SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 02-CV-230528CM1
DATE: 20120106

RE: Zmora Gutbir, a mentally incapable person, and Tamar Gutbir and Yuval Gutbir, minors, by their Litigation Guardian, Shaya Petroff, Avraham Gutbir and Atalyah Gutbir, Plaintiffs,

AND:

University Health Network and R. Derek Nicholson, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Hilik Y. Elmaliah and Andreas G. Seibert , Counsel for the Plaintiffs

Deborah Berlach, Renee A. Kopp and Emily McKernan, Counsel for the Defendant University Health Network

HEARD: By correspondence

ENDORSEMENT

[ 1 ] This addendum to my written endorsement on costs released December 21, 2011 was necessitated as a result of correspondence sent to me by Plaintiff’s counsel after release of my reasons.

[ 2 ] Briefly, following the delivery of a jury verdict on this medical negligence claim, the solicitor for the Plaintiffs requested an attendance before me to deal with the form of the judgment and the issue of costs. I agreed and met with counsel on January 26, 2011. During that meeting, the form of the judgment was dealt with and timelines were set for the delivery of written submissions on costs. I indicated that the solicitor for the Plaintiffs was to deliver costs submissions by February 28, 2011 and the solicitor for the Hospital would deliver their materials by March 14, 2011.

[ 3 ] This timetable was altered at the request of counsel for the Plaintiffs so that they delivered their Bill of Costs and costs submissions by March 21, 2011 and the Defendant delivered their materials by April 11, 2011. This was done on consent between counsel and with my agreement. As I noted in my written reasons at paragraph 5:

The written submissions from the solicitor for the Plaintiffs on costs are voluminous, comprising 21 pages of written argument, a costs outline, and 162 pages of dockets. In addition, although not requested from me, reply costs submissions were sent which comprised a further 24 pages of written argument. Finally, a brief of authorities containing 20 cases was provided.

[ 4 ] The solicitor for the Plaintiffs wrote to me on April 12, 2011 indicating they intended to send “brief reply submissions”, which had not been requested nor anticipated by me. Counsel for the Defendant wrote on April 15, 2011 advising they had no objection to the Plaintiffs providing brief reply submissions. Thus, on May 3, 2011, counsel for the Plaintiffs submitted reply materials, which consisted of a further 24 pages and included a section on the expert disbursements claimed by the Plaintiffs.

[ 5 ] All of these materials were considered and my written reasons on costs were released on December 21, 2011.

[ 6 ] By letter dated January 4, 2012, counsel for the Plaintiffs wrote to me directly without any consultation with the solicitor for the Defendant and requested a further attendance before me to address concerns set out in my reasons dealing with the lack of information contained in the materials on the issue of disbursements. The letter then went on to refer to the various disbursements that had not been allowed by me and argument was provided as to why those disbursements were proper and ought to have been allowed by the Court. The letter concludes with the statement, “It is submitted that in light of the foregoing, these disbursements are reasonable.”

[ 7 ] The following day, January 5, 2012, I received a letter from the solicitor for the Defendant objecting to the correspondence that had been sent by Mr. Seibert, indicating her view that it was improper for counsel to have contacted me without first having ascertained the position of defence counsel on a further attendance, noting the conduct of the solicitor for the Plaintiffs did not accord with the Principles of Civility for Advocates .

[ 8 ] In light of the letters received from counsel, it was necessary to release an addendum to my written reasons on costs.

[ 9 ] I agree that the actions taken by the solicitor for the Plaintiffs were inappropriate. I had not requested any further contact from counsel and if Mr. Seibert was of the view that it was necessary for counsel to attend before me, he ought to have contacted Ms. Berlach and ascertained her views on this point. Assuming it was not on consent, the appropriate course of conduct would have been to write to the Court and request an opportunity to make oral submissions.

[ 10 ] Instead, Mr. Seibert wrote to me advising that there had been a “case conference” and suggesting there had been some sort of expectation that the Court would advise counsel if there was a need for oral submissions. He then proceeded to refer to the various disbursements that had been disallowed and make his argument as to why they ought to have been allowed.

[ 11 ] In my view, proceeding in this fashion is highly inappropriate and disrespectful to the Court. As pointed out in the written submissions on counsel for the Plaintiffs, their law firm is one of the most experienced medical negligence firms in the province. They are well-acquainted with the preparation of Bills of Costs and written submissions on costs. They chose to put together their materials in the fashion that they did.

[ 12 ] Counsel for the Defendant, in their written materials, raised the issue of the disbursements and the lack of detail contained in the submissions from the Plaintiffs on the various expert accounts. Although not requested by the Court, the solicitor for the Plaintiffs delivered reply materials and although reference was made to expert reports, no further information was provided to assist the Court in identifying neither the expert fees being claimed nor the reasonableness of these amounts. Although counsel for the Plaintiffs was aware that the position of the Defendant was that it was impossible to determine the reasonableness of the expert accounts based on the information provided, there was no request at that point for an opportunity to make oral submissions to the Court to provide further information to justify the inclusion of the expert accounts in their Bill of Costs.

[ 13 ] In my written reasons, I specifically commented on the failure of the Plaintiff’s counsel to provide sufficient information to the Court on the various expert disbursements claimed. The onus is on the party seeking to recover a disbursement to persuade the Court that it was reasonable and necessary for the trial of the action. The Plaintiffs failed to do so concerning a number of expert accounts and consequently, they were disallowed.

[ 14 ] The letter from Mr. Seibert dated January 4, 2012 is, in reality, further submissions on costs which ought to have been included in the original written materials. It is an attempt to re-argue my decision on costs, which was based on a consideration of all of the materials that had been submitted by counsel, including the reply materials of the Plaintiffs. My written reasons released December 21, 2011 were final and did not request any further submission, either oral or in writing, from either counsel. As a result, I am not prepared to consider the contents of the letter from the solicitor for the Plaintiffs dated January 4, 2012.

D.A. Wilson J.

Date: 20120106