Court File and Parties

Court File No.: 07-CV-338348

Date: 2013/10/24

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sallie Green

AND:

York Region Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd.

BEFORE: Mr. Justice A.J. O’Marra

COUNSEL: Gerald Sternberg, for the Plaintiff

Leanne Rapley, for the Defendant

HEARD: June 20, 21, 26-28, July 2, 3, 2013

COSTS ENDORSEMENT

A.J. O’MARRA J.:

[1] The Plaintiff, Sallie Green, brought an action against the York Region Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd. in which she claimed damages for injuries suffered on August 20, 2005 in an attempt to extricate herself from a stuck elevator in her condominium apartment building. The Plaintiff settled her claim against the Condominium Corporation, but continued her claim against ThyssenKrupp. Her claim for $57,000 damages against ThyssenKrupp was dismissed after a trial of approximately 6.5 days, with costs awarded to the Defendant. The parties were directed they could make written submissions as to costs if they were unable to agree as between themselves.

[2] I have received their written submissions and the following is my costs endorsement.

[3] The Defendant, ThyssenKrupp, the successful party, asks for costs of $62,500 on a partial indemnity scale. The submitted bill of costs reflect total costs of $81,385.51, comprised of $72,954.85 (including GST/HST) in fees, and $8,430.66 (including GST/HST) in disbursements.

[4] The Plaintiff submits that in keeping with the objective of the Simplified Rules of procedure of controlling costs, “to curb the crippling cost of litigating small claims”, and considering the age of the Plaintiff, 80, and her relatively impecunious circumstances the overall costs of the Defendant should not exceed $10,000 in this case.

[5] Pursuant to s.131(1) of the Courts of Justice Act costs of and incidental to a proceeding are at the discretion of the court. The factors the court should consider in the exercise of its discretion in the award of costs are set out in Rule 57 of the Rules of Civil Procedure. In addition to the result of the action and any offer to settle the factors in Rule 57 I consider applicable in the instant case are the amount claimed and recovered, the complexity of the proceedings and the conduct of the parties that tend to shorten or to lengthen unnecessarily the proceedings.

[6] In this matter, there were offers to settle, both formal and informal both parties submit should be considered.

[7] On September 1, 2010, the Defendant made a Rule 49.10 offer to settle in writing before any examinations for discovery took place. The Defendant would consent to the dismissal without costs, the offer remaining open to 4:01 p.m., Monday, September 13th, 2010, and thereafter the Defendant would pay $1 to each of the parties and consent to a dismissal following payment of the ThyssenKrupp costs on a partial indemnity basis. The latter offer would remain open until two minutes after the start of the trial. In its written materials ThyssenKrupp stated that at the date of the offer their costs were approximately $5,000.

[8] Later at a pre-trial conference the Defendant made an offer to settle in the amount of $5,000 which was rejected by the Plaintiff.

[9] On June 13, 2013 the Plaintiff made an offer in writing to settle damages for $25,000 plus costs open to the giving of evidence of the first witness at trial.

[10] The Defendant submits that because of its Rule 49.10 offer to settle which was more favourable than the trial decision that it should receive partial indemnity to that date and thereafter costs on a substantial indemnity basis.

[11] The Plaintiff submits that the costs consequences of Rule 49 do not apply where the Plaintiff did not recover judgment, although concedes that there is jurisdiction to award a “bonus”, taking into account that offers were made, but not accepted, which beat the result. (See S & A Strasser Ltd. v. Richmond Hill (Town), 1990 6856 (ON CA), [1990] O.J. No. 2321 (OCA) and Richardson (RE), 2008 68191 (SCJ)).

[12] In response to the Plaintiff’s offer to settle ThyssenKrupp offered to pay $10,000 all in. In its written materials ThyssenKrupp states: “On June 28th, Thyssen having spent its $10,000, rejected the Plaintiff’s further attempt to settle for an amount equal to her costs.” Thyssen’s position was that throughout the action the Plaintiff consistently rejected reasonable attempts to settle the matter and at no time did the Plaintiff propose the parties waive entitlements to costs and avoid trial.

[13] Another factor in consideration is that this was not a particularly complex case and did not require the length of trial time accorded it. The Plaintiff’s case consisted in large part just the testimony of the Plaintiff describe what happened to her. While the trial was shortened to some extent by the consent of the parties to a withdrawal of the jury notice it was lengthened by approximately 1 ½ to 2 days of trial time as Plaintiff’s counsel explored the content of documentation provided by the Defendant in answer to undertakings in which further discovery could have occurred before trial, but had not been sought.

[14] In my view, the trial was unnecessarily protracted by Plaintiff’s counsel’s attempt to elicit evidence in support of his theory that the Defendant’s employees failed to shut down the elevators before the Plaintiff tried to extricate herself and had falsified their repair documentation to that end. In addition there was the unnecessary adjournment for the examination of a data base of the Defendant by a non-expert of the Plaintiff and subsequent recall of two defence witness, the result of which had no bearing on the outcome of the action.

[15] The costs sought by the Defendant, based on hourly rates for lead counsel, junior counsel, and law clerks set at or below the costs grid appear reasonable in the circumstances of proceedings that took place over a six year period.

[16] However, I bear in mind that this matter was commenced under the Simplified Rules of Procedure. Originally the amount claimed was the maximum $50,000, later amended to $57,000 on consent by the Defendant. With respect to matters commenced under the Simplified Rules of Procedure, costs awards must be reasonable and proportionate to the amount in dispute, in order to enable a person of modest means access to justice (see Stratton Electric Limited v. Guarantee Company of North America, 2007 2654 (SCJ)). Further, in Glazman v. Toronto (City), [2002] O.J. No. 2767 Lane J. stated with respect to the principle of proportionality in considering costs:

In my view, the costs in a Simplified Rules case should be fixed in the normal way, by reference to the factors enumerated in Rule 57.01(1) and the costs grid, but bearing in mind the objectives of the simplified procedure as noted in the cases cited. Counsel must be aware that the scale of the action will have a marked impact upon what will be regarded as reasonable expenditures of time and money in preparation and presentation of the case. … Counsel whose experience entitles them to top rates may find that they will not be awarded such rates because they are simply more than modest cases can reasonably bear. This is not a phenomenon created by the Simplified Rules, or the costs grid; it has been a fact of life at the Bar since time immemorial that small cases cannot carry big fees or disbursements.

[17] I accept the submission made by Plaintiff’s counsel that in the scheme of matters this was a “small case”, although one of great significance to the litigants. Even though the Plaintiff may have sought to establish 100% liability against the Defendant earlier in the proceeding as the its potential liability was more likely 50% of the $57,000 damages sought, $28,500 as acknowledged by counsel for the Defendant in written submissions.

[18] Even though the Plaintiff owns the condominium unit in which she resides I accept that she is on a fixed income of Government pensions. I am satisfied that she is a litigant of modest means.

[19] I also bear in mind that I must adhere to the guiding principle as set out in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] 71 O.R. (3rd) 291 (CA) that the overall objective in fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[20] I consider as well the observation made by Lax J. in First Metro Consultants Limited v. 301094 Ontario Limited, [2003] O.J. No. 2894 (SCJ) at para. 8:

In fixing costs, the court does not do so pursuant to a simple arithmetical calculation or approach, but in accordance with the principles referred to above and enunciated in Rule 57.01(1). It is also important to attempt to establish some consistency so that litigants faced with a trial or motion can fairly access what they may be called on to pay, should they refuse an offer to settle or be unsuccessful.

[21] In this instance, the costs sought by the Defendant far exceed the amount that was realistically in dispute, as well as what an unsuccessful litigant might reasonably expect in a small case. Accordingly, the costs sought should be moderated, notwithstanding the offers to settle being beaten in the result by the Defendant. Further, any unnecessary lengthening of the proceeding was not such as to warrant costs on a substantial indemnity basis or even on a partial indemnity basis in the amount requested by the Defendant.

[22] In the circumstances of this case, considering the means of the Plaintiff, the amount in dispute, and other factors considered under Rule 57, I fix the costs payable by the Plaintiff to the Defendant in the amount of $20,000, plus $8,430.66 disbursements (including GST/HST) as claimed to be fair and reasonable.

A.J. O’Marra J.

Released: October 24, 2013