ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-CV-434344
DATE: 20130913
BETWEEN:
SEERAGEE SANDRA MOHAMMED
Plaintiff
(Responding Party)
– and –
ROBERT MOUNSEY
Defendant
(Moving Party)
Victor Opara, Counsel for the Plaintiff
Risa Kirshblum, Counsel for the Defendant
WRITTEN SUBMISSIONS ON COSTS
ENDORSEMENT: GREER j.:
[1]
Background
On June 4, 2013, I heard the Defendant’s Motion for an Order to compel the Plaintiff to answer all the outstanding Undertakings and Refusals set out in the Defendant’s Chart prepared from discoveries, which that took place on September 11, 2012. I made a detailed Endorsement requiring the Plaintiff’s compliance for the reasons set out therein. At the end of the Endorsement I said:
Since the Defendant was successful on the Motion, counsel shall send a Bill of Costs plus time dockets, any case law and written submissions no longer than 3 pages to me at Osgoode Hall and serve (it) on the Plaintiff within 30 days of this Order. Plaintiff shall have 7 days thereafter within which to respond and send to me at Osgoode Hall.
2The Defendant’s Counsel, Ms. Kirshblum, sent in her submissions to me on July 3, 2013. The Plaintiff’s counsel, Mr. Opara, therefore had until July 10 to send his client’s submissions to me. He wrote on July 10, 2013 to inform me that his office was flooded for a second time and he required an extension. I granted the Plaintiff an extension to July 22, 2013, to have her submissions served and filed. They were sent to me on that date. Since Mr. Opara also sent copies of all his receipts for his law office’s purchase of new equipment and supplies due to damages caused by the flood, I am returning those to him with a copy of this Endorsement, as they are personal to his law firm and not part of this proceeding.
[3]
Defendant's Position
The Defendant seeks his Costs on a substantial indemnity basis in the amount of $11,412.57 payable within 30 days. Counsel relies on Rule 57.01(1), which sets out the factors the Court is to consider in exercising its discretion to award costs; including what amount of costs an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding which took place on the Motion. The conduct of the party is to be considered and whether that conduct tended to shorten or lengthen the proceeding.
4It is the Plaintiff’s position that the Defendant was put to a substantial expense to try to force the Plaintiff to comply. The Defendant says that she failed to meet production obligations and that she did not co-operate in the scheduling of this Motion.
5The Defendant also points to the fact that Mr. Opara had said he was not going to appear on the Motion. He had told the Defendant’s counsel that it “does not serve any purpose”, to appear. Someone called the Court to say Mr. Opara was on his way but would be late. He arrived at 11:00 a.m. Since the matter was first on my List, I held it down until the afternoon.
6The Plaintiff had been sent the Undertakings and Refusals Chart 3½ months before the Motion and no answers had been given. I ordered that all be answered within 30 days. On July 12, 2103, Ms. Kirshblum wrote to say that she had received nothing by way of reply from the Plaintiff. I had also ordered Mr. Opara to withdraw some offensive comments he made about Plaintiff’s Counsel at the hearing. No such withdrawal was made.
7Plaintiff’s counsel sent me an original Affidavit sworn by the Plaintiff on July 17, 2013 with exhibits attached. It was not a proper answer to all the Undertakings and Refusals. I then received the Costs Submissions of Mr. Opara dated July 22, 2013.
[8]
Plaintiff's Position
Mr. Opara says that in fixing his client’s Costs, I should not apply the substantial indemnity rate. He complains about work done by a junior lawyer on the Defendant’s file. He said no special skill is required in the preparation of such a Chart. He says Counsel’s time spent on the Motion is “ridiculous”. He says the Court should have heard oral submissions on Costs. Ms. Kirshblum was to fly out late that afternoon on firm business and, it was Mr. Opara’s lateness that caused the delay.
9Mr. Opara says his client, “…is impecunious and relies on ODSP.” He relies on the Court of Appeal decision in S. Joyce Attis and A. Tesluk v. Her Majesty the Queen in Right of Ontario, as Represented by the Ministry of Health, the Attorney General for Canada et al., 2011 ONCA 675. In my view this case has no application to the case at bar. Attis and Tesluk, supra, was a Class Action proceeding. In para. 15, the Court notes that the proceedings were started with the Plaintiff’s consent, as is the case at bar. There is nothing in the case which says that an unsuccessful Plaintiff, who is impecunious, should not have to pay Costs. If that were the case, it would lead to impecunious plaintiffs not having to consider the merits of any steps they took in their litigation.
[10]
Analysis and Decision
The action brought on by the Plaintiff is one based on a claim of medical malpractice against the Defendant who was her treating physician. Such claims are very serious when made, and costly to defend. I have set out in my Endorsement that the Plaintiff’s Counsel made 2 false statements in his correspondence with the Defendant’s Counsel. I said that he was “argumentative throughout the Motion” and “could provide no proper reasons for the Refusals and failure to comply with undertakings”.
11Ms. Kirshblum was called to the Bar in 1996 and her partial indemnity billing rate is $300 per hour and $400 per hour on the substantial indemnity scale. I see no excessive time spent on the hearing. The disbursements of $1,135.22 are verified and the partial indemnity costs are $8,728.22, inclusive of disbursements and HST, which I fix as being reasonable in the circumstances of this case. I have taken into account the principle of proportionality in lowering the Costs to the partial indemnity scale, given the Plaintiff’s impecuniosity. Order to go fixing the Defendant’s Costs at $8,728.22.
Greer J.
Released: September 13, 2013
COURT FILE NO.: 11-CV-434344
DATE: 20130913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEERAGEE SANDRA MOHAMMED
Plaintiff
(Responding Party)
– and –
ROBERT MOUNSEY
Defendant
(Moving Party)
WRITTEN SUBMISSIONS ON COSTS
Greer J.
Released: September 13, 2013