SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-434382
DATE: 20130107

RE: TIFFANY MONTGOMERY

Plaintiff

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HOWARD SHELLY SEIDEN, M.D., SEIDEN HEALTHMANAGEMENT INC., MOIRA COSTELLO, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. JEAN A. SAINT-CYR

Defendants

BEFORE: Justice S. M. Stevenson

COUNSEL:
Tiffany Montgomery, Appearing in Person

Jaan E. Lilles and Jonathan Laxer, for the Defendants
Howard Shelly Seiden, M.D. and Seiden Health Management Inc.

Michelle S. Gibbs for the Defendants Moira Costello and the
College of Physicians and Surgeons of Ontario

Steven G. Bosnick for the Defendant Health Professions Appeal and Review Board

Michael Hochberg for the Defendant Dr. Jean A. Saint-Cyr

DATE HEARD: October 11, 2012

ENDORSEMENT AS TO COSTS

[1] In my reasons for decision dated November 2, 2012, I requested that the parties provide written submissions on costs. I received costs submissions from Dr. Seiden and Seiden Health Management Inc.; Moira Costello and the College of Physicians and Surgeons of Ontario; and Dr. Jean A. Saint-Cyr. Counsel for Health Professions Appeal and Review Board indicated that the Board was not seeking costs. I did not receive any costs submissions from the plaintiff, Tiffany Montgomery.

[2] The defendants were each successful on their respective motions as the plaintiff's Statement of Claim was struck in its entirety without leave to amend.

[3] Dr. Seiden and Seiden Health Management Inc., are seeking costs in the amount of $7,500.00 on a partial indemnity basis, inclusive of HST and disbursements. Counsel submits that the allegations made against Dr. Seiden were very serious in nature as allegations of fraud were made and normally this would entitle Dr. Seiden to costs on a substantial indemnity basis. Counsel submits that the costs are reasonable as this is a reduction from the partial indemnity costs set out in the costs outline which are $9,680.62.

[4] Moira Costello and the College of Physicians and Surgeons of Ontario, seek costs in the amount of $13,539.27, inclusive of HST and disbursements. Counsel also submits that the allegations made were very serious in nature and were bald, unsupported allegations. Counsel further asserts that the claims made against Moira Costello personally, who was the investigator of Ms. Montgomery's complaints, were of great personal significance to Ms. Costello.

[5] Dr. Saint-Cyr seeks costs in the amount of $1,655.26, inclusive of HST and disbursements. Counsel contends that given the success of Dr. Saint-Cyr, the costs are very reasonable. Counsel also submits that Dr. Saint-Cyr has acted reasonably throughout the litigation and has been co-operative, concluding the matter in the most efficient manner possible.

[6] As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26, with respect to costs: "… The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in that particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant."

[7] In assessing costs, I must also consider what Ms. Montgomery would reasonably expect to pay if she was unsuccessful on this motion. As also stated in Boucher, the fixing of costs is not a mechanical exercise and does not begin and end with the calculation of hours times rates.

[8] I have also taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure that the court may consider when exercising its discretion in awarding costs and the costs submissions of the parties. I also acknowledge that Dr. Seiden, Moira Costello and the College of Physicians and Surgeons of Ontario were required to respond to the majority of the allegations made in the Statement of Claim.

[9] Taking all of this into consideration, I order that the plaintiff, Ms. Montgomery, pay costs to Dr. Seiden, and Seiden Health Management Inc. in the total amount of $5,000, inclusive of HST and disbursements, that Ms. Montgomery pay costs to Moira Costello and the College of Physicians and Surgeons of Ontario, in the total amount of $5,000, inclusive of HST and disbursements and that Ms. Montgomery pay costs to Dr. Saint-Cyr in the amount of $1,200.00, inclusive of HST and disbursements.

[10] I find that these amounts are fair and reasonable for Ms. Montgomery to pay and amounts that she could have reasonably expected to pay if unsuccessful against these multiple defendants. Ms. Montgomery was well aware that these were very serious allegations made by her against these parties and that many allegations had been made and previously dealt with in other proceedings outside of the court process.

Order

[11] I order the following:

(i) The plaintiff, Ms. Tiffany Montgomery, shall pay costs to Dr. Howard Shelly Seiden, and Seiden Health Management Inc. in the total amount of $5,000, inclusive of HST and disbursements within 60 days;

(ii) The plaintiff, Ms. Tiffany Montgomery, shall pay costs to Moira Costello and the College of Physicians and Surgeons of Ontario, in the total amount of $5,000, inclusive of HST and disbursements within 60 days; and

(iii) The plaintiff, Ms. Tiffany Montgomery, shall pay costs to Dr. Saint-Cyr in the amount of $1,200.00, inclusive of HST and disbursements within 60 days.

Stevenson J.

DATE: January 7, 2013