ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 05-CV-282201PD2
DATE: 20130110
BETWEEN:
Sayada Mohsina and Muhammad Amin
Plaintiffs
– and –
Dr. Melanie Ornstein, Dr. Robert Mackenzie, Dr. Rekha Pramod and Toronto East General Hospital
Defendants
Lori Stoltz and Robert Plate, for the Plaintiffs
Sarit E. Batner and Lisa M. Filgiano, for the Defendant, Dr. Melanie Ornstein
Claims against other Defendants were dismissed on consent.
HEARD: by written submissions
ALLEN J.
SUPPLEMENTARY REASONS FOR JUDGMENT ON COSTS
[1] Subsequent to the release of my Reasons for Judgment Citation: Mohsina v. Ornstein, 2012 ONSC 6678, dated November 26, 2012, I received a further bill of costs from the plaintiffs’ counsel and written submissions from both counsel.
[2] Subsequent to the delivery of the parties’ initial costs submissions on November 12, on November 16, counsel for the plaintiffs received two further invoices, one for $21,436.10 from the plaintiffs’ expert Dr. Arnold for his supplementary expert report dated October 24, 2012, and the other for $861.00 from the court reporter for transcripts the plaintiffs’ counsel ordered for closing argument.
[3] I accept the plaintiffs’ counsel’s submission that the cost of the supplementary expert report, though dear, is a reasonable cost in the context of medical malpractice litigation. The plaintiffs’ counsel called one expert witness and I note that the defendant’s counsel called two and sought in her bill of costs to recover for the costs of both reports.
[4] I considered the defendant’s counsel’s argument that due to the plaintiffs’ counsel’s change in trial strategy Dr. Arnold’s medical evidence was not germane to the disposition of the litigation. However, I think litigants are entitled to change trial strategy to one they hope is likely to result in success and if done so in a reasonable and fair manner, they should not be penalized in costs for services they could not have reasonably foreseen would not be needed. I accept the plaintiffs’ counsel’s argument that it is not appropriate to engage hindsight to assess whether a service obtained was reasonably necessary for the plaintiff to succeed. It cannot be expected that the plaintiffs could have anticipated in advance that Dr. Arnold’s evidence would not be necessary for their success [Marcoccia (Litigation Guardian of) v. Ford Credit Canada Ltd., [2007] O.J. No. 4656, at para. 48, (Ont. S.C.J.)].
[5] The transcripts ordered to assist with the preparation of closing arguments were helpful to counsel and the court and as such the expense incurred is reasonable.
[6] The plaintiffs are entitled to costs for the total additional expense in the amount of $22,297.10 inclusive of HST and payable within 30 days of this Order.
Order
[7] Order accordingly.
ALLEN J.
Released: January 10, 2013
COURT FILE NO.: 05-CV-282201PD2
DATE: 20130110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sayada Mohsina and Muhammad Amin
Plaintiffs
– and –
Dr. Melanie Ornstein, Dr. Robert Mackenzie, Dr. Rekha Pramod and Toronto East General Hospital
Defendants
SUPPLEMENTARY
REASONS FOR JUDGMENT
ON COSTS
Allen J.
Released: January 10, 2013