ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-32721
DATE: 2013-11-04

B E T W E E N:

Michelle Ellen Botosh

William J. Sammon and Amanda Estabrooks, for the Plaintiff

Plaintiff

• and -

City of Ottawa, Greenbelt Construction Company Limited, Dibblee Construction Limited and Lafarge Paving & Construction Limited

Mitchell Kitigawa for the Defendants the City of Ottawa and Greenbelt Construction Company Limited and

Kelly P. Hart and Kristopher Dixon for

the Defendants, Dibblee Construction Limited and Lafarge Paving & Construction Limited

Defendants

HEARD: via written submissions

Madam Justice B. R. Warkentin

Amended Reasons on Costs

This is an amendment to the Reasons on Costs released on October 28, 2013. The amendment occurs at ¶19.

1In paragraph 202 of my Reasons for Judgment dated August 22, 2013, I ordered the parties to provide me with written submissions on costs within 30 days. I have now received and reviewed those submissions.

Confirmation of Total Damages

2In my summary of damages at paragraph 200 of my reasons, I failed to order pre-judgment interest on the past loss of income and special damages. This was in error. As with the general damages, the plaintiff is entitled to pre-judgment interest for past loss of income and special damages, albeit on a different scale than I awarded for general damages. Therefore I accept the Plaintiff's calculation of her total damages as set out in her Costs Submissions as being $379,055.00.

Costs

3In paragraph 162 of my reasons for judgment I invited the parties to address allegations of misconduct in bringing this action to trial in their costs submissions.

4Counsel for the Plaintiff is seeking costs on a substantial indemnity basis in the amount of $368,544.58, which is inclusive of GST/HST and disbursements of $73,480.36. Her partial indemnity costs are $287,425.07 and her total costs are $436,104.14.

5It was her position that she should be paid substantial indemnity costs due to the manner in which the Defendants conducted this litigation. She alleged that among other things, the Defendants failed to produce an important engineering drawing and instead relied upon an incorrect drawing in support of their position on liability. The Plaintiff also submitted that the Defendants accused her of dishonesty about the location in which she fell and the route she had taken on the day she fell.

6Counsel for the Defendants submitted that the Plaintiff should only be entitled to costs on a partial indemnity basis in a substantially reduced amount. They argued that this litigation took 8 years to get to trial and during that period of time the Plaintiff had five different lawyers and represented herself on two different occasions.

7It was the position of the Defendants that as a result of the number of lawyers involved, there was added cost and delay in moving the matter forward. They claimed that the Plaintiff should only be entitled to costs based upon the equivalent efforts of what it would take one lawyer to bring this case to trial from the beginning to the end. In attempting to estimate this, counsel for the Defendants have suggested that their respective substantial indemnity costs would be a good benchmark for the plaintiff’s party and party costs, recognizing that a plaintiff would typically have costs that exceed the costs of Defendants.

8Counsel for the City of Ottawa and Greenbelt suggested an appropriate award of costs would be $130,000.00 and Counsel for Dibblee suggested an appropriate amount of costs on a substantial indemnity basis would be $150,000.00 and a partial indemnity award should be $90,000.00.

9In proposing a lower amount, Counsel for Dibblee noted that there were cross-claims that the Plaintiff was largely able to avoid and thus her costs should not be significantly greater than the costs of the Defendants.

10The Defendants argued that the Plaintiff's exaggeration of the height of the curb is what led them to believe she had fallen at another location and therefore their defence on this issue was reasonable.

11While there were Offers to Settle made during the course of the litigation, the Plaintiffs' Offers to Settle were greater than my damage award and the Defendants' Offers to Settle were lower than what I awarded at trial.

12In reviewing the Bill of Costs for the solicitor for the Plaintiff, I agree with counsel for the Defendants that there was duplication of effort due to the fact that the Plaintiff switched lawyers on at least 4 occasions during the litigation and the Defendants should not be obligated to cover that cost.

13While the Defendants may have done certain things that caused delay, the Plaintiff was equally, if not more responsible for delays that resulted in this litigation dragging on unnecessarily long.

14I do not, however, find either party's conduct to be so egregious as to disentitle the Plaintiff to her reasonable partial indemnity costs. For the same reason, I reject the Plaintiff's submission that she should be awarded substantial indemnity costs in this litigation.

15In Fong et al v. Chan et al,¹ the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:

(1) to indemnify successful litigants for the cost of litigation;

(2) to encourage settlements; and

(3) to discourage and sanction inappropriate behaviour by litigants.

16One of the main purposes of a costs award is to “compensate the successful party to the litigation for some of the legal expenses that party has incurred.”² In this case, the Plaintiff was successful, albeit not on everything he was seeking.

17One must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The Ontario Court of Appeal in Boucher v. Public Accountants Council For The Province of Ontario³ stated that the fixing of costs does not begin nor 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 rather than an amount fixed by the actual costs incurred by the successful party.

18After considering the result achieved by the Plaintiff, as well as the particular circumstances in this case I award the Plaintiff costs in this proceeding on a partial indemnity basis in the amount of $200,000.00 inclusive of GST/HST and disbursements.

19The payment of costs is apportioned in the same manner in which liability was apportioned.

Madam Justice B. R. Warkentin

Released: November 4, 2013

COURT FILE NO.: 05-CV-32721
DATE: 2013-11-04

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michelle Ellen Botosh

Plaintiff

• and –

City of Ottawa, Greenbelt Construction Company Limited, Dibblee Construction Limited and Lafarge Paving & Construction Limited

Defendants

AMENDED REASONS ON COSTS

This is an amendment to the Reasons on Costs released on October 28, 2013. The amendment occurs at ¶19.

Warkentin J.

Footnotes

1. 1(1999), 1999 2052 (ON CA), 46 O.R. (3d) 330
2. 2Televisions Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999 (ON CA), [1997] O.J. No. 1944 (Ont. C.A.) at para. 24
3. 32004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)