COURT FILE AND PARTIES

COURT FILE NO.: CV-10-623
DATE: 20121121
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELIZABETH PATRICIA GEORGE, Plaintiff

AND:

LOUISE LANDLES, Defendant

BEFORE: The Honourable Mr. Justice C. Boswell

COUNSEL:
Scott Taylor for the Plaintiff
Marianne Motha for the Defendant

HEARD: October 26, 2012

Endorsement on costs

[ 1 ] On October 26, 2012 I released an endorsement in respect of a Defence motion to compel the Plaintiff to attend for two defence medical appointments: one with a vascular surgeon and the second with an ophthalmologist. In my endorsement, reported at 2012 ONSC 6105, I ordered that the Plaintiff attend an appointment with a vascular surgeon of the Defendant’s choosing, but I did not order her to attend for an appointment with an ophthalmologist.

[ 2 ] I invited the parties to make written submissions on costs. Having received and considered them, I make this further endorsement to address the matter of costs.

[ 3 ] The Defendant asserts that it was entirely successful on the motion and seeks costs of just under $13,000 for fees, disbursements and HST. The Plaintiff argues that the costs sought are excessive for several reasons: (1) the time spent by counsel was inordinate considering the issues involved; (2) success was divided; and (3) the amount billed by the Defendant’s counsel was disproportionately high relative to what was billed by the Plaintiff’s counsel.

[ 4 ] The award of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 provides for the general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs. In addition, the Court must always be mindful of the purposes that costs orders serve. As Perrell J. summarized in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), at para. 10 :

Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements (internal citations omitted).

[ 5 ] The general rule is that costs follow the event and will be awarded on a partial indemnity basis: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 17 O.R. (3d) 135 (C.A.). In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation: Standard Life Assurance Company v. Elliott (2007), 86 O.R. (3d) 221 (S.C.J.).

[ 6 ] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 246 D.L.R. (4 th ) 440 (C.A.). In assessing what is fair and reasonable in the circumstances, the Court is not to engage in a mechanical exercise, but rather must take a contextual approach, applying the principles and factors discussed above, to settle on a figure that is fair and reasonable in all the circumstances: Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), [2003] O.J. No. 1658, at para. 17.

[ 7 ] The Court is also guided by those factors set out in Rule 57.01(1) of the Rules of Civil Procedure. The Court may consider, amongst other enumerated matters, any of the following factors:

(i) the complexity of the proceeding;

(ii) the importance of the issues;

(iii) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(iv) any offers to settle;

(v) the principle of indemnity;

(vi) the concept of proportionality, which includes at least two factors:

(a) the amount claimed and the amount recovered in the proceeding; and,

(b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(vii) any other matter relevant to the question of costs.

[ 8 ] The Defendant was clearly successful on this motion. There is no reason to depart from the general rule that costs should follow the event and that they should be assessed on a partial indemnity basis.

[ 9 ] This was a one hour motion. The issues were not complex, though I appreciate that defence counsel had to go to some trouble to compile a record setting out, comprehensively, the history of medical assessments and evaluations, as well as prepare a factum.

[ 10 ] Success was somewhat divided. I did not compel the Plaintiff to attend an appointment with an ophthalmologist. Part of the reasoning for the decision, however, was the Plaintiff’s stated position on the motion that it was unclear at this stage whether damages would be pursued for an eye injury. Prior to that point, the Defendant was apparently under the impression that damages were being sought in relation to the eye.

[ 11 ] The real controlling factor in terms of the assessment of the costs of this motion is proportionality. In my view, a party in the Plaintiff’s shoes would not reasonably expect to face a cost award of $13,000 for this motion. At the same time, it is unreasonable for the Defendant to expect to be indemnified in that amount for a motion of this nature.

[ 12 ] In my view, a fair and reasonable costs award for this motion is $4,000 and I fix costs in that amount, all inclusive, payable by the Plaintiff to the Defendant within 30 days.

Boswell J.

Date: November 21, 2012