Reynolds v. The City of Kingston Police Services Board et al. [Indexed as: Reynolds v. Kingston (Police Services Board)]

86 O.R. (3d) 43

Court of Appeal for Ontario,

Borins, MacPherson and Juriansz JJ.A.

May 17, 2007

Civil procedure -- Costs -- Particular orders -- Plaintiff's claim that defendant negligently performed autopsy on her child dismissed on ground that it failed to disclose reasonable cause of action -- Plaintiff successful on appeal and awarded costs of appeal -- Plaintiff impecunious -- Counsel in effect representing plaintiff on pro bono basis -- Court of Appeal fixing costs of all proceedings to date and ordering defendant to pay those costs immediately.

The plaintiff's claim that the defendant negligently performed an autopsy on her child was dismissed on the basis that it failed to disclose a reasonable cause of action. The plaintiff successfully appealed that decision and was awarded her costs of the appeal. The total costs of all proceedings, including the appeal, were $44,000. The plaintiff was impecunious, and her lawyer was effectively acting on a pro bono basis. The plaintiff sought an order fixing the costs and ordering that they be paid within 30 days.

Held, costs should be paid forthwith. [page44 ]

The costs of the appeal and the related proceedings were stand alone costs incurred by an impecunious litigant who wanted her day in court. Those costs were unrelated to the costs of the eventual trial. The plaintiff had struggled for five years to win the right to proceed to trial. There was no reason in principle why the plaintiff should not be paid her hard won costs now. The defendant was ordered to pay the plaintiff $44,000 forthwith.

RULING on costs from the order of the Divisional Court (O'Driscoll, Jennings and Wilson JJ.), 2006 16837 (ON SCDC), [2006] O.J. No. 2039, 267 D.L.R. (4th) 409.

Cases referred to 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757, [2006] O.J. No. 4248, 275 D.L.R. (4th) 321,38 C.P.C. (6th) 1 (C.A.); Rogers v. Greater Sudbury (City) Administrator, Ontario Works (2001), 2001 28087 (ON SC), 57 O.R. (3d) 467, [2001] O.J. No. 3346 (S.C.J.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01

Peter C. Wardle and Daniel R. Bernstein, for appellant. W. Niels F. Ortved and Jane A. Langford, for respondent. Sheila R. Block and Sandra Perri, for intervenor Association in Defence of the Wrongly Convicted. Kim Twohig and Amy Leamen, for intervenor Ministry of the Attorney General.

[1] Endorsement by THE COURT: -- On March 14, 2007, we released our decision reversing an order of the Divisional Court dismissing Ms. Reynolds' claim against Dr. Smith on the ground that it failed to disclose a reasonable cause of action, as required by subrule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. We reversed for the reason that the majority of the Divisional Court had erred in the application of the "plain and obvious" test that is central to subrule 21.01(1)(b). As a result of our decision, Ms. Reynolds may now proceed to trial on her claim that Dr. Smith negligently performed an autopsy on her child.

[2] Counsel agreed that Ms. Reynolds is to receive her costs of the appeal in the amount of $10,000. Counsel requested the opportunity to determine whether they could agree to the amount of costs of related proceedings, and when these costs were to be paid to Ms. Reynolds by Dr. Smith. Counsel have agreed that the total costs of all proceedings, including the appeal, are $44,000. However they cannot agree when Dr. Smith should pay Ms. Reynolds her costs. [See Note 1 below] [page45 ]

[3] It is Ms. Reynolds' position that the court should fix costs in the amount agreed to by counsel and order that they be paid within 30 days. Ms. Reynolds is impecunious. Her counsel has, in effect, been representing her pro bono. If she succeeds at trial, it is reasonable to expect that costs will follow the event and her counsel will then be compensated in part for his fees and will be able to recover his disbursements. Moreover, the outcome of the trial can have no effect upon Dr. Smith's obligation to pay the costs of the appeal and the related proceedings.

[4] Dr. Smith opposes Ms. Reynolds' contention, and submits that the proper order is that costs should be payable in the cause. He submits that following a trial he might be found to be immune from suit. He argues that where the issue on an appeal will be re-litigated at the trial, it is appropriate that costs be in the cause. In the alternative, Dr. Smith submits that he pay the costs into court to stand as security for his own costs, should he be successful at trial. He claims that it would be unfair to order that he pay Ms. Reynolds her costs in circumstances where he might be unable to recover his costs of a successful trial from her.

[5] We agree with the position taken by counsel for Ms. Reynolds. The claims advanced by her are novel, and in focusing on the integrity of the system in place in the province for conducting autopsies on infants and young children, involve matters of public importance. However, it is important to separate the purpose of Ms. Reynolds' appeal and the proceedings that preceded it, and the forthcoming trial. Ms. Reynolds has struggled for five years to win the right to proceed to trial. Dr. Smith has vigorously opposed her right to trial at every step of the way. She was forced to come to this court simply to have her right to trial confirmed. The issues to be determined at trial will be Dr. Smith's immunity from suit and his liability for negligently conducting an autopsy. As neither issue was determined on Ms. Reynolds' appeal to this court, this is not a case in which the issues before the Court of Appeal will be litigated at trial, a situation in which an order that costs be in the cause is sometimes appropriate.

[6] Thus, in our view, the costs of the appeal and the related proceedings are stand alone costs incurred by an impecunious litigant who wants her day in court. These costs are unrelated to the costs of the eventual trial. We see no reason in principle why Ms. Reynolds should not be paid her hard won costs now. Nor do we see any reason in principle why the costs should be paid into court. In our view, the agreed costs of $44,000 must be paid forthwith.

[7] Taking on an important cause as that of Ms. Reynolds on what, in effect, is a pro bono basis is in the best tradition of the legal profession. To do so often results in a financial sacrifice on [page46 ]the part of a lawyer as he or she is not paid for legal services or disbursements as the litigation moves through the system. As other courts have observed, through the ordering of costs payable forthwith during the cause of what is often protracted litigation, the financial burden assumed by lawyers accepting retainers pro bono is reduced. Orders of this nature will assist in more people, like Ms. Reynolds, having access to justice as they will permit more lawyers to accept this type of retainer. See 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757, [2006] O.J. No. 4248, 275 D.L.R. (4th) 321 (C.A.), at paras. 45-48; Rogers v. Greater Sudbury (City) Administrator, Ontario Works (2001), 2001 28087 (ON SC), 57 O.R. (3d) 467, [2001] O.J. No. 3346 (S.C.J.), at paras. 20-21.

[8] Accordingly, we fix costs in the agreed amount of $44,000 and order that Dr. Smith pay the costs forthwith.

Order accordingly.

Notes ----------------

Note 1: The costs of the motion to strike out Ms. Reynolds' claim that was dismissed by Coo J. were fixed by him at $15,805.93 and are not in issue before this court.