SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-284025PD2

DATE: 20130816

RE: SUDESH MANGAL, VINCENT RAVI MANGAL, by his Litigation Guardian, SUDESH MANGAL and SARINA MANGAL, by her Litigation Guardian,
SUDESH MANGAL

Plaintiffs

AND:

WILLIAM OSLER HEALTH CENTRE, BRAMPTON MEMORIAL HOSPITAL CAMPUS, DR. INDIRA CHANDRAN, DR. SHELDON GIRVITZ, DR. JORDAN BOHAY, DR. KEITH LOUIS, DR. AZHAR MALIK, DR. A. SINGH, DR. I. GOLD, DR. D. PRICE, DR. A. MACDONALD, DR. D. DUBOIS, DR. J. DOE #1, DR. J. DOE #2, NURSE CARON HALL, NURSE AMY ROMYN, NURSE TARA BENFORD, NURSE CONNIE BRAIN, NURSE MARY BELL, NURSE K. GRAVAC, NURSE T. ELLIS, NURSE ANN BOTTING, NURSE IRIS PERRY, NURSE V. GUTWEIN, NURSE J. DOE #1 and NURSE J. DOE #2

Defendants

BEFORE: Mr. Justice Marrocco

COUNSEL:
Richard M. Bogoroch and Linda J. Wolanski, for the Plaintiffs

Simon A. Clements and Anna L. Marrison, for the Defendant

Nina Bombier and Ryan Stewart Breedon, for the Defendants

HEARD: In Writing

costs ENDORSEMENT

[1] The plaintiffs were unsuccessful in this matter. There was no causal connection between the breaches of the standard care identified in this proceeding and the death of Sharon Mangal.

[2] The defendant William Osler Health Centre seeks costs in the amount of $272,000.

[3] Sharon Mangal died on February 16, 2004 after a caesarean section in which she gave birth to Sarina Mangal. The defendant William Osler Health Centre offered to settle this matter on December 16, 2012 approximately 8 years later. The defendant offered $75,000 plus $14,500 in costs plus disbursements.

[4] The plaintiffs from whom costs are sought are Sudesh Mangal-Sharon Mangal’s husband and Vincent Mangal-Sharon Mangal’s son who was four years old when his mother died; he was 13 years old at the time of this trial and Sarina Mangal-Sharon Mangal’s daughter who was nine years old at the time of the trial.

[5] Sudesh Mangal is employed by the provincial government. He is presently a single father attempting to raise two children. He left the William Osler Health Centre on February 16, 2004 after having been told by the nursing staff that his wife was doing well. When he returned to the hospital she was dead. Vincent Mangal has quite naturally found it difficult to deal with the sudden and unexpected death of his mother.

[6] In its cost submissions the William Osler Health Centre indicates that it is a publicly funded nonprofit healthcare institution and that its legal defence costs are paid out of a pooled fund into which all subscribing members of the Health Insurance Reciprocal of Canada have contributed.

[7] Section 131 of the Courts of Justice Act provides that costs are in the discretion of the Court. This applies to both the decision to award costs and the assessment of the quantum of costs.

[8] It is true that the plaintiffs declined an offer to settle. It is also true that the charting practices, although not causally connected to Ms. Mangal’s death, were justifiably criticized during the proceedings. I was conducting a civil negligence trial and not a disciplinary hearing concerning nursing charting practices.

[9] This Court is a Court of equity as well as a Court of law. It is my view that imposing $272,000 in costs upon these plaintiffs would amount to a failure by me to exercise the discretion given to me by the Courts of Justice Act. It would amount to the mechanistic application of the principle that costs follow the cause without regard to the totality of the circumstances in this case. It would be a decision devoid of any hint of the principle of access to justice.

[10] There will be no order for costs.

Marrocco J.

Date: August 16, 2013