ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-0012
DATE: 2013-09-24
B E T W E E N:
Linda Colistro
Michael Cupello, for the Plaintiff
Applicant
- and -
TBay Tel, The Corporation Of The City Of Thunder Bay, and Steve Benoit
Derek Zulianello, for the Defendant TBay Tel,
Brian Babcock for the Defendant The Corporation of the City of Thunder Bay, not appearing
Christopher Hacio for the Defendant Steve Benoit, not appearing
Respondent
HEARD: September 19, 2013
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision on Motion
[1] The plaintiff brought a motion, returnable on September 19, 2013, to compel the defendant, TBay Tel, to serve a medical report arising from a medical examination of the plaintiff by the defendant’s medical expert on April 26, 2013. The report was provided to the defendant by its medical expert in June 2013.
[2] Counsel for the plaintiff had written to counsel for the defendant on May 19, July 5, August 20 and August 23, 2013, requesting a copy of the report. In his August 23, 2013 letter, plaintiff’s counsel advised that if he had not received the report by September 3, 2013, he would bring a motion to compel production. The motion was served on September 10, 2013. The defendant provided the report on September 11, 2013.
[3] The plaintiff requested that the defendant pay the costs of the motion. The defendant refused on the basis that the motion was unnecessary because counsel for the defendant had previously agreed to produce the report after his associate returned from holidays on September 3, 2013 and because there was no urgency to the matter.
[4] On December 20, 2012, I had ordered that the plaintiff set this action down for trial by March 31, 2013 and that the action be placed on the second jury sittings in 2014.The plaintiff has not yet set the matter down for trial. No pre-trial has been scheduled.
[5] The only issue to be dealt with on September 19, 2013, was the disposition of the plaintiff’s request for costs of the motion to produce the medical report. The plaintiff submits that it should receive costs on a substantial indemnity basis in the sum of $3,327.00, comprised of $2,757.50 for fees, plus disbursements of $187.00 and HST of $382.79.
[6] The plaintiff relies on rule 33.06(2). Section 105 of the Courts of Justice Act provides that an order may be made that a party undergo a physical or mental examination by one or more health practitioners. Rule 33.06 (2) provides that the party who obtained the order shall forthwith serve the report on every other party. An order was never granted under s. 105 of the Courts of Justice Act. Rather, in January 2013, the plaintiff consented to a medical examination after the defendant advised that if consent was not forthcoming it would bring a motion to compel the examination.
[7] Although the plaintiff acknowledges that an order was not made under s. 105 of the Courts of Justice Act, the plaintiff submits that she should not be penalized for consenting to an examination in the face of a threatened motion to obtain an order and that rule 33.06 (2) should apply.
[8] The plaintiff emphasizes that the report in question was not provided until September 11, 2013, despite several written requests beginning in May 2013, and only after the plaintiff had gone to the expense of bringing a motion.
[9] The defendant submits that no costs should be ordered.
[10] The defendant submits that rule 33.06 (2) is not applicable because no order under s. 105 of the Courts of Justice Act was made.
[11] The defendant submits that the plaintiff is in contempt of the December 20, 2012 order requiring her to set the action down for trial by March 31, 2012 and that accordingly her motion should not be heard until she has purged her contempt.
[12] The defendant submits that the motion was unnecessary because it had undertaken to provide the plaintiff with the report after counsel’s return from holidays on September 3, 2012 and that, in fact, it did provide the report on September 11, 2013.
[13] The defendant also submits that no costs should be ordered because the motion did not have to be argued. The defendant relies on a 1906 decision of Master Cartwright in Canadian General Electric Co. v Keystone Construction Co. [1906] O.J. No. 754. In that case after discoveries were completed on October 4, the plaintiff’s solicitor wrote to the defendant’s solicitor on November 3, asking for production of a contract that had been referred to on discovery but not brought to the discovery. The defendant’s solicitors wrote on November 6 advising that they would endeavor to procure the contract and produce it as soon as they could obtain it. On November 23, anxious to have the case placed on the sittings, the plaintiff brought a motion requiring the defendant to file a further affidavit on production of documents. On November 24, the plaintiff’s solicitors received the contract, before they had been served with the motion and produced it to the defendant before the return of the motion. The only issue left was the disposition of costs. The plaintiff requested costs in any event of the cause. The Master held, at para 9,
“This is the extreme measure of what is usually given on Chambers motions, and is the penalty of, so to say, contumacious or unexplained default, or of some glaring and inexcusable irregularity. Neither of these charges can be made against defendants. It would seem that the solicitors had been practising on easy terms, and this is not to be discouraged by imposing penalties whenever any little slip or oversight takes place.”
Discussion
[14] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[15] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[16] In Anderson v. St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508 (Ont. Div. Ct.), at para. 22, the Divisional Court set out the principles to be applied by the court in exercising its discretion (citations omitted):
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(O.b)
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases [if they can be found], should conclude with like substantive results.”
The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[17] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[18] In Zesta Engineering Ltd. v. Cloutier, [2001] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
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.
[19] I have determined that the defendant should pay costs of the motion, although not in the amount requested by the plaintiff.
[20] It is not necessary, in order for the plaintiff to succeed, that the matter fall within the provisions of rule 33.06 (2). The matter can be dealt with as one of disclosure and production of documents in general. There is an obligation of disclosure under rule 30.07, similar to that set out in rule 33. 06 (2). Where a party, after serving an affidavit of documents, comes into possession of a document that relates to a matter in the action that is not privileged, the party shall serve a supplementary affidavit of documents disclosing the additional documents. Under rule 30.02 (2), the party must produce that document for inspection if requested.
[21] The medical report was in the hands of the defendant in June 2013. The defendant knew from correspondence that it had received in May 2013 that the plaintiff was seeking production of the report. The plaintiff requested production of the report on three occasions after the report had been received by the defendant. The report was not produced until after the motion was served. The defendant has provided no explanation as to why it held onto the report after it had been received in June. Absent an adequate explanation, and in the particular circumstances of this case, I cannot find that the defendant produced the report “forthwith” after it came into its possession.
[22] I am concerned by the failure of the plaintiff to set the action down for trial as required by the order of December 20, 2012. However, I do not have sufficient evidence to find that this failure is a contempt of court disentitling the plaintiff to be heard. I regard it as a factor to be considered in exercising my discretion as to the amount of costs.
[23] I do not agree with the defendant’s submission that the decision in Canadian General Electric Co. v Keystone Construction Co. precludes me from awarding costs because the motion was settled prior to hearing. Under modern practice, it is usual to award costs to the successful party on a motion. It is not usual to make these costs recoverable only at the end of the litigation, “in any event of the cause.” In Canadian General Electric Co., Master Cartwright regarded “costs in any event of the cause” as being in the form of a penalty, to be imposed only when there was wilful disobedience or a “glaring and inexcusable irregularity”. Such criteria are not applicable today in determining whether a party should receive costs. Costs are not imposed as a penalty. They are imposed in cases such as this one to indemnity successful litigants for the costs of litigation and to encourage settlement. If behaviour is to be discouraged and sanctioned it is often done by imposing costs on a substantial indemnity basis. Inappropriate behaviour, however, is not required to impose partial indemnity costs.
[24] A party may be deprived of costs for the day of attendance on a motion where the order goes on consent. See Burlacoff Financial Services Inc. v Remax Professionals Inc., [2007] O.J. No. 3817 (S.C.J.). However, in my view, where, prior to the scheduled hearing, a motion has been resolved on the basis that the responding party agrees to the relief requested in the motion, and it was reasonable to have brought the motion, it is fair to award the moving party for costs incurred in preparing, serving and filing its motion materials. See Corsi v Fogler, Rubonoff LLP 2011 ONSC 999 (S.C.J.).
[25] Having concluded that costs should be payable by the defendant, I see no basis to depart from the usual practice of awarding costs in matters such as this on a partial indemnity basis. This is not a rare and exceptional case where substantial indemnity costs would be warranted to sanction misconduct. There was no “misconduct” on the part of the defendant.
[26] In my view, the 11 hours spent in preparation for the motion is excessive. The affidavit in support of the motion is not complex and consists largely of correspondence between counsel. I take into account that 9 hours of preparation were spent by a solicitor with one year’s experience. I also take into account, in exercising my discretion, that the plaintiff has not set the matter down for trial, as ordered on December 20, 2012. This unexplained delay may be considered in the overall determination of what is fair and reasonable in the circumstances, especially where the plaintiff’s motion is based, itself, on delay in producing the medical report.
[27] Having regard to the factors set out in rule 57.01 (1) and the principles discussed in Anderson, and Boucher and Zesta Engineering, and my comments in these Reasons, I am of the opinion that it is fair and reasonable for the defendant to pay to the plaintiff partial indemnity costs for the motion in the sum of $1,000.00, all inclusive.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: September 24, 2013
COURT FILE NO.: CV-08-0012
DATE: 2013-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Linda Colistro
Applicant
- and –
TBay Tel, The Corporation Of The City Of Thunder Bay, and Steve Benoit
Respondent
DECISION ON MOTION
Shaw J.
Released: September 24, 2013
/mls