ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-01-0474
DATE: 2013-07-03
B E T W E E N:
PAM MEADY, EVELYN SHEPHERD, CARRIE ANN TAPAK, DENNIS CROMARTY, THAYNE GILLIAT, FAYE EVANS, SHELDON CHRISTENSEN, a Minor by his Litigation Guardian, CATHY DUCHARME, ANTHONY CLOWES, TANYA CLOWES and BRIAN ELIZABETH CLOWES and SHAUNA PAULINE CLOWES, minors by their Litigation Guardian, TANYA CLOWES, BRIAN GORDON ADAMS, MICHAEL DAVID FINN, JENNIFER ESTERREICHER, JOHNATHAN THERIAULT, an infant under the age of eighteen years by his Litigation Guardian LYNE THERIAULT and LYNE THERIAULT,
Christopher D.J. Hacio¸ Nicole Crowe and Karen Drake, for the Plaintiffs
Plaintiffs
- and -
GREYHOUND CANADA TRANSPORTATION CORP., CONSTABLE COREY PARRISH, CONSTABLE MARTIN SINGLETON, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALBERT ARNOLD DOLPH and SHAUN DAVIS,
Owen Smith, Amanda McBride and David Contant for the Defendants Greyhound Canada Transportation Corp. & Albert Arnold Dolph;
Stephen Moore, Teri D. MacDonald, Danielle D. Stone, Bianca Matrundola and Rafal Szymanski for the Defendants Constables Parrish & Singleton and Her Majesty The Queen in Right of Ontario
Defendants
HEARD: by written submissions, and oral submissions on June 18, 2013, at Thunder Bay, Ontario
Mr. Justice T.A. Platana
Decision On Costs re: Sheldon Christensen
[1] The Plaintiff Sheldon Christensen was one of 15 Plaintiffs injured in a bus accident. The Plaintiffs brought an action against the owner Greyhound, the driver, and the Ontario Provincial Police, and two named Constables. They also named Shaun Davis, who did not appear at trial and against whom a default judgment was granted.
[2] On July 15, 2010, Mr. Christensen, settled his claim and judgment was granted, on consent, in the amount of $30,000.00 for general damages and pre-judgment interest of $13,920.00. Costs were awarded to be assessed on a partial indemnity basis.
[3] A number of the other Plaintiffs proceeded to trial and their claims were dismissed. That has relevance in this cost issue only insofar as the Plaintiffs’ calculation of costs is based on a formula established in the settlement of two other infant claims.
[4] The determination of costs in this matter, although separate and distinct from overall costs in the action which proceeded, is linked in some aspect to the costs involving the other Plaintiffs and the Defendants. Findings which I may make on some items included as fees or disbursements in the general liability part of this account, should apply to findings in the costs requested in the other aspects of this file.
[5] The same counsel acted for all 15 Plaintiffs, and in order to keep track of each client’s fees and disbursements counsel established two types of accounts, one described as the “liability account” which was used to cover fees and disbursements dealing with the liability portion of this action on behalf of all 15 Plaintiffs, and a second account, a “damages account”, was used to record costs and disbursements for the personal portion of each Plaintiff’s file.
[6] In order to put any costs award into context I initially state that I have found that the determination of costs in this entire action to be particularly difficult and confusing. There is a cost award to be made in this file for the Plaintiff who settled; there is the issue of costs in the part of the action dealing with a Third Party; there is a cost issue with respect to the Defendant Davis against whom default judgment was granted; there is the issue of costs as between the remaining Plaintiffs and the Defendants Greyhound and the OPP where the Plaintiffs’ action was dismissed against those Defendants.
[7] The Bill of Costs submitted in the general litigation file, as of May 21, 2009, on Mr. Hacio’s calculation is $327,630.87 for fees inclusive of GST in the amount of $15,601.47. Non-taxable disbursements are claimed as $19,481.49. Taxable disbursements are noted at $30,863.69 plus GST of $1,543.19 for total fees, disbursements and GST/HST of $379,519.24.
[8] When the two infant claims referred to above were settled, costs of these claims were argued before Smith J. He accepted the submissions of counsel that costs should be assessed and quantified based on 1/15 of the fees and disbursements relating to the liability account for each Plaintiff, and the amount of costs incurred on their damages files. In this case, all counsel agree that the same formula should be applied.
[9] In the damages portion of the file for Mr. Christensen, Mr. Hacio claims fees of $11,021.00 plus GST of $649.43; non-taxable disbursements of $369.00; taxable disbursements of $3,836.71 plus GST of $192.28. The above total of fees and disbursements on the personal part of the file is $16,068.22.
[10] Dealing with the liability parts of the file, Mr. Hacio notes that numerous liability experts were retained. A medical expert was retained to assess Mr. Christensen’s injuries, however, this claim settled prior to trial. In dealing with liability for general file preparation, Mr. Hacio has included costs for time spent in interviewing witnesses, preparation of document books, case books, and general trial preparation. He acknowledges that much of what he has included was for work done before the Defendant’s offer to settle dated May 21, 2009.
[11] The trial commenced in April 2010.
[12] Mr. Hacio submits that Mr. Christensen’s case was more complicated and time consuming than those dealing with the claims of the two infants. In those two claims, Justice Smith fixed costs of $32,000.00 for fees and $11,542.00 for disbursements for the liability issue.
[13] Mr. Hacio submits that Mr. Christensen should be entitled to more costs than those awarded to the infant Plaintiffs. He seeks fees based on a 1/15 share of the general liability and the personal damages portion of the account in the total amount of $29,478.19, and $7,937.55 for disbursements for a total of $37,415.73, on a partial indemnity basis.
[14] In his costs submissions Mr. Hacio acknowledged that because of the difficulty in accurately recording all entries as they relate to each of the individual Plaintiff and the general liability file, there may be some overlapping.
[15] Mr. Moore made the submissions on costs, on behalf of the O.P.P. and the named officers, which were adopted by Ms. McBride on behalf of Greyhound. As the costs aspect of this action involves several individual Plaintiffs, in addressing costs for this Plaintiff, Mr. Moore notes specifically three main areas of disagreement in the calculation of fees, and he disputes certain parts of the docketed entries submitted. Firstly, he notes that in the time spent in the general litigation file Mr. Hacio has included attendance at the inquest of a passenger who died as a result of the bus crash. He has also included an amount for fees for attendance at the criminal trial of Mr. Davis, the Defendant who did not appear in this action. Mr. Moore submits that the total of these two attendances, $27,871.50, should be deducted from Mr. Hacio’s docketed time of $312,029.40 on the liability account.
[16] He then highlighted several of the docketed entries which relate to issues involving other Plaintiffs which total $20,542.45. He further points out that the Plaintiff seeks to include costs of both a motion to add Dr. James as a third party, and the costs of the appeal of that motion both of which were unsuccessful. Mr. Moore submits that the $26,848.50 claimed for that should be deducted.
[17] In sum, he argues that the total fees claimed for liability should be reduced from $312,029.40 to $236,766.95 and that 1/15 of that amount is $15,784.46. He submits, after taking into account his above comments, that fees recoverable for the general liability aspect of the claim should be $10,523.00 plus tax for a total of $11,049.15.
[18] Mr. Moore also disputes several of the charges which have been included as disbursements in the liability portion of the account. Specifically he points out that charges for car rental, limousine rental, accommodation costs, delivery charges, postage, office expenses, long distance and other telephone charges are not assessable as disbursements provided for in the tariff. He further seeks a reduction in photocopying charges of $7,183.35, which he submits should be reduced to $5,549.35.
[19] Thirdly Mr. Moore notes that there are items in the non-taxable disbursements that are improperly claimed. Specifically, he points to the fact that the Plaintiffs have included as disbursements, two orders of costs which they were required to pay on the motion and the appeal to add Dr. James as a Defendant. In addition, Mr. Hacio seeks as disbursements costs that were awarded by Justice Smith against the Plaintiffs in favour of the Defendant Greyhound on the October 30, 2008 motion. They further claim as a disbursements costs that the plaintiffs were ordered to pay the defendants in the appeal of Justice Smith’s decision. These disbursements total $19,481.49.
[20] If the Defendant’s submissions on the above are accepted, the disbursements would fall from $51,888.37 to $20,340.94 plus GST for a total of $21,764.81. One-fifteenth of that amount is $1,450.99.
[21] Mr. Moore indicates that he has no dispute with respect to the actual entries for the damages part of the claim, however, he argues that costs must be proportional to the value of the claim. In this matter he references that the matter was settled a year before trial; no medical reports were provided; there was no medical legal examination; and examinations for discovery were one day. With respect to the claim for the fees for Mr. Christensen in the “damages” category, Mr. Moore argues that although the claim for that portion is just over $11,000.00 he submits an appropriate amount would be $6,500.00.
[22] In specific terms Mr. Moore argues that in the overall consideration of costs in this matter for the fees on the liability aspect on a partial indemnity basis Mr. Christensen should be entitled to fees of $11,049.15 and disbursements of $1,450.99. With respect to the damages part of the account relating to Mr. Christensen, Mr. Moore suggests fees of $6,500.00 and disbursements of $2,429.08, for a total of $21,429.22. He submits that an appropriate amount for costs overall in this case would be $20,000.00.
[23] The authority of a court to award costs is found in s. 131(1) of the Courts of Justice Act. That section clearly indicates that costs are in the discretion of the court. The assessment of costs is not an item by item assessment but must be done by reviewing the factors in Rule 57.01(1): Nobel v. Nobel, (2003), 17 CPC 6 46 (Ont. S.C.J.).
[24] Section 57.01(1) of the Rules of Civil Procedure outlines the factors that a court should consider in the exercise of this discretion. Rule 57.01(1)(i) allows the court to consider “any other matter relevant to the question of costs.”
[25] In addition to the enumerated factors in Rule 57, a court must keep in mind the overriding principal of reasonableness. In Bouchard v. Public Accounts Council for the Province of Ontario 2004 14579 (ON CA), 71 O.R. (3d) 291, the Court of Appeal stated that the fixing of costs does not begin or end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. What parties might expect to pay for costs is a relevant consideration.
[26] The fundamental principal was stated by the Court of Appeal in Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.):
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”
[27] In considering the factors in Rule 57.01, while there were a number of Plaintiffs which complicated the matter, individually the issues involving each Plaintiff, including Mr. Christensen were not particularly complex. The issues were of importance to the parties, however, it cannot be said that the importance extended beyond the parties themselves. As it relates to Mr. Christensen whose matter was settled, I do not find any conduct that tended to lengthen or unnecessarily delay the proceeding. I do not find that there was any step which was improper, vexatious, or which unnecessarily delayed the duration of the litigation. I do not find the requested rate being claimed by Plaintiff’s counsel to be unreasonable.
[28] I must also take into account the issue of proportionality. The settlement in this case was $30,000.00 plus interest for a total of $43,920.00. Mr. Hacio asks for fees and disbursements totalling $37,415.73 of which $29,478.19 is fees. Mr. Hacio submits that although this amount is very close to the amount awarded it is justified as the matter was complex and difficult to process. With respect, I do not agree. As I have noted earlier, on its own this was not a complex matter. Any complexity arises from a single counsel acting for a multitude of other Plaintiffs and trying to manage the matter individually and collectively.
[29] In arriving at the amount of costs in this file, I have considered the Defendant’s argument with respect to individual items claimed for both the liability generally and for individual portions of costs. I have not made any specific calculation in relation to the use of the 1/15 formula used by Justice Smith other than keeping it in mind as a guideline. What I have done is consider an amount that is fair and reasonable in this Plaintiff’s case.
[30] In relation to the costs for this Plaintiff I award costs in the amount of $25,000.00, inclusive of disbursements and GST. Interest shall run on that amount as of the date of the acceptance of the offer.
Mr. Justice T. A. Platana
Released: July 3, 2013
COURT FILE NO.: CV-01-0474
DATE: 2013-07-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAM MEADY, EVELYN SHEPHERD, CARRIE ANN TAPAK, DENNIS CROMARTY, THAYNE GILLIAT, FAYE EVANS, SHELDON CHRISTENSEN, a Minor by his Litigation Guardian, CATHY DUCHARME, ANTHONY CLOWES, TANYA CLOWES and BRIAN ELIZABETH CLOWES and SHAUNA PAULINE CLOWES, minors by their Litigation Guardian, TANYA CLOWES, BRIAN GORDON ADAMS, MICHAEL DAVID FINN, JENNIFER ESTERREICHEER, JOHNATHAN THERIAULT, an infant under the age of eighteen years by his Litigation Guardian LYNE THERIAULT and LYNE THERIAULT,
Plaintiffs
- and –
GREYHOUND CANADA TRANSPORTATION CORP., CONSTABLE COREY PARRISH, CONSTABLE MARTIN SINGLETON, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ALBERT ARNOLD DOLPH and SHAUN DAVIS,
Defendants
DECISION ON COSTS
Re: Sheldon Christensen
Platana J.
Released: July 3, 2013
/mls