ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 50824/06 (LONDON)
DATE: 2013-06-28
BETWEEN:
KERRY ERLE, carrying on business as London Speech and Language Centre
Plaintiff
– and –
TODD URQUHART, DAVID WILLIAMS, and HARRISON PENSA LLP
Defendants
Kerry Erle, Self-Represented
A. Webster and M. Khami, Counsel for the Defendants
HEARD: Written Submissions
A. Quantum of Judgment and Costs
[1] I have requested that the parties provide me with written submissions with respect to their position on the exact amount of the damages and on the issue of costs. There is still some difference between the parties as to the amount of these damages and decided difference on the issue of costs.
[2] The defendants, in accordance with my decision, determined that the amount of the damages would be the amount of the treatment and assessment invoices up to and including June 4th,1999in the amount of $16,249.75. Interest on this amount until April 29th, 2013 at 5% (5,202 days) would equal a total amount of interest on this assessment report of $429.34.
[3] Thus defendant indicate that the judgment should be the damages of $16,249.75 (no interest on this sum) less the amount paid of $2,630.50 plus the interest of 5% on the Assessment Account would equal $14,048.59 inclusive of damages and interest($16,249.75 - $2,630.50 + $429.34 = $14,048.59).
[4] The plaintiff, on the other hand submits that her total account for services rendered back in 1999 totalled $32,679.32. Both parties virtually agree on the treatment and assessment expense of $16,249.75 occasioned by the plaintiff until the meeting in June of 1999. The plaintiff concludes that she is owed, based on my reasons the sum of $18,113.07 or alternatively the sum of $16,657.64. These amounts presumably include a 5% interest component on the outstanding assessment account.
[5] Neither party is significantly different in their assessment of what the damages should be based on my decision. I should add that the defendants have as well alternatively questioned whether the travel and gas expenses are included in my decision. I should indicate that I did not deduct any of those travel or gas expenses from my determination in my decision even though they did appear to be excessive.
[6] Nevertheless, I prefer, on a balance of probability, the damage amount as reflected in the defendants’ calculations, which I fix at $14,048.59.
[7] Before I begin my analysis, there are four other matters that bear on the question of costs. These were the four rulings made by this court with respect to various motions brought by the parties. The first ruling by Justice Ducharme specifically did not conclude that costs were warranted. However, leave to appeal his ruling was sought with leave denied by Justice Morissette.
[8] Justice Morissette then determined that costs fixed at $3,000.00 plus H.S.T. would be payable in the cause, but only after the trial judge determined whether those documents would be admissible. A further motion was brought before Justice Tausendfreud as there was a disagreement with respect to certain productions. In that decision, the defendants were in fact ordered to pay costs fixed at $3,500.00. These costs were in fact paid by the defendants.
[9] Finally, as a result of a request for an adjournment by the plaintiff, Justice Templeton ordered that the plaintiffs would pay the sum of $5,000.00 to the defendants but that this payment would be payable in the cause. Obviously, the defendants indicate that based on their offers they were successful and thus the cause was lost by the plaintiff. In this regard, they indicate that they should be thus entitled to this specific cost sanction for this non-success by the plaintiff as well as the cost award of $3,000.00 by Justice Morissette.
B. Analysis
[10] The defendants, I conclude, were significantly successful in minimizing the amount of damages claimed by the plaintiff. I am satisfied that on a balance of probabilities that these damages, inclusive of interest, totals the sum of $14,048.59.
[11] On the issue of costs, there were offers of settlement on both sides. The plaintiff offered to settle this case on April 15th, 2010 for $150,000.00 plus interest on the sum of $32,679.32 from December 1st, 1999 to the commencement of the trial pursuant to the Courts of Justice Act. Subsequent to this offer, a second offer was made on the 29th of September 2011, wherein the plaintiffs offered to settle the case for the sum of $30,000.00 plus interest at the rate of 1% per month compounded monthly 60 days from the date of each invoice.
[12] On this latter offer, although the defendants did not complete the analysis, they determined that this offer would come in well over $100,000.00. My own cursory review of these accounts would result in a similar conclusion.
[13] The defendants made two offers to settle the case. Both offers were made pursuant to Rule 49. In the September 23rd, 2009 offer, the plaintiff would receive the sum of $22,000.00 inclusive of interest plus $2,000.00 in costs. On May 4th, 2012, the defendants offered to settle the proceedings for the sum of $30,000.00 including interest plus the sum of $5,000.00 in costs that would include G.S.T. and H.S.T.
[14] I will not deal with the issue of whether this matter should or could have been brought under the jurisdiction of the Small Claims Court. Obviously, if it had been, either one of the defendants’ two offers to settle the case would have been accepted or no trial would have taken place.
[15] What is significant is that at no time did the plaintiff believe that her claim was without merit or that it did not reflect the monetary jurisdiction of a Superior Court. This dogged, determined and dedicated pursuit of justice against the named defendants in this law suit consumed five of her counsel and five days of trial.
[16] On the issue of whether the defendants offers were better than what the plaintiff received after trial, there is no question that they were better and bested the ultimate result that I determined was owed to the plaintiff. Again, the very real risk in this case for the plaintiff, in the end result, was not that she was going to succeed but whether she was going to receive any monies for her extensive treatment of Mr. Urquhart. My findings of fact with respect to the narrow parameters to her employment with the defendants was clear and unequivocal. There was unchallenged evidence that indicated that there was no monies to pursue anything beyond this narrow focus, that is, the assessment report.
[17] As I stated in my decision, had the first case manager not become ill or if there had been a more definitive self-serving letter from the defendants concerning her non-authorized treatment of Mr. Urquhart, even those treatment invoices that I did accept may have been disallowed.
[18] While the two remaining orders for costs in the amount of $3,000.00 by Justice Morissette and $5,000.00 by Justice Templeton do have certain qualifiers, the first order really arises as a result of the defendants failed leave to appeal application while the second order arises because of the request of the plaintiff that she was not ready to proceed.
[19] Justice Morissette indicated “the plaintiff is entitled to her costs, given she retained counsel …Given that the issue of production remains contingent upon a finding by the trial judge that the documents are in fact admissible at trial, I order costs payable in the cause.” Justice Templeton indicated that the “costs of today’s adjournment are payable in the cause. The defendants’ costs are fixed at $5,000.00. So what will happen is if you are unsuccessful at trial, in addition to the costs that may – are otherwise payable, costs – the defendants’ costs are fixed at $5,000.00 with respect to this motion.”
[20] Naturally, each party has represented success at trial. I do acknowledge that some of the documents that were produced were not found to be admissible at trial. Nevertheless, these documents may have had some other significance to the plaintiff in her preparation for trial and thus I am awarding her those costs of $3,000.00.
[21] On the other hand, the defendants were decidedly successful at trial and spent a large amount of trial time pointing out that the plaintiff was never authorized to provide the type of extensive treatment that was reflected in her invoices. In my view, the $5,000.00 cost award to the defendants for the plaintiff’s requested adjournment is more than indicative of the ultimate determination by the court.
[22] These two cost awards are thus set off with the balance of $2,000.00 set off against the damage award of $14,048.59 in favour of the plaintiff, leaving a net damage amount of $12,048.59.
[23] I am awarding the plaintiff her costs of this law suit on a partial indemnity basis prior to the defendants September 23rd, 2009 Offer to Settle but at a reduced amount in light of the ultimate reality that the award of damages falls within the jurisdiction of Small Claims Court. I do not conclude the plaintiff is only entitled to costs at the Small Claims Court scale but would fix those costs in total at a reduced rate of $18,000.00.
[24] On the other hand, the defendants are entitled to recover, on a substantial indemnity basis, their costs from their September 23rd, 2009 original Offer to Settle to and through the five days of trial. I would fix those costs at $30,000.00 based on the costs principles as found in 57.01 of the Rules of Civil Procedure. This is less than 1/2 their actual Bill of Costs as attached to their submissions on costs. Nevertheless, given the simplicity of the issues and my determination of damages, I feel that this fairly reflects an appropriate level of costs.
[25] These costs will thus be set-off against the damages . The amount of $12,048.59 plus $18,000.00 would equal a total judgment of $30,048.59. From this sum I would deduct the $30,000.00 cost award in favour of the defendants. The defendants’ net payment to the plaintiff is thus fixed at $48.59.
[26] Judgment will issue in that amount and is payable to the plaintiff within 7 days.
“Justice J.A. Desotti”
** ____________________________________**
The Honourable Mr. Justice John A. Desotti
Released: June 28, 2013
COURT FILE NO.: 50824/06 (LONDON)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KERRY ERLE, carrying on business as London Speech and Language Centre
Plaintiff
– and –
TODD URQUHART, DAVID WILLIAMS, and HARRISON PENSA LLP
Defendants
REASONS
DESOTTI, J.
Released: June 28, 2013