minicounsel

COURT FILE NO.: 05-CV-29868

DATE: 20120516

BETWEEN:

NADIA FRIEND

Plaintiff

– and –

DR. JAMES M. WATTERS,

DR. J. SMITH, THE OTTAWA HOSPITAL (CIVIC CAMPUS),

DR. IAN ZUNDER, DR. JOHANNES PENNING, DR. GORDON REID and MARK RAYMOND FARRELL

Defendants

Richard R. Marks, for the Plaintiff

Paul Millican and Stephanie Pearce, for the Defendants

tOSCANO rOCCAMO j.

Overview

1Nadia Friend commenced an action to recover damages for loss in respect of alleged medical negligence related to her post-operative care following surgery on August 12, 2003 to remove a suspected cancerous legion in her bowel.

2The Defendant, Dr. James Watters performed the surgery. Post-operative pain was managed by analgesia administered by epidural catheter installed by the Defendant Dr. Julia Smith. After surgery, Ms. Friend was followed by Dr. Watters, as well as members of the Acute Pain Service of the Ottawa Hospital including nurses and the Defendant anaesthetists, Dr. Ian Zunder, Dr. Gordon Reid, and Dr. Mark Farrell. They are all colleagues of the Defendant Dr. Johannes Penning, who was at all times material director of the Acute Pain Service.

3Following her surgery, Ms. Friend developed an epidural abscess and required more surgery to drain the abscess on August 18, 2003.

4Ms. Friend alleged, that as a result of the negligence of the Defendants, she was left with disabling chronic pain for which she claimed damages against them for breach of the standard of care and for failure to obtain her informed consent to the administration of epidural anaesthesia. She settled her claim against the Ottawa Hospital and nurses, but pursued her action for damages against the doctors.

5Between December 1 and December 8, 2011, I heard the Defendant doctors’ motion under r. 20 for Summary Judgment dismissing all or part of the action on the grounds that:

Ms. Friend failed to sue Dr. Watters and Dr. Smith within the prescribed limitation period;
She failed to make out the elements of liability including breach of the standard of care for diagnosis and treatment of the epidural catheter infection, failure to obtain informed consent to the use of epidural catheter, and causation; and
Her settlement with the Ottawa Hospital relieved Dr. Penning as Director of the Acute Pain Service of liability as a result of which she could not continue her action against him as physician in the Acute Pain Service.

6My Reasons in respect of the Defendants’ motion were released January 19, 2012 and will not be repeated here, except to note that the Defendants’ motion for Summary Judgment was dismissed, save and except with respect to certain allegations pertaining to Dr. Watters’ involvement in the surgery, and Dr. Penning’s involvement as a member of the Acute Pain Service.

7Guided by the Court of Appeal’s decision in Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, released on December 5, 2011, on the 3^rd day of argument of this motion, I concluded that it would not be in the interests of justice to make dispositive findings without the advantage of hearing testimony viva voce on the matters described in the extensive record before me; and that it was necessary to hear directly from all medical witnesses with respect to the question of diagnosis of infection in order to arrive at the appropriate standard of care. With respect to the issue of informed consent, and the related issue of causation, I concluded that there would be questions of credibility best decided after trial before a judge familiar with the case as a whole.

8Pursuant to r. 20.05(1) of the Rules of Civil Procedure, I directed the action proceed to trial expeditiously, subject to the direction of the Regional Senior Justice if the estimated time for trial is greater than three weeks. In addition, I imposed a number of terms under r. 20.05(2) requiring the case to be assigned to a Master for Case Management to put in place a timetable for all remaining steps in the proceeding. As part of the timetable, I ordered the matter set down a for a further Settlement Conference, if requested by both parties, and a Trial Management Conference. Most importantly, as this will have some bearing on my Reasons with respect to costs, I ordered the affidavits of the parties and cross-examinations on the affidavits which were used in argument before me, be used at trial in the same manner as examinations for discovery. I ordered further discovery limited to matters not already covered in the affidavits and cross-examinations.

Costs Incurred by the Parties

9The Costs Outline of the Plaintiff reflects fees inclusive of estimated counsel fee for appearance of $108,307.50 plus $1,145.97 in disbursements. This was based on a partial indemnity rate of $350 per hour for 309.45 hours spent on the motion. The hours all relate to services performed by senior counsel, Richard Marks, whose actual rate charge to the client is $400 per hour.

10The Costs Outline of the Defendant Physicians reflects fees inclusive of estimated counsel fee for appearance on the motion on a partial indemnity basis of $47,098.50 plus HST on fees, plus disbursements of $5026.65 for a total of $58,247.96.

11In addition, the Defendants have delivered a Bill of Costs for Dr. Johannes Penning claiming costs for the action on a partial indemnity basis of $33,529.37 plus disbursements of $1405.64, including applicable taxes.

12As I observed in my Reasons for Judgment, the Plaintiff’s counsel claimed substantially more per hour for partial indemnity fees, notwithstanding the fact that he charged a lower full indemnity rate than opposing counsel. I also observed that Plaintiff’s counsel claimed substantially more in billed hours than the Defendants.

13I informed counsel that in the exercise of my discretion under s. 131 of the Courts of Justice Act, in addition to the result on the motion and any Offer to Settle, I would have regard to the factors listed in r. 57.01, and in particular, r. 57.01(1)(0.b) concerning the amount of costs that the unsuccessful party could reasonably except to pay in relation to the proceedings for which costs were being fixed.

14The Reasons for Judgment directed that if counsel were unable to agree on costs, they were to exchange written submissions on costs, all of which was completed by March 8, 2012.

Issues

15The parties’ submissions on costs raise the following issues:

Whether the Plaintiff should be awarded substantial indemnity costs in respect of the Summary Judgment Motion;
Whether the time claimed for services performed on behalf of the Plaintiff for the motion was excessive;
Whether other time claimed for services which may be considered trial preparation on behalf of the Plaintiff should be fixed and left “in the cause” or left to the trial judge “in the cause”;
The quantum of partial indemnity costs of the motion which should be awarded to Dr. Penning and Dr. Watters; and
The quantum of partial indemnity costs that should be awarded to Dr. Penning for the action dismissed against him.

Should the Plaintiff receive Substantial Indemnity Costs in the Motion?

16The Plaintiff takes the position that it was not reasonable for the Defendants to have brought this motion. If awarded costs on a partial indemnity basis, it is observed that although the Plaintiff was largely successful on the motion, save and except with respect to Dr. Penning, and certain claims advanced against Dr. Watters, she would still lose about a third of her counsel’s fees and that this would have a chilling and negative effect on access to justice.

17In the alternative, based on the definition of substantial indemnity rate in r. 1.03, if awarded fees on a partial indemnity scale, Plaintiff’s counsel seeks a partial indemnity rate of $266 per hour.

18The Court of Appeal in Combined Air, supra, made it plain that costs on a Summary Judgment motion are presumptively on a partial indemnity scale unless a party acted unreasonably or in bad faith for the purpose of delay, as stated in r. 20.06. See: Combined Air at para. 67.

19I find there is no evidence that the Defendant Physicians acted unreasonably or in bad faith. I accept that the Defendants pursued this motion based on a lack of expert evidence, and based upon a long line of jurisprudence requiring a plaintiff to establish a breach of the standard of care by expert evidence. The Plaintiff did not produce Dr. Rock’s and Dr. Brill- Edward’s reports until after she was served with the Defendants’ motion materials. Moreover, the Defendants pursued their motion on narrow grounds related to the limitation periods for Dr. Smith and Dr. Watters, the failure to produce expert opinion and on the basis that no duty of care for Ms. Friend would be recognized in law as it pertains to Dr. Penning.

20I further find the partial indemnity rate sought by the Plaintiff is reasonable on a motion of this kind. Accordingly, the Plaintiff shall be awarded her costs on the motion on a partial indemnity basis at $266 an hour.

The Time Claimed by the Plaintiff for this Motion

21The Defendant Physicians assert that the time claimed by the Plaintiff is excessive. It is observed that the Plaintiff claims 309.45 hours for the services of senior counsel in respect of the motion, while the Defendants only claim 77.6 hours for senior counsel and 106.7 hours for junior counsel. Based on the Defendants’ breakdown of hours, and their ratio of time claimed for senior as opposed to junior counsel, the Defendants submit 58% of the time claimed by Plaintiff’s counsel should be calculated at a junior counsel rate, for a total of $25,794.00

22In addition, the Defendants assert that the Plaintiff has claimed excessive amounts of time in a number of areas, as follows:

Motion preparation: the Plaintiff claimed 103.25 hours over three time periods, including 31.45 hours between October 20th and 25th; 37.5 hours between November 2th and 7^th; and 40.35 hours for preparation for an attendance on the motion between December 1 and December 7, 2011. In contrast, the Defendants claimed 28 hours for the same services and submit the Plaintiff’s claim should be reduced to 30 hours;
Cross-Examination: The Plaintiff claimed 24 hours for preparation of the Plaintiff’s and attendance on cross-examinations. The Defendants assert this should be reduced to 10 hours on the basis that this should not have required extensive preparation for cross-examination on affidavits prepared and reviewed a few months earlier;
Review of the Defendants’ motion material: The Plaintiff claimed 21 hours for these services, whereas the Defendants posit that 8 hours for this service is more reasonable.
Affidavit Evidence: In respect of the preparation and review of affidavit evidence, the Plaintiff claimed 52.85 hours for preparation and review of 3 affidavits, whereas the Defendants take the position that only 24 hours should be allocated.

23In my opinion, a motion for Summary Judgment advanced on behalf of Defendant Physicians represents is a very high risk situation for any Plaintiff. If not properly and completely addressed, the result can be the termination of the Plaintiff’s entire claim. The Plaintiff faced substantially more risks than the Defendants. While it is true that the Defendants’ reputations and professional conduct were also in the balance and that a potential novel duty of care was being asserted in respect of Dr. Penning, it is well known the Defendants have substantial resources at their command and that the risk of costs against them would not pose the same barrier to access to justice generally faced by most Plaintiffs. In my opinion, Ms. Friend was entitled to representation by senior counsel best qualified to “put the best foot forward” in response to the Defendants’ motion for Summary Judgment.

24In addressing the concerns raised by the Defendants in respect of the time expended by Plaintiff’s counsel for various services in relation to the motion for Summary Judgment, and later in these Reasons when considering the Plaintiff’s concerns in respect of costs claimed on the motion by Dr. Penning and Dr. Watters, and Dr. Penning in the action dismissed against him, I have taken the approach to awarding costs expressed by the Court in Casson v. Wai-Ping, [2006] O.J. No. 138 (SCJ), as cited with approval at para. 58 by Perell J. in Jaikaran v. Austin, [2011] O.J. No. 4840 as follows:

The Casson Case was part of mass litigation against a doctor, and Justice R. MacKinnon granted summary judgments in a tranche of the cases being brought against the physicians. Some of the motions were successful and Justice R. MacKinnon was asked to assess the costs award. At para. 9 of his Reasons for Decision, he described the approach to awarding costs as follows:

In fixing costs, a judge is not assessing them as if he or she were performing the function of an assessment officer. The object is to avoid the delay and added costs of a full assessment. The court attempts to determine what the services devoted to proceedings are worth. The incurring of costs and time spent by counsel in litigation is essentially the exercise of their judgment. The prudence, foresight and imagination of that judgment must be considered at the time the disbursement was incurred or the work done. It is inappropriate to apply a test of hindsight in determining whether a service or disbursement was for an extra not reasonably necessary to advance the plaintiff’s position. The time to view the decision to commit services to an issue is prior to it being taken.

25With this approach in mind, I have determined that the total time spent on behalf of the Plaintiff should be subject to reduction for the services of senior counsel in the following areas:

Motion preparation: In my opinion, some duplication of effort would have been necessary for preparation due to the fact that the Defendants’ motion was not reached as predicted in the week of November 2, 2011. Through no fault of counsels’, the matter had to subsequently be put over again to be heard by a justice experienced in this area. I also note that the time claimed for preparation by Plaintiff’s counsel after December 1 would have been minimal, given that he omitted to claim costs of attendance on the motion on December 8.In my opinion, a reasonable amount for preparation of a 6 day motion, taking into account some duplication of hours, should be fixed at 75 hours.
Cross-Examination: The Plaintiff concedes that cross-examination lasted 7.5 hours between October 26 and October 28, 2011 but claims 14 hours preparing witnesses for cross-examination. In my opinion, given the stakes faced by the Plaintiff, thorough preparation for cross-examination would require at least as much time as attendance on the cross-examination itself. I therefore allow a total of 20 hours for preparing and attending at cross-examination.
Review of the Defendants’ motion materials: In light of the fact that the Defendants filed over three supplementary volumes of motion material and case books with more than 30 cases, a reasonable amount for review of the Defendants’ material is 20 hours.
Affidavit evidence: The Plaintiff’s claim for 52.85 hours of preparation and review of 3 affidavits, including that of Ms. Friend, is excessive. Although the extensive medical record and examinations for discovery would have required review to ensure the draft affidavits were accurate and complete, in my opinion, a reasonable amount for this service would be 40 hours.

26In summary, I allow a total of 155 hours for the above services. In addition to that time, I allow an additional 47.35 hours as approved at the table found at page 3 of the Costs Submissions of the Defendant Physicians dated February 17, 2012, being the hours allocated for the Supplementary Factum, review of the New Factum, Attendance at Court, and preparation for and attending on the motion. Therefore, I allow 202.35 hours for preparation and attendance on the motion at a partial indemnity rate of $266 an hour to arrive at costs fixed in the amount of $53,825.10 which I round up to $54,000.

27In arriving at an award of $54,000 payable by the Defendants to the Plaintiff, I have had due regard to the factors set out in r. 57.01(1) including the amount of the claims advanced by the Plaintiff well in excess of $500,000, not including loss of income, the complexity of the proceeding involving multiple parties and an extensive factual matrix relating to the subject matter, and the obvious importance of the issues to both sides in this litigation. I have also considered the experience of counsel commanded by this kind of motion, as well as the appropriate hourly rates and time spent by the parties.

28In addition, I have had due regard to the amount of costs that would be considered fair and reasonable, having regard to the result produced, as dictated by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2006), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 24. I have also considered the dicta of Justice Epstein expressed at paras. 52 and 53 in Davies v. Clarington (Municipality), 2009 ONCA 722, where she stated as follows:

In Andersen v. St. Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court set out several principles that must be considered when awarding costs:

The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

29I have attempted to identify comparable awards in like cases, and although every award of costs must be fixed in accordance with the circumstances arising in each case, I have concluded that an award of costs on such a motion of such duration would range between $20,000 on the low end, and $57,000 on the high end for a “trial ready” case in medical negligence: See Kay v. Credit Valley Hospital, [2008] O.J No. 1237; Suserski v. Nurse, [2007] O.J. No. 965; and Jaikaran v. Austin, 2011 ONSC 6336.

30In addition to the $54,000 that I have allowed in fees fixed on a partial indemnity, the Plaintiff shall have her disbursements of $1,145.97 plus applicable taxes on fees and disbursements.

The Time Claimed by the Plaintiff for Trial Preparation

31In light of the Order I have made allowing the affidavits of the parties, and cross-examinations on the affidavits to be used at trial in the same manner as examinations for discovery, it is reasonable that some of the time claimed by the Plaintiff for these services, as well as other services not specifically allowed on the motion should be fixed and payable “in the cause.”

32The Defendants take the position that fees for a number of services listed at page 3 of the Costs Submissions of the Defendant Physicians dated February 17, 2012, should be fixed and left “in the cause.” In particular, the Defendants take the position that fees in relation to the review of the file; to telephone communications with Dr. Rock in the review of the Defendants’ motion material; to a portion of the time expended drafting and reviewing affidavits; to review of Dr. Kay’s report; and in respect to the Plaintiff’s request for an adjournment in connection with the Plaintiff’s failure to serve and file affidavits of Dr. Simor, Dr. Chan and Dr. Rock in the Plaintiff’s motion record should be fixed and left “in the cause.”

33In response, the Plaintiff takes the position that very little from the affidavits and cross-examinations on the affidavits can be used by the Plaintiff at trial. In addition, the Plaintiff submits that the file review, telephone call with Dr. Rock and drafting and review of affidavits will not be useful at trial. In respect of the Plaintiff’s request for an adjournment, the Plaintiff submits this time was needlessly expended by reason of the Defendants’ refusal to acknowledge that the Plaintiff’s reports had been served a considerable period of time in advance of the motion and that no prejudice arose to the Defendants by reason of the technical failure to serve notice pursuant to the Ontario Evidence Act. The Plaintiff invites the Court to invoke r. 57.01(e)(f) as conduct on the part of a defendant tending to lengthen the proceeding resulting in a step that was unnecessary in all of the circumstances.

34Depending upon the outcome in these proceedings, there may be merit to concerns raised by both sides in this debate. Therefore, I have concluded that all of the time pertaining to the services rendered to the Plaintiff between May 5 and December 8, 2011, not previously addressed by these Reasons is best left to the trial judge to deal with in the cause. To that end, I adopt the approach described in Optech Inc. v. Sharma, 2011 ONSC 1081; and Leclair v. Ontario (Attorney General) 2010 ONSC 3147.

35Specifically, I leave it to the trial judge to consider and award as appropriate in the cause, some 47.35 hours for the following services:

DATE	ITEMS	HOURS
May 5 & 18	Telephone Attendance with Counsel	0.50 hours
June 1-3	Reviewing File	23.75 hours
June 6-9	Telephone call with Dr. Rock; Reviewing doc docs from Defendants; Reviewing Defendants’ Motion Material	2.50 hours
June 14-27	Drafting and Reviewing Affidavits	12.85 hours
October 19	Reviewing Defendants’ Expert Report	3.75 hours
October 26-28	Preparing for and Attending Cross-Examinations	4.0 hours

36In my opinion, a trial judge is best positioned after hearing the entire trial narrative to determine what portion of the above-noted time for services performed was useful for the trial.

Costs of the Motion of Dr. Penning and Dr. Watters

37The Defendants submit that since Dr. Penning succeeded on his motion for Summary Judgment, he should be awarded 1/6 of the Defendants’ partial indemnity costs for the motion. The Defendants’ Costs Outline provides a task-based breakdown of the fees charged for work performed sufficient to allow determination of an appropriate award of costs.

38In respect of the claims struck against Dr. Watters, the Defendants submit the Plaintiff never abandoned these claims but added new ones in the most recent Fresh As Amended Statement of Claim. Moreover, the Plaintiff did not provide an expert opinion to support her claim that Dr. Watters recommended unnecessary surgery or failed to properly perform or supervise the surgery. Since an expert opinion was required to establish a breach of the standard of care, Dr. Watters was partially successful and should be awarded 1/3 of 1/6 of the costs, or 1/18 of the Defendants’ total costs on this motion. This results in an estimated 22% of the Defendants’ total partial indemnity costs on the motion. The Defendants have claimed 20% of their costs on a partial indemnity basis at $11,649.59 plus disbursements of $1,005.33 for a total of $12,654.92.

39The Plaintiff argues that the Defendants have not submitted adequate breakdown on how the $11,649.59 was arrived at. In addition, in respect of the claim against Dr. Penning, the Plaintiff argues that an award of costs should not be used to inhibit a reasonable novel claim from being presented, and that, in any event, relatively little time was spent on the presentation of this claim and in argument at the hearing of the Summary Judgment motion.

40With respect to the claims against Dr. Watters, the Plaintiff suggests they were never seriously advanced beyond the pleading stage and that the Defendants were advised the claim against Dr. Watters was really based on his failure to properly supervise the Plaintiff`s care. Accordingly, the Plaintiff submits only nominal costs should be awarded to Dr. Watters.

41As I have previously indicated, this is not an assessment of cost such as would be undertaken by an assessment officer. I am satisfied with the breakdown of hours spent and the rates sought for costs as described in the Defendants’ Costs Outline dated December 9, 2011.

42I also observe that the Plaintiff has misstated the basis of my dismissal of the claim against Dr. Penning. At para. 151 of my Reasons, I indicated that the pleading against Dr. Penning failed to establish even a prima facie duty of care, and that it was not reasonably foreseeable that harm would arise to Ms. Friend if Dr. Penning did not impart information to Ms. Friend and his colleagues in the Acute Pain Service as alleged. I clearly found that no duty of care was established. I also clearly rejected the suggestion that the claim against Dr. Penning was a simple amplification of well-established jurisprudence, as the Plaintiff suggests.

43On the other hand, I do agree that very little time and effort were devoted on the hearing of the Summary Judgment motion to the claims advanced against Dr. Penning and against Dr. Watters insofar as allegations that he recommended unnecessary surgery or failed to properly perform or supervise the surgery are concerned. In my opinion, this would not warrant an allocation of 20 to 22% of the Defendants’ total fees and disbursements on the motion to these parties.

44In my opinion, a reasonable award for costs of the motion pertaining to Dr. Penning and Dr. Watters is the sum of $7,500 inclusive of fees, disbursements and applicable taxes. This sum may be set off against the amount paid by the Defendants to the Plaintiff on the motion.

Costs of the Action against Dr. Penning

45Dr. Penning was successful in his motion for Summary Judgment and, therefore, should be awarded partial indemnity costs of defending the action. The Defendants have produced a detailed Bill of Costs for Dr. Penning seeking partial indemnity fees for the costs of the action including GST and HST, in the amount of $33,529.37. This represents fees incurred specifically for the defence of Dr. Penning, together with 1/6 of fees incurred to defend the action against all Defendant Physicians from December 2007 to the date of the motion for Summary Judgment. Dr. Penning claims no fees relating to tasks performed for motions in these proceedings where costs have already been awarded.

46The Plaintiff argues and the Defendants concede that there is discrepancy between the Bill of Costs of Dr. Penning and the Costs Submissions of the Defendant Physicians dated February 17, 2012. I note the discrepancy is not significant, and that the Defendants rely on the Bill of Costs which enures to the Plaintiff`s benefit.

47I find no merit to the Plaintiff`s argument that the Settlement Agreement with the Ottawa Hospital terminated any obligation for the Plaintiff to pay costs to Dr. Penning in the action. The Settlement Agreement between the Plaintiff and the Ottawa Hospital did not affect Dr. Penning′s claim for costs since he was not a party to the Agreement. Moreover, it was only after the Plaintiff was faced with a motion by the Ottawa Hospital to enforce the Settlement Agreement that the Plaintiff filed a new Statement of Claim removing reference to Dr. Penning as the Director of Acute Pain Service. Dr. Penning never agreed to forego his costs at the time and in fact, there was no agreement at all concerning his costs.

48I also give no effect to the Plaintiff`s suggestion that either a Sanderson or a Bullock order are appropriate in this case. None of the Defendants attempted to shift responsibility onto each other; none of the Defendants caused Dr. Penning to be added as a party, and the cause of action against Dr. Penning was independent of the causes of action against the other Defendants. In addition, there is no unsuccessful defendant to which one may attach liability for costs since none has been found liable to date.

49In terms of the total fees claimed on behalf of Dr. Penning, the Plaintiff has miscalculated the proportion of Dr. Penning`s fees as relates to all of the Defendants’ fees which the Plaintiff estimates at some $129,414 plus individual defences of $60,000. The fees claimed by or on behalf of Dr. Penning are sometimes for the whole amount, sometimes for half of the amount, sometimes for 1/5 of the amount and sometimes for 1/6 of the amount, depending upon the service performed. The Plaintiff also incorrectly states that amounts claimed by the Defendants may be multiplied by six when the multiplier clearly only applies to certain services. As an example, the Plaintiff notes that the amount for services in connection with settlement discussions with the hospital, if multiplied by six, would result in a fee of $50,000; however, this service did not relate to all Defendants.

50A detailed review of the time claimed for fees by the Defendant Dr. Penning was undertaken by the Plaintiff to arrive at the conclusion that fees claimed are simply too high. As previously noted, in awarding costs herein, I have not undertaken the detailed review involved in an assessment of fees, but have considered the Plaintiff`s concerns in arriving at an overall award which is reasonable and fair having regard to all of the factors in r. 57.01 To that end, I give voice to the following concerns expressed on behalf of the Plaintiff:

The time claimed for preparation and drafting of Dr. Pennings affidavit of documents, although a modest amount as compared to fees overall, does seem somewhat high if only four documents were contained in the affidavit of documents. I would expect the work of a clerk to form the lions share of time expended for this service.
The motion for production of privileged documents appears to make reference to the motion for which costs were already fixed by Master MacLeod. In any event, if I am mistaken, the amount claimed is high for a motion of this kind. The student hours are particularly excessive for such a motion.
I have no difficulty with the hours claimed with respect to the other services performed, nor with the disbursements, and Dr. Penning`s proportionate share of same.
With respect to the settlement discussions with the hospital, I do find that the total sum claimed in the amount of $8,308.61 is high for this service.

51The Plaintiff submits reasonable fees for the action in connection with Dr. Penning would be in the order of $12,000; however, it is argued that any costs in relation to Dr. Penning as Director of the Acute Pain Service should not be considered so as to reduce fees for an award to the approximate sum of $3000. For the reasons I have already expressed, I cannot give effect to this argument. Dr. Penning was entitled to the benefit of counsel as an individual Defendant physician and the agreement with the hospital did not preclude the award of fees for his defence. In addition, he would have been entitled to a defence in relation to those claims that persisted beyond the settlement with the hospital.

52Although I appreciate the importance to Dr. Penning, and indeed to other physicians in like position of resisting a claim of the novel kind advanced on behalf of Ms. Friend, on the other hand I must consider what is a fair and reasonable award for costs of this action, having regard to the relative brevity of argument on this issue as part of the Summary Judgment motion overall, and the relative lack of development of the claim on behalf of the Plaintiff. To my way of thinking, this reflects that the claim was not “trial ready”, and this was no doubt evident to the Defendants.

53Considering the “hard” costs of Dr. Penning alone amount to approximately $27,451.51, and that the balance of fees claimed on Dr. Penning’s behalf for the action relate to services for which the other Defendant Physicians have received benefit and will continue to receive benefit until the ultimate disposition of this action, I must apply an appropriate reduction to fees for the services I have addressed above which appear to be high for the service performed, or which appear to be covered by the costs award of Master MacLeod. After giving consideration to these matters, I must also then consider the principles expressed in Boucher, supra, and in Davies, supra, when arriving at an award that facilitates access to justice, while at the same time, operates as a reality check to discourage unnecessary litigation. The award should also avoid inconsistency with comparable awards in other cases. To that end, I have considered the award of $10,000 for the action ordered by Sproat J. in Kay v. Credit Valley Hospital, supra. I have also considered costs ordered by Perell J. in Jaikaran v. Austin, supra, who awarded the sum of approximately $16,000 for a “standard” case involving the usual process of discovery production of documents, the generation of expert reports, and some motion activity, and to this extent, there are some parallels with the action against Dr. Penning which I have already indicated could not be construed as “trial ready.”

54Having regard to the particular circumstances of the action against Dr. Penning, and the relevant factors pertaining to the exercise of my discretion in awarding costs, I find a fair and reasonable award for this action would be the sum of $12,000 plus disbursements of $1,405.64 plus applicable taxes.

Conclusion

55In the result, the Plaintiff is awarded the sum of $54,000 for fees on the Summary Judgment motion plus disbursements of $1,145.97, plus applicable taxes which are payable forthwith.

56The Plaintiff, in turn, shall pay the Defendants Dr. Penning and Dr. Watters their costs of the motion fixed in the amount of $7,500 plus disbursements of $1,005.33 plus applicable taxes which may be offset against the amounts owed to the Plaintiff.

57Finally, the Plaintiff shall pay Dr. Penning his cost of this action fixed at $12,000 plus disbursements of $1,405.64 plus applicable taxes. This sum may also be offset against the amount owed by the Defendant Physicians to the Plaintiff in costs for the Summary Judgment motion.

Madam Justice Toscano Roccamo

Released: May 16, 2012

COURT FILE NO.: 05-CV-29868

DATE: 20120516

ONTARIO

SUPERIOR COURT OF JUSTICE