Court File and Parties
COURT FILE NO.: CV-07-38517
DATE: 2014/01/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jabea Quan, Elizabeth M. Quan, and Kingue D. Quan,
Henry J. Quan and TJ Edimo Quan by their litigation guardian Jabea Quan, Plaintiffs
AND
Staar Surgical Company, Surge Canada Medical Limited and Dr. Dennis Conrad, Defendants
BEFORE: Mr. Justice James McNamara
COUNSEL:
Caroline C. Failes and David Migicovsky, for the Plaintiffs
Wayne B. Brynaert and Any Mayer, for the Defendant, Dr. Dennis Conrad
HEARD: May 6, 2013
ENDORSEMENT ON COSTS
[1] This matter was scheduled to proceed to trial on May 6, 2013.
[2] On April 17, 2013, the defendants served an updated medical report. Several days later, the plaintiffs served a responding report. On April 26, 2013, the defendants’ counsel requested that plaintiffs’ counsel agree to an adjournment of the trial as it was his position that a new issue had been raised in the plaintiffs’ responding report. The plaintiffs’ counsel denied the request, as in his view, no new issue had been raised. I heard a contested motion for adjournment on May 6, 2013, and was persuaded, with some reluctance, that the trial ought to be adjourned. I also ordered, along with certain other things, that the defendants would pay the plaintiffs’ costs thrown away.
[3] The plaintiffs and defendants were unable to agree on costs and have now made written submissions.
[4] It is the position advanced on behalf of the plaintiffs that firstly they are entitled to costs on a substantial indemnity basis, and they also seek payment for the hours they submit were docketed in the period of approximately two months prior to the trial date, with that total reduced by 30 percent to reflect the fact that a portion of the time spent on trial preparation will not have to be repeated. The defendants submit that there is no basis for an award on a substantial indemnity scale, and that the amount of time claimed is excessive and the 30 percent discount to reflect preparation that will not need to be repeated is insufficient.
[5] In view of my endorsement dated May 6, 2013, there is no issue that the plaintiffs are entitled to the costs thrown away. Scale of costs and the quantum of same are the only issues that need be addressed.
[6] Turning firstly to scale, I share the view of the defence that this is not a proper case for costs on a substantial indemnity basis. The case law that has developed on costs has repeatedly stated that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The other circumstance is where the losing party has engaged in behavior worthy of sanction. I am not persuaded, on the material before me or the submissions made, that either of the required circumstances exist here, and the proper scale is partial indemnity.
[7] I turn now to quantum. In their written submissions, plaintiffs’ counsel seek partial indemnity costs for time spent by counsel in the amount of $79,601.40, and for a law clerk in the amount of $2,328.00. These amounts are arrived at, as earlier indicated, after a reduction of 30 percent to reflect time spent in trial preparation that will not need to be repeated.
[8] The amount of time claimed is, in my view, excessive. I start with the reduction of 30 percent to reflect time spent by counsel on preparation that will be reusable. In my view, in a case of this nature, more than 30 percent will not need to be repeated. An example is illustrative. Plaintiffs’ counsel in their submissions point out that considerable pretrial preparation time went into preparing for the examinations in-chief and cross-examination of various experts. That is undoubtedly true in a medical malpractice case. That sort of preparation is time consuming, involving meeting with experts, cross-referencing the medical evidence with other evidence, etc. However, once that work is done, it is done, and experienced counsel such as we have on this case will have prepared a detailed trial outline of their examinations and cross-examinations which, with perhaps some modest updating, is completely reusable, firstly as a refresher prior to trial, and then as a tool at the trial itself.
[9] Next, while undoubtedly this is a case where two counsel acting for the plaintiffs are required, there is bound to be, despite best efforts, some duplication of effort.
[10] Finally, the total time spent by counsel in the approximately two months prior to trial, was on a gross basis, in excess of 450 hours. That seems somewhat excessive and beyond what might reasonably be expected.
[11] In exercising my discretion under s. 131 of the Courts of Justice Act to award costs, I must take into account the factors set forth at rule 57.01(1) of the Rules of Civil Procedure. In fixing an appropriate quantum I must be guided by the overriding principle of reasonableness and fairness, and in deciding what is fair and reasonable, the expectation of the parties is a relevant factor. I must also have regard to principles of proportionality. Having considered the matter as a whole in the context of the factors under the rule, I am of the view that costs thrown away for counsel’s time in the amount of $50,000.00 plus HST would be appropriate.
[12] I am not persuaded, at this time, that there ought to be any award of costs in terms of the law clerk. That is better left to the trial judge. It seems to me that the type of services rendered by the law clerk would be necessary, whether trial proceeded this past May or in the future. In other words, perhaps with some modest additions to books of documents, etc., what the law clerk did is still completely reusable.
[13] In terms of disbursements, any that will have to be paid again prior to the new trial date were thrown away and are allowed.
Mr. Justice James McNamara
Date: January 3, 2014
COURT FILE NO.: CV-07-38517
DATE: 2014/01/03
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jabea Quan, Elizabeth M. Quan, and Kingue D. Quan,
Henry J. Quan and TJ Edimo Quan by their litigation guardian Jabea Quan, Plaintiffs
AND
Staar Surgical Company, Surge Canada Medical Limited and Dr. Dennis Conrad, Defendants
BEFORE: Mr. Justice James McNamara
COUNSEL: Caroline C. Failes and David Migicovsky, for the Plaintiffs
Wayne B. Brynaert and Any Mayer, for the Defendant, Dr. Dennis Conrad
ENDORSEMENT ON COSTS
Mr. Justice James McNamara
Released: January 3, 2014