ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: J-06-23676
DATE: 2013-02-13
B E T W E E N:
LISA JENNINGS
Plaintiff
Lou Ferro, for the Plaintiff
- and -
DONALD LATENDRESSE
Defendant
Valerie A. Hoag, for the Defendant
HEARD: November 13, 14, 15, 16, 19, 20, 21, 22 and 23, 2012
RULING ON COSTS OF THE ACTION
CAVARZAN J.
[1] The trial of this civil action before a jury extended over a period of 9 days in November, 2012. On November 23, 2012 the jury rendered its verdict finding that the plaintiff had recovered from her injuries, was not entitled to non-pecuniary general damages nor any past income loss. She was awarded the sum of $58,000.00 for loss of competitive advantage and marketability.
[2] After the jury had retired to deliberate on its verdict, I heard submissions from counsel on the threshold issue, at the conclusion of which I reserved decision. In written reasons released on December 12, 2012, I granted the motion and dismissed the action.
[3] Counsel were invited to exchange brief written submissions on costs and send them to me within 30 days. I received written submissions on behalf of the defendant on January 10, 2013. To date, nothing has been received from plaintiff’s counsel.
[4] The defendant asks that the court exercise its discretion pursuant to s. 131 of the Courts of Justice Act and rule 57 of the Rules of Civil Procedure to award the defendant his costs of the action. At a minimum, the defendant seeks partial indemnity costs throughout. In the detailed written submissions, however, substantial indemnity costs throughout are claimed as an appropriate award in the circumstances.
[5] The claim for substantial indemnity costs is based, as I understand the submission, on two grounds. The first is that the defendant made an offer to settle on October 2, 2012 which was more favourable than the result achieved by the plaintiff in the jury award. While acknowledging, on the authority of Schwark Estate v. Cutting 2010 ONCA 299, [2010] O.J. No. 1728 (Ont. C.A.), that rule 49.10 has no application in cases where the plaintiff fails to recover judgment, the same case authority recognizes that there is a residual discretion in the court pursuant to rule 49.13, to take into account any offer to settle made in writing.
[6] The Court of Appeal in the Schwark case at paragraph 9 endorsed the proposition that: “Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made” It spoke of “egregious behavior deserving of sanction”.
[7] The second ground for claiming substantial indemnity costs throughout subsumes the first ground by alleging, in effect, egregious behavior on the part of the plaintiff (plaintiff’s counsel) in prosecuting the case, e.g.:
Given the extent of the Defendant’s success at trial, it is submitted that the action should not have proceed to trial.
The fact that the Defendant was successful at trial emphasizes that the matter should not have proceeded to trial.
[8] If this were a determinative consideration, there would be hardly a case in which the winning side would not be entitled to an enhanced costs award.
[9] Paragraph 16 of the defendant’s costs submission refers to the fact that several rulings on admissibility of evidence were required to beat back attempts by plaintiff’s counsel to introduce certain evidence. This is not an uncommon occurrence in civil litigation, did not consume and inordinate amount of trial time, and amounted to no more than an attempt by plaintiff’s counsel to represent his client effectively.
[10] Paragraph 20 alludes to “conduct of the Plaintiff that should be considered by [the Court] in exercising its discretion to award a higher scale of costs to the Defendant”, without specifying what that conduct is alleged to be.
[11] In summary, the court has three options in exercising its discretion in awarding costs in the circumstances.:
Partial Indemnity costs throughout;
Partial Indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter; or
Substantial Indemnity costs throughout.
[12] Options 2) and 3) require a clear finding of reprehensible conduct on the part of the party against whom the cost award is being made. In my view, the case for such a finding has not been made out.
[13] The amount claimed by the defendant for fees, disbursements and applicable taxes on a partial indemnity basis is $61,912.64. It is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered or handled by too many people of a paralegal nature in the office of the defendant’s lawyer. The time spent as reflected in the bill of costs was not manifestly unreasonable.
CONCLUSION
For the above reasons, I fix costs on a partial indemnity basis in the amount of $61,912.64 inclusive of fees, disbursements and applicable taxes, payable by the plaintiff to the defendant forthwith.
Date: February 13, 2013 ________________________ CAVARZAN, J.
COURT FILE NO.: J-06-23676
DATE: 2013-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LISA JENNINGS
- and –
DONALD LATENDRESSE
RULING ON THE COSTS OF THE ACTION
CAVARZAN, J.
Released: February13, 2013