SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sherrie Graat, Plaintiff

AND:

Ali Adibfar, Defendant

BEFORE: D. M. Brown J.

COUNSEL:
A. Rachlin, for the Plaintiff

N. Bombier and J. Laxer, for the Defendant

HEARD: March 18, 19, 20, 21, 22 and 25, 2013; subsequent written cost submissions.

trial costs ruling

[1] Following a six day civil jury trial, the jury dismissed the plaintiff’s medical malpractice claim against the defendant. The parties have filed their cost submissions.

[2] The defendant, Dr. Adibfar, seeks an award of partial indemnity costs in the amount of $74,732.59. The plaintiff concedes that the defendant is entitled to some partial indemnity costs, but submits that a reasonable award would be $15,000.00, plus H.S.T.

[3] In fixing the costs of this action, I must take into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1). In addition, I must consider the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[4] Dr. Adibfar succeeded at trial. There is no reason to deny him an award of costs. He seeks costs on a partial indemnity scale. Such a request is reasonable in the circumstances of this case.

[5] As to the quantum of the costs, although Ms. Graat initially sought damages of $500,000 in her Statement of Claim, five days before the trial started the parties agreed to fix general damages at $20,000. During the trial the parties agreed on the amount of special damages – $9,617. The defendant submitted that in light of the quantum of damages ultimately sought by Ms. Graat, this claim should have proceeded under the Simplified Rules, and the costs associated with a “conventional” standard rules trial resulted from the plaintiff’s litigation choice. I accept the plaintiff’s submission that in light of the “she said/he said” nature of the key issue in dispute in this action – i.e. the instructions given by the patient to her doctor – it was reasonable in the circumstances for the plaintiff to have proceeded by way of a conventional trial. Selecting a mode of trial which saw a fulsome examination-in-chief of each party was a reasonable forensic choice in the circumstances. Also, section 108 of the Courts of Justice Act continues to permit the selection of a trial by jury even in cases which fall within the monetary limits of Rule 76. That said, although both counsel conducted the jury trial with admirable efficiency, by their nature civil jury trials take longer than civil trials before a judge alone. When a plaintiff serves a jury notice, as did Ms. Graat in this case, the plaintiff must reasonably expect that in the event she does not succeed at trial, her liability for costs may well be higher than had the trial proceeded before a judge alone.

[6] The issues obviously were of importance to both parties.

[7] The issues were of modest complexity – a straight-forward “she said/he said” credibility dispute was informed, in part, by expert testimony on the applicable standard of care on the issue of a physician receiving and understanding the instructions from his patient.

[8] The plaintiff conceded that the partial indemnity hourly rates sought for the defendant’s senior and junior counsel - $275/hour (1999 call) and $150/hour (2011 call) – were reasonable. I agree.

[9] That then leaves the reasonableness of the hours claimed in light of the complexity of the issues and the work reasonably related to those issues, as well as the use of a junior counsel. As I read the plaintiff’s submissions, she does not quarrel with the claimed costs for the pleadings stage ($1,127.50) or discovery stage ($4,207.50). I find the fees claimed for both tasks reasonable.

[10] The plaintiff does take issue with the 10.2 hours claimed by defendant’s senior counsel for the mediation because “counsel for the Defendant had advised in advance of the mediation that no settlement discussions would take place because the Defendant was not prepared to negotiate”. The defendant did not take issue with that factual assertion in his reply cost submissions. Accordingly, I accept the plaintiff’s submission. If a party takes the position going into a mediation that it is not prepared to engage in settlement discussions, then it should only expect to recover a modest amount for that step in the proceeding. I allow the defendant $500.

[11] Turning to the amounts claimed for trial preparation and the conduct of the trial, the plaintiff submits that the hours claimed by the defendant for junior counsel for trial preparation (38.7 hours vs. 36.1 hours for senior counsel) and the trial (86.1 hours vs. 82 hours for senior counsel) were excessive and that the plaintiff should not be required to pay an amount for a junior counsel (who did not conduct any examinations or make any submissions to the jury) when the work could have been performed by a law clerk.

[12] For costs purposes, counsel are obliged to delegate tasks down to a lower level of time-keeper where reasonable in the circumstances of the case. In the present case, although I think the defendant can reasonably recover some time for a second time-keeper assisting senior counsel, I am not prepared to award costs for the full amount of time claimed by junior counsel or at the rates claimed for junior counsel. In terms of trial preparation, the defendant did not file counsel’s time ledgers. Therefore, I cannot conduct a review of the work performed by junior counsel to assess its reasonableness. I have no doubt that some work was necessary, but I cannot assess its overall necessity for the trial. Consequently, I am reducing the trial preparation time claimed for junior counsel (38.7 hours) by half, and I will allow trial preparation of 19 hours by a second person on the defendant’s counsel team. In the absence of time dockets, I will only allow an hourly rate for a legal clerk, or $50/hour. That results in an allowance of trial preparation by a second person in the amount of $950.00.

[13] As to the fees claimed for junior counsel at trial, since junior counsel did not conduct any of the examinations or make any of the statements to the jury, I think fees should be allowed only at the rate of a legal clerk – i.e. $50/hour. I do not want to be misunderstood in this finding. I think it good mentoring for law firms to bring junior counsel to the counsel table at a trial; that is the only way junior lawyers can learn the craft of advocacy. But the costs of that training should not be borne by the opposing party. As to the hours claimed for trial work by the second person, I think using 10 hours per day over the course of the 6 day trial would be reasonable. That results in an allowance for trial work by a second person of $3,000.00 (6 days x 10 hours x $50/hour).

[14] I find that the hours and rates claimed by senior counsel for trial preparation and the conduct of the trial were reasonable in the circumstances.

[15] No objection was taken to the disbursements claimed. On my review, they appeared reasonable.

[16] In sum, I allow the defendant fees totaling $42,262.50, plus H.S.T. of $5,494.13, together with disbursements in the total amount of $7,681.21. I am satisfied that the overall cost award of $55,437.84 is fair and reasonable in the circumstances and one which the plaintiff reasonably could have expected to pay for a six-day jury trial. I order the plaintiff to pay the defendant that amount by way of costs.

D. M. Brown J.

Date: June 4, 2013