choice must be hers, and she has made it. It is the mirror image of Andrews. Here, the plaintiff claims to live independently which may or may not be the less expensive choice. Ms. Whitham's letter of January 9, 2002, (Ex. 98, tab 8) suggests that it will in fact be more costly, but other evidence is to the contrary. For my purposes, it does not matter. The point is not that Zari must mitigate her loss by accepting a lesser standard of care, there is no such requirement on an injured plaintiff. The point is rather that, faced with two reasonable possibilities for her immediate living arrangements, she has chosen to remain in her own home independently. Therefore, the costs of her future care while she remains in her own home should be the basis upon which the award for the next several years to perhaps age 57 is based. Thereafter, the impact of Dr. Upton's estimate of a 10-20% chance of premature need for assisted housing must be considered and then a reasonable schedule for moving towards the full costs of such housing as Zari ages.
[30] The trial judge did not misinterpret Andrews. The issue of where Zari would live was left open in his November 30 reasons and the trial judge made it clear that before deciding the matter he needed to have further evidence. Having received that evidence, he was entitled to take Zari's express wishes into account in awarding the future care costs he did. In so doing he was not departing from the principle of full compensation enunciated in Andrews.
[31] Accordingly, the cross-appeal is dismissed.
Costs at trial
The plaintiffs' costs
[32] The trial judge awarded the respondents their costs on a substantial indemnity basis fixed at $1,470,000 plus disbursements. This figure of nearly $1.5 million included a premium of $350,000 (the trial judge's endorsement as to costs is reported at (2003), 2003 ONSC 32527, 66 O.R. (3d) 284).
[33] There were two offers to settle made by the respondents which the trial judge found did not meet the requirements of rule 49.10(1) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The second offer made by the respondents was extremely close to the amount awarded by the trial judge. Counsel for the respondents submitted at trial that, given that the second offer was a “near miss” in respect to engaging rule 49.10(1), the trial judge should exercise his discretion to award substantial indemnity costs under rule 49.13. However, the trial judge found that his discretionary power under rule 49.13 did not extend to a case where the respondent's offer was greater than the recovery.
[34] The trial judge then considered whether the conduct of the defendants in this action provided a basis upon which he could order substantial indemnity costs apart from Rule 49. He reviewed a number of factors which included:
(i) the failure of the appellants to respond to the respon-dents' attempts to settle;
(ii) the failure to admit any liability at all;
(iii) the failure to respond in a timely way to requests for advance payments to assist in Zari's rehabilitation; and
(iv) the failure to admit in a timely fashion that Zari would never return to work.
[35] It is clear that the failure of the appellant to admit liability at an early stage was a dominant factor in the trial judge's consideration. He stated at paras. 18 and 19 of his costs endorsement:
Taking the three defendants, Axes, the tenant and the City, as a group, it is obvious that there was no defence to the plaintiffs' claims. The plaintiffs were entirely innocent; at the very worst they might have conceivably been open to a modest percentage of contributory negligence for leaving the apartment, but that is stretching matters. The tenant did not defend and he was thought to be uninsured. Nothing could realistically be expected from him if he was solely liable. But, at least after the inquest, it was, or ought to have been, clear that the owners would be liable for something because the rapid spread of the smoke was only possible due to the open fire door at the 5th floor stairwell. These doors are required to close automatically and this one clearly did not. That the owner could escape without any contribution at all was a known impossibility on that fact alone. The view of the Axes defendants may be judged by the fact that they called no evidence in their own defence. The obvious inference is that they knew they could not defend their maintenance practices. The City's liability was somewhat more problematic, although, despite its protestations of being ‘ambushed', it ought to have known from early days that it was seriously exposed on the issuance of the permit. The strange saga of Mr. Mori and the memo gives credence to the view that the City did indeed know it was exposed.
The conduct of defendants who have no arguable case against the plaintiff but nevertheless insist on a protracted trial has been criticized, and substantial indemnity costs awarded on several occasions. The plaintiffs referred to [Dube v. Penlon Ltd. (1992), 1992 ONCA 7449, 10 O.R. (3d) 190 (O.C.G.D.)] where Zuber J. fixed solicitor and client costs because it should have been obvious that the plaintiff, catastrophically injured by an overdose of anaesthetic, was blameless and liability rested with one or more of the defendants. That decision has been referred to at least twice in subsequent cases in the Court of Appeal as an exercise of discretion, and not a rule of law, but without criticism of it as the former. The present action is on all fours with the footnoted cases under review: the plaintiff Zari was catastrophically injured in circumstances where she could not be liable, and those who were potentially liable were all sued. The real fight was among them as to their shares of the liability to the plaintiff. The Axes defendants in particular, by refusing to admit any liability, put the plaintiffs to the prolonged and unnecessary task of proving their liability, which the plaintiffs duly did on the precise basis foreshadowed by the testimony at the Inquest and known to the defendants from the outset. This conduct strongly supports the request of the plaintiffs for substantial indemnity costs.
[36] The appellants submit that this is not a case for an award of costs on a substantial indemnity basis. They assert that the trial judge complimented all counsel, including counsel for the appellants, at the end of the trial on their professional and courteous conduct throughout the trial. This is also reflected in the trial judge's conclusion to his costs endorsement, at para. 99:
The trial began over two and one-half years ago, on January 8, 2001. From that day to this, I have been the beneficiary of the assistance of some of the finest counsel in the Province. I am grateful to them all.
[37] It should be noted that the trial judge, when referring to the conduct of the appellants, was not referring to their solicitors. His comments were confined to their clients and those who instructed them.
[38] The appellants further attack the costs award on the basis that it is inconsistent in the sense that if the liability portion of the case was clear from the outset this is not a case for a substantial indemnity costs award and a premium. However, the trial judge pointed out that the preparation involved complex evidence as to the spread of the fire and especially the smoke movement within the building; the relationship of the Building Code violations to the events; the study and understanding of Fire Department procedures; all of which required many days of investigation. (Because the appellants' did not admit liability, it was necessary for the plaintiffs to lead this evidence which would otherwise have related to the apportionment of liability as between Axes and the City). The trial judge also concluded that this was a catastrophic injury case which was complex medically and in relation to damages – particularly in relation to the cost of future care. Further, there was a significant issue on the question of the early onset of dementia and whether it could be triggered by an incident of hypoxia, or whether it was essentially assigned to patients with repeated blows to the head, such as boxers.
[39] Counsel for the respondents sought a premium on the award of costs on more or less the same basis upon which they had sought costs to be fixed on a substantial indemnity scale: success, the indifference of the appellants to the plight of Zari; failure to accept the realities of the case and their lack of a defence. In addition, they premised their claim for a premium upon the following written submission at trial:
It is submitted that this is one of those cases where the Plaintiffs lack the resources to fund a lengthy complex trial, but it is a case which, in the interest of justice, ought to have proceeded and competent and skilled counsel must continue to take on the challenge and continue to step forward and accept such cases.
Further:
The Plaintiff's counsel fees remain unpaid to date from 1995 to the present. The work in process has therefore been carried for over eight years with substantial amounts expended for disbursements by counsel. The Plaintiffs' law firm in effect has been the direct lender to the defendants. The work in process has a value in excess of $1,000,000.00. The actual cost to the Plaintiff's law firm is its cost of carrying that value is in excess of $350,000.00. It is submitted the defendants should pay a premium of $350,000.00 for this burden of the Plaintiffs and their counsel and for the privilege of conducting the litigation in the manner they did. The defendant Axes/Tandem has filed a Notice of Appeal on both liability and damages. The defendant City shelters under the damages appeal. Not only are the Plaintiffs' lawyers' fees unpaid to date, but there is a real prospect that the plaintiffs will not collect any of their costs until after all appeals available to the defendants are exhausted.
[40] When considering the premium issue, the trial judge made the following observations at paras 32 and 34:
The defendants submitted that the plaintiffs could not have it both ways. Having complained of the failure of the defendants to admit liability when it was a non-issue, they cannot now claim a premium for their great risk of non-recovery. The plaintiffs respond that the defendants insisted in keeping the issue alive and so must bear the cost of that decision. In my view, the risk kept alive by the defendants' failure to admit liability was not so great that it alone justifies a premium, but there is another factor: the need to encourage counsel to provide access to justice for the impecunious plaintiff by assuming the risk of delayed as well as possible non-payment.
In my view, the delay in payment for eight years with possibly two or more years to come as the appeal process continues, is a risk that was assumed by counsel for the plaintiffs in fulfillment of the duty to provide access to justice for the legitimate claims of impecunious parties. Combined with the uncertainty so long as liability was not admitted, it is a basis for a premium to recognize the very real cost of carrying the plaintiffs for that time. I am therefore of the view that a premium is called for. The plaintiffs seek $350,000 as an estimate of the real value of the service of carrying the plaintiffs for so long.
[41] There is no question that the costs award in this case is generous. However, with two exceptions, we see no basis for interfering with the trial judge's award of costs.
[42] Our first point of disagreement with the trial judge is in his award of costs in respect to a separate action against certain doctors and the hospital in which Zari was treated. The appellants were not parties to that action. The trial judge's reasoning in awarding these costs is to be found at paragraph 43 of his endorsement:
The plaintiffs brought an action against certain doctors and the hospital in which Zari was treated. It was held in abeyance and was dismissed when this action was completed. In my view, such an action was a necessary precaution to be taken by counsel for the plaintiffs to protect the clients' interests. That it was not dismissed until 2002 may well be related to the failure of the Axes defendants to admit liability. I think it was both reasonable and necessary and I will allow these charges.
[43] In our view, there is no proper basis for awarding costs against the appellants when they were not parties to the medical malpractice action. The trial judge suggests that perhaps the reason for not dismissing the action until 2002 may be related to the failure of the respondents to admit liability. He does not elaborate. While no doubt the medical malpractice action may have been a necessary precaution taken by counsel for the respondents, it is not a precaution that should be financed by the appellants.
[44] The second point of disagreement with the trial judge involves the award of substantial indemnity costs in respect to respondents' counsel appearing at the inquest related to the fire. Although we accept the rationale for an award of substantial indemnity costs insofar as it relates to the action itself, we do not agree that the factors considered by the trial judge in arriving at his conclusion in regard to the scale of costs in this action have anything to do with the inquest. There is no suggestion that the conduct of the appellants at the inquest in any way prejudiced the respondents. The costs of counsel appearing at the inquest should be on a partial indemnity basis.
[45] We would therefore grant leave to appeal the trial judge's costs order, but dismiss the appeal except with respect to the medical malpractice action and the costs of the inquest.
Costs as between the defendants
[46] Counsel for the City made a settlement offer to the appellants based on the assumption that all defendants would be found liable and that they would end up paying Mr. Doctorow's share as he was impecunious. The proposal assumed a 3:1 ratio between the appellants and the City after Mr. Doctorow's share was rateably apportioned so that the appellants would pay 75% and the City 25% of the damages. Costs, interest and any assignment of the judgment against Mr. Doctorow would be similarly treated. This offer was made pursuant to rule 49.12(1) of the Rules of Civil Procedure.
[47] The trial judge concluded that when the judgment was compared with the City's offer, the City had bettered its offer to absorb 25% of the damages.
[48] The trial judge awarded the City its costs payable by the appellants from seven days after the offer was made for those costs associated with the continuation of the liability portion of the trial. He fixed the costs on a partial indemnity basis in the amount of $85,000.
[49] As a result of the re-apportionment of the liability share on this appeal, the City no longer can be considered to have bettered its offer. We therefore give leave to appeal this costs order and allow the appeal by vacating the said order.
Costs of the appeal
[50] If the parties cannot agree on the costs of the appeal, they shall have ten days from the release date of these reasons to deliver written submission, not to exceed five pages in length double-spaced, along with their bills of costs and any other relevant documentation.
[51] With respect to the differential between the costs for the inquest (varied from substantial to partial indemnity), if the parties cannot agree on the amount of the differential, they may deliver further written submissions within ten days of the release date of these reasons. Said submission shall not exceed two pages double-spaced.
RELEASED: February 6, 2004 “KMW”
“Karen M. Weiler J.A.” “M.J. Moldaver J.A.” “Robert P. Armstrong J.A.”