ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-414488
DATE: 20140926
BETWEEN:
SAROJANIE (MAZIE) NANDLAL and HAITRAM NANDLAL
Plaintiffs
– and –
THE TORONTO TRANSIT COMMISSION
Defendant
Joel P. McCoy, for the Plaintiffs
Stephen Sargent, for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Defendant, The Toronto Transit Commission (“TTC”), successfully brought a motion for summary judgment to dismiss the Plaintiff Sarojanie Nandlal’s slip and fall negligence action. See Nandlal v. Toronto Transit Commission, 2014 ONSC 4760. The TTC now requests costs on a partial indemnity basis of $21,331.47, inclusive of disbursements of $1,726.81.
[2] The action proceeded through pleadings, examinations for discovery, mediation, and the motion for summary judgment.
[3] The TTC, which has an in-house legal department, does not keep time dockets, and its Bill of Costs is based on estimates of the time spent at each phase of the action and partial indemnity rates of $175 per hour for the lawyers involved and $80 per hour for the paralegal clerk.
[4] Ms. Nandlal submits that there should be no order as to costs because she was seriously injured in the fall, she has experienced only a modest employment income after returning to work after the fall, and her prospects of improving her employment situation is unlikely given her circumstances.
[5] Ms. Nandlal says that she should not be punished by having to pay costs for bringing a reasonable claim and for defending the motion for summary judgment.
[6] While inability to pay and hardship may be factors that a court may consider in exercising its discretion to award costs (and I shall consider them in making an award for costs in this case), Ms. Nandlal is mistaken in thinking that awarding costs on a partial indemnity scale against a litigant who brings a reasonable claim is some form of punishment.
[7] Partial indemnity costs are not punitive and awarding costs serves different purposes in the administration of justice. Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.
[8] The TTC was sued. It was successful in its defence. The normal rules for costs are that the successful party is entitled to receive costs as a partial indemnity for the legal expense it incurred in the action. Indemnifying the successful party for its legal expense is not meant to be a punishment, and it would not be punishment in the immediate case.
[9] I have no doubt that had Ms. Nandlal been successful in her action, she would have expected to receive costs as an indemnity for the legal expense of advancing her claim and that she would not have excused the TTC from paying costs based on an argument that its defence was reasonable.
[10] Ms. Nandlal takes issue with various aspects of the TTC’s claim for costs, and she says that she should not be punished for the TTC’s failure to keep dockets. Apart from some modest reductions for services that appear to have been duplicated because of a change of lawyers at the TTC, there is no merit to Ms. Nandlal’s complaints of over-lawyering or over-charging of legal services. Once again, her complaint about being punished is misinformed.
[11] Having reviewed the TTC’s costs outline and noting that Ms. Nandlal did not disclose the amount of time spent by her own lawyers attending at the discoveries, mediation, and preparing for the summary judgment motion, I conclude that a reasonable and fair award of partial indemnity costs that should have been in Ms. Nandlal’s reasonable expectations is $17,500, all inclusive.
[12] Order accordingly.
Perell, J.
Released: September 26, 2014
COURT FILE NO.: CV-10-414488
DATE: 20140926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAROJANIE (MAZIE) NANDLAL and HAITRAM NANDLAL
Plaintiffs
– and –
THE TORONTO TRANSIT COMMISSION
Defendant
REASONS FOR DECISION – COSTS
PERELL J.
Released: September 26, 2014