CITATION: Tomec v. Magnat, 2015 ONSC 1928
COURT FILE NO.: CV-09-1204-00
DATE: 20150325
AMENDED: June 1, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sotira Tomec – and – Gursharn Mangat
BEFORE: Justice David L. Edwards
COUNSEL: Rikin Morzaria and Will Keele, for the Plaintiff
Chester Wydrzynski and Marie Lampropoulos, for the Defendant
AMENDED COSTS ENDORSEMENT
Correction Notice: The Costs Endorsment was amended to
add the name Marie Lampropoulos as counsel for the Defendant.
[1] I presided over a 16 day jury trial in January 2015. The plaintiff was a pedestrian who was struck on September 12, 2008 by the vehicle driven by the defendant.
[2] At the beginning of the trial, the defendant conceded liability; the issue for the trial was the quantum of damages.
[3] On January 27, 2015, the jury returned a verdict of $100,000 for general damages, $84,962.24 for future care costs, $119,558.15 for past income loss, $83,865.60 for future income loss and $16,581.01 for out-of-pocket expenses for a total of $404,967.
[4] The award was reduced to $285,281.07 after pre-judgment interest, the relevant deductions for income replacement benefits under Section 267.8 of the Insurance Act, and deductible for general damages were considered.
[5] The defendant served an offer to settle on the plaintiff under Rule 49 on September 6, 2013.
[6] The terms of the offer included $125,000 for her general damages, $150,000 for future care costs, $25,000 for past income loss and $200,000 for future income loss, for a total of $500,000. This was in addition to an advance payment in the amount of $20,000 paid by the defendant in September 2011.
[7] The plaintiff does not dispute that the offer met the formal requirements of an offer to settle under Rule 49.
[8] The plaintiff seeks her costs in the amount of $140,439.06 for the period up until the defendant made the offer. The defendant seeks costs from the date of the offer forward on a full indemnity basis in the amount of $167,160.26.
Principles
[9] The court has discretion to determine costs under s.131 of the Courts of Justice Act. Rule 57.01(1) of the Rules of Civil Procedure sets out the relevant factors that courts should consider in awarding costs.
[10] I will refer to the relevant principle as I deal with each issue.
[11] I will first examine the Plaintiff’s claim.
Plaintiff’s Costs
[12] The defendant agrees that the plaintiff is entitled to her costs up to the date of the offer, but disputes the quantum claimed by the plaintiff.
[13] The defendant submits that the legal fees claimed by the plaintiff are excessive and unwarranted. Specifically, the defendant objects to $6,600 fees for post-discovery work-up and remote preparation for trial prior to mediation and $7,430 for preparation for the second pre-trial.
[14] This was a complex case. The injuries to the plaintiff were significant; her pre-existing physical condition further complicated the matter; and liability was not conceded until the commencement of trial.
[15] I take no issue with respect to the hours claimed by the plaintiff for the work required up to the date of the offer.
[16] Also, I am satisfied that the hourly rates charged by the plaintiff are appropriate.
[17] I find that legal fees in the amount of $56,564.98 are reasonable when one considers the factors set out in Rule 57.01(1).
[18] With respect to disbursements, the defendant objects to the fees paid to Dr. Scott Garner and Joel Kumove, and the disbursement paid for medical illustrations.
[19] In a pre-trial motion, I ordered that the plaintiff could call either Dr. Garner or Dr. Paitich, but not both, as there was significant duplication between their evidence. The defendant submits that, as Dr. Garner’s evidence was excluded from trial, his fee of $1,700 plus HST, (being $1,921) should not be a proper disbursement.
[20] I agree that Dr. Garner’s fee of $1,700 plus HST ($1,921) should be disallowed as an unnecessary disbursement.
[21] Joel Kumove, a Vocational Rehabilitation and Assessment Specialist, was not called as a witness by the plaintiff. The defendant submits that his fee of $3,600 plus HST should be disallowed.
[22] I am satisfied that, when Mr. Kumove was retained in August 2010 to assess the plaintiff, this was a reasonable step, and one for which the plaintiff should be properly compensated.
[23] The defendant also objects to the full account of Artery Studios for medical illustrations, as only four of seven illustrations were used at trial. I am directed to Reis v. Domain 2004 CanLII 54257 (ONSC) where the court ordered that the plaintiff should only recover costs for three illustrations used at trial, and not for the fourth one that was excluded as inadmissible.
[24] In the matter before me, the plaintiff elected to use only four of the seven illustrations. I did not order that the other three were inadmissible.
[25] I am satisfied that, in requesting the seven illustrations, the plaintiff was acting reasonably. It would be improper for me to apply 20/20 hindsight and disallow the full fee.
[26] The fee of $12,805 is an appropriate disbursement.
[27] I order that the plaintiff’s total fees and disbursements claimed of $140,439 be reduced by $1921, and award to the plaintiff costs in the amount of $138,518.
Defendant’s Claim
[28] The defendant’s claim is for $167,160.26 on a substantial indemnity basis, for the costs incurred from the date of the offer.
[29] He submits that, when one considers (a) the amount claimed versus recovered; (b) the plaintiff’s role in lengthening the proceedings; and (c) the intended impact of Rule 49, costs on a substantial indemnity basis should be awarded from the date of the offer.
[30] The plaintiff asserts that there is no justification to award the Defendant costs on a substantial indemnity basis.
[31] I agree that there are no factors present to justify costs to the defendant on a basis other than partial indemnity. There has been no conduct of a reprehensible nature that would justify costs on a substantial indemnity basis. McBride Metal Fabricating Corp. v. H & W Sales Co., 2002 CarswellOnt 1200 (C.A.) at paras 36-41.
[32] The plaintiff also submits that the fact that the defendant maintained until just before the start of trial that the plaintiff was partly responsible for the collision increased the plaintiff’s preparatory costs including expert reports and is a factor that I should consider. Rule 57.01(1)(a).
[33] I agree that is a factor that I should take into consideration.
[34] Further, the plaintiff asserts that the defendant’s witness, Dr. Clark, repeatedly and in the face of my clear instructions gave improper evidence, which resulted in considerable delay and expense. Further, defence counsel was aware, at least partly, of the change in Dr. Clark’s evidence before he testified; however, the Court was not made aware of it prior to Dr. Clark testifying. As a result, the plaintiff submits that Dr. Clark’s disbursements, totaling $11,450.04, should be eliminated or reduced.
[35] I qualified Dr. Clark to give expert evidence. He testified that previously he has been qualified to give expert evidence in Superior Court. He either knows, or should know, the rules governing the nature of his testimony. His breaches of those rules resulted in a motion to strike the jury. His breaches caused considerable cost and delay to the trial.
[36] I find that, in light of the defendant’s last minute concession regarding liability and the impact of Dr. Clark’s testimony, it is appropriate to reduce the costs sought by the defendant. I award costs on a partial indemnity basis to the defendant, in the amount of $100,000, for the period from the date of the offer.
Summary
[37] In summary, I award to the plaintiff costs in the amount of $138,518 and costs to the defendant in the amount of $100,000. The difference between the two awards is $38,518. The defendant shall forthwith pay that amount to the plaintiff.
Edwards J.
DATE: March 25, 2015
CITATION: Tomec v. Magnat, 2015 ONSC 1928
COURT FILE NO.: CV-09-1204-00
DATE: 20150325
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sotira Tomec – and – Gursharn Mangat
BEFORE: Justice David L. Edwards
COUNSEL: Rikin Morzaria and Will Keele, for the Plaintiff
Chester Wydrzynski and Marie Lampropoulos, for the Defendant
AMENDED COST ENDORSEMENT
Edwards J.
DATE: March 25, 2015
AMENDED: June 1, 2015