SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 06-CV-310993
DATE: 20120910

RE: ESTHER MARCOVITCH , Plaintiff/Respondent

AND:

Dr. peter john Kertes and THE SUNNYBROOK AND WOMEN'S COLLEGE HEALTH SCIENCES CENTRE, Defendants

AND:

THE SUNNYBROOK HOSPITAL UNIVERSITY OF TORONTO CLINIC, Non-Party/Appellant

BEFORE: Stinson J.

COUNSEL:
Jeffrey William Strype, for the Plaintiff/Respondent, Esther Marcovitch

Christopher Wirth , for the Appellant, The Sunnybrook Hospital University of Toronto Clinic

No one for the defendants Kertes and The Sunnybrook and Women's College Health Sciences Centre

HEARD: By written submissions

ENDORSEMENT AS TO COSTS

[ 1 ] On March 6, 2012, I released my decision allowing an appeal by The Sunnybrook Hospital University of Toronto Clinic from an order of Master Hawkins dated June 21, 2011. I have now received written submissions as to costs.

[ 2 ] Based on the parties' written submissions, they agreed as to the costs of the appeal at $5,000. I therefore award costs in favour of SHUTC in respect of the appeal before me fixed in the amount of $5,000.

[ 3 ] The parties have not reached agreement, however, in relation to the suitable disposition of the costs of the motion before the Master that gave rise to his order of June 21, 2011 that was the subject of the appeal.

[ 4 ] Counsel for Marcovitch concedes that the parties had agreed to costs for the appeal in the amount of $5,000 all inclusive. He disagrees, however, with the costs submissions of SHUTC regarding the motion before the Master. He argues that it is not appropriate that SHUTC be awarded costs of that motion, as costs submissions were made at that motion, following which the Master concluded there should be no order as to costs. He further argues that submissions as to the costs before the Master were not made at the hearing in front of me or discussed with plaintiff's counsel when the agreement on costs was reached. I will deal with each of these points in turn.

[ 5 ] It is correct that costs submissions were made before Master Hawkins in respect of the motion decided by him. At that time, however, the plaintiff was successful, a decision reversed by me. The Master declined to award the plaintiff costs on that occasion by reason of the history of her previous attempts to amend her claim to add SHUTC as a co-defendant. Based on that history, despite a favourable outcome before the Master, the plaintiff was denied costs.

[ 6 ] In light of the conclusion I have reached, the order of the Master has been set aside. This includes his order as to costs. Plainly, the rationale for his costs decision – denying costs to the successful party, the plaintiff – has no further application. Rather, I am called upon to decide what costs disposition would have been appropriate had SHUTC prevailed before the Master. I therefore do not accept this objection by plaintiff's counsel.

[ 7 ] I agree that no submissions were made at the appeal hearing before me in relation to the costs of the original motion before the Master. That is why I made the direction I did at the conclusion of my endorsement dated March 6, 2012: see paragraph 49 of that decision. Both sides have now had an opportunity to make submissions to the decision maker – me – in relation to the question of costs of the original motion before the Master.

[ 8 ] As to the final point raised by plaintiff's counsel – namely that there was no discussion about the costs of the motion before the Master when the agreement on costs of the appeal was reached – that is a matter of no moment. The only agreement made by the parties concerned the costs of the appeal, not the costs of the original motion before the Master. At the time that agreement was made, the parties did not know the potential outcome of the appeal. It thus would have been premature to reach an agreement that included a disposition of the costs of the motion before the Master, when the question whether that decision (including the costs disposition) would be upheld was unknown.

[ 9 ] For these reasons, I reject the submission by plaintiff's counsel that the $5,000 agreement included the costs of the original motion before the Master.

[ 10 ] Turning to quantification of costs, SHUTC does not seek substantial indemnity costs. I agree that partial indemnity costs only are appropriate. The costs outline submitted by SHUTC indicates total fees, disbursements and HST in the order of $8,111.30, calculated on a partial indemnity rate. Given the over-arching principle of reasonableness that governs costs determinations, SHUTC seeks costs fixed in the amount of $4,000 in respect of the motion before the Master.

[ 11 ] Counsel for the plaintiff made no submissions concerning quantum of the costs sought by SHUTC for the motion before the Master. Based on the costs outline, the work involved reviewing client documents and the moving parties' motion record; gathering facts; drafting an affidavit and assembling exhibits; researching and reviewing the law; drafting a factum; and preparing for and arguing the motion. The motion before the Master was of some significance for SHUTC, given that the outcome would dictate whether it would need to participate as a co-defendant in the litigation, an exercise that would have entailed considerable time and expense. I would assess the matter as of average complexity.

[ 12 ] Taking into account of the foregoing factors, as well as the reasonable expectation of the opposing party and the time spent, I would fix the costs payable by the plaintiff in respect of the motion before the Master at $3,000.

[ 13 ] In the result, I award SHUTC $5,000 in respect of the successful appeal and $3,000 in respect of the motion before the Master. The total sum of $8,000 shall be payable by the plaintiff to SHUTC within 30 days.

Stinson J.

Date: September 10, 2012