Court File and Parties

COURT FILE NO.: 07-CV-327916PD1

DATE: 20130703

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Luigi Di Tacchio, Leonarda Rojas, Lucy Valavanis, Maria Di Tacchio and Vito Di Tacchio, Plaintiffs

AND:

London Health Sciences Centre, Markham Stouffville Hospital, Dr. David Diosy, Dr. David Steven, Dr. Andrew Arcand, Dr. Doe #1, Dr. Doe #2, Nurse Doe #1, Nurse Doe #2, Nurse Doe #3 and Nurse Doe #4, Defendants

BEFORE: Lederman, J.

COUNSEL:
Jacinthe Boudreau, for the Defendant, London Health Sciences Centre, moving party

Lawrence G. Theall and Andrea Gorys, for the plaintiffs, respondents

John A. Nicholson, for the defendants, Dr. David Doisy and Dr. Andrew Arcand, respondents

HEARD: June 13, 2013

costs ENDORSEMENT

[1] The defendant, London Health Sciences Centre (the “Hospital”) was successful on the summary judgment motion and in having the action as against it dismissed. It seeks its costs for the motion for summary judgment and the action. On a partial indemnity basis, it seeks a total of $43,646.70 for the summary judgment motion and a total of $180,114.95 for the remainder of the action.

[2] The plaintiffs submit that although the court can fix the Hospital’s costs of the motion, it should refer the costs of the action for assessment and that, in any event, the court should grant a Bullock or Sanderson Order that all of the Hospital’s costs be paid by the defendant, Dr. Diosy.

[3] Dr. Diosy submits that the plaintiffs’ total fees and disbursements for the motion should be fixed at no more than $30,000.00 with Dr. Diosy responsible for 40-45% of those costs which is $12,000.00-$13,500.00. He submits that the plaintiffs should be solely responsible for the Hospital’s costs of the remainder of the action.

Responsibility for the Hospital’s Costs

a) Position of the Plaintiffs

[4] When the Hospital offered to get out of the action without costs, the plaintiffs were prepared to accept it provided that the defendant doctors admitted that Nurse Kettlewell advised Dr. Diosy that she had observed purulent discharge at the site of the incision prior to the patient leaving the hospital. This was based on expert opinion that the nurse would have met the standard of care expected of her provided she had told the treating physician what she had observed. When Dr. Diosy refused to make the admission, the plaintiffs stated that they would rely on the doctor’s refusal in speaking to costs in the event that the Hospital succeeded on the motion for summary judgment. They submit, therefore, that Dr. Diosy should be required to pay all costs of the Hospital.

b) Position of the Defendant Dr. Diosy

[5] Dr. Diosy submits that even though the plaintiffs served a request to admit that Nurse Kettlewell advised him of her observation of purulent discharge, the plaintiffs themselves did not admit this fact at the motion. In fact, they contested the finding of fact that Nurse Kettlewell had so advised Dr. Diosy.

[6] Since they both contested the motion, he submits that the appropriate order is that costs of the motion be borne by both the plaintiffs and Dr. Diosy. Further, as the plaintiffs created more costs on this motion because it was they (and not Dr. Diosy) who insisted on cross-examinations of the Hospital’s affiants, they ought to bear a greater proportion of the motion costs than Dr. Diosy.

[7] Dr. Diosy submits that as there has yet to be any finding of liability against him, a Bullock or Sanderson Order should not be made. He submits that all of the authorities have considered the possibility of a Bullock or Sanderson Order only where the action has proceeded to trial and one of the defendants was found to be liable to the plaintiff.

c) Analysis

[8] The two part test for determining whether a Bullock or Sanderson Order is appropriate, is:

i) Whether it was reasonable to join the several defendants together in one action;

ii) If so, whether a court should exercise its discretion to award such an Order, i.e. would it be just and fair in the circumstances.

[9] In the present case, the parties agree that it was reasonable for the plaintiffs to have joined the Hospital in the action.

[10] As to the second consideration, the foremost factor to be considered is whether the unsuccessful defendant tried to shift responsibility onto the successful defendant. In this case, the plaintiffs submit that although Dr. Doisy has yet to be found liable, there is no question that he shifted responsibility onto Nurse Kettlewell.

[11] For his part, Dr. Diosy submits that although he initiated a cross-claim, it was passive in nature. He did not contest the cross-claim against the Hospital and did not seek to shift responsibility to the Hospital. He submits that he only contested a single finding of fact sought by the Hospital at the summary judgment motion. The cross-claim did not make any factual allegations against the Hospital; did not adopt any factual allegations made against the Hospital by the plaintiffs; nor did it make any allegations of negligence against the Hospital. It simply pleaded for contribution and indemnity in accordance with the provisions of the Negligence Act in the event that there was apportionment of liability as between the defendants at trial. Dr. Diosy did not retain any experts concerning the standard of care of the Hospital or its employees.

[12] By its very nature, a cross-claim intends to shift responsibility to the other party. It is predicated on the basis that Nurse Kettlewell could be at fault and that there will be an apportionment of liability. Accordingly, the principle underlying a Bullock or Sanderson Order has been met.

[13] It is true that Dr. Diosy has yet to be found liable at a trial and normally a Bullock or Sanderson Order visits the costs of a successful defendant on an unsuccessful defendant.

[14] However, even if that would preclude, in a technical way, the implementation of a Bullock or Sanderson Order, Rule 57.01(1)(g) allows a court in exercising its discretion under s.131 of the Courts of Justice Act to award costs to consider “a party’s denial of or refusal to admit anything that should have been admitted”. In this case, Dr. Diosy refused to admit the fact that Nurse Kettlewell had advised him of the purulent discharge. It was Dr. Diosy who therefore insisted on contesting the summary judgment motion. In the exercise of my discretion in awarding costs, I find this factor to be the most significant and serves as a basis for making an order that Dr. Diosy pay all the Hospital’s costs of the motion.

[15] As for the action, the amended Statement of Claim did assert that the nurse’s negligence took place over a period of 17 days rather than just on March 1, 2005. As a result, it was appropriate for the Hospital to be concerned that the plaintiffs would be pursuing the allegations of negligence regarding the care prior to March 1, 2005 in addition to challenging the adequacy of care provided on March 1, 2005. Accordingly, the Hospital was justified in incurring reasonable costs in defending on all these issues.

[16] When the summary judgment motion was argued, the issue was narrowed to only the events on March 1, 2005. Because the Hospital incurred the additional costs of defending on all issues and given the fact that the Statement of Claim was amended to increase the damages from $2,000,000.00 to $15,000,000.00, the Hospital is entitled to these costs of the action.

[17] Upon a summary dismissal of the action, it is customary for the costs of both the summary judgment motion and action to be dealt with at the same time. As it turns out, the trial will now deal only with the events of March 1, 2005 and the trial judge is in no better position to consider the extent of the costs incurred by the Hospital in defending the action.

[18] As the Hospital was prepared to get out of the action on a without costs basis, which would have been the result but for Dr. Diosy’s refusal to admit the singular fact, he should bear responsibility for the Hospital’s costs of the action as well as the summary judgment motion.

Quantum of Costs of the Summary Judgment Motion

[19] Counsel agree that having regard to the principle of proportionality and what an unsuccessful party would reasonably expect to pay, the appropriate range of costs for the motion is $30,000.00 to $43,000.00 all inclusive.

[20] Having regard to the award of costs made on similar summary judgment motions in medical malpractice cases, I believe $40,000.00 all inclusive is an appropriate amount to be fixed for this motion.

Quantum of Costs for the Remainder of the Action

[21] It is only in extraordinary or unusual cases that a Court will deviate from the presumption that costs are to be fixed. There is no point in leaving the fixing of costs to the trial judge as he or she would be in no better position to determine the amount. Nor are there any unusual circumstances which justify the costs of the action to be referred to an assessment.

[22] The Hospital’s counsel has provided dockets and other evidence with respect to their work on the file.

[23] Apart from complaining about the format in which this has been received, there has been no responsive evidence from Dr. Diosy or the plaintiffs as to what the reasonable expectation of the parties as to the amount of costs would be. They have not provided their own dockets or costs and, thus, there is no evidence of their expectations.

[24] Having regard to the factors in Rule 57.01(1), I fix the Hospital’s costs at $120,000.00 for fees for the remainder of the action. In addition, it is entitled to its disbursements of $58,830.95. The bulk of the disbursements is made up of expert’s costs, some of which were jointly covered by Dr. Diosy in defending the action. These expert fees were reasonable and no meaningful issue was taken with them.

Costs of the Costs Submissions/Hearing

[25] As the Hospital has been successful on this costs motion, it is ordered that Dr. Diosy pay the Hospital’s costs of $5,000, an amount agreed upon by counsel.

Conclusion

[26] In summary, the Hospital’s costs payable by Dr. Diosy are fixed as follows:

a) $40,000.00 all inclusive for the summary judgment motion;

b) $178,830.95 (i.e. $120,000.00 for fees and $58,830.95 for disbursements) for the remainder of the action;

c) $5,000.00 for the costs submissions/hearing.

Lederman J.

Date: July 3, 2013