Superior Court of Justice - Ontario

CITATION: Polera v. Wade, 2015 ONSC 2148

COURT FILE NO.: CV-09-387199

DATE: 20150407

RE: Felicity (Felicia) Polera and Brian Pittana / Plaintiffs

AND: Dr. Philip Wade, The Canadian Hearing Society, Kelly Duffin, Stephanie Ozorio and Jane and John Doe / Defendants

BEFORE: Justice Edward P. Belobaba

COUNSEL: Amani Oakley and Neil Oakley for the Plaintiffs / Moving Parties Anne Spafford and Zohar Levy for the Defendant Philip Wade / Responding Party Gary Srebrolow for the Defendant Canadian Hearing Society / Observing

HEARD: February 3, 2015

Costs award on Partial Summary Judgment motions

[1] This is a medical malpractice action. The plaintiff alleges that a three-year delay in the diagnosis and removal of a growing brain tumour left her with a range of serious and debilitating injuries. The defendant physician agrees that he breached the applicable standard of care in failing to detect the tumour and that some serious injuries were sustained by the plaintiff as a result, but does not agree with the detailed listing of either the breaches or the injuries as proposed by the plaintiff. The defendant physician also raises a contributory negligence defence.

[2] The plaintiff brought a motion for partial summary judgment in three parts: first, for a listing of the breaches of the standard of care; second, for a similar listing of the injuries sustained; and third, for an order dismissing the defence of contributory negligence.

[3] In an Endorsement dated November 14, 2014 I granted the first part and listed the breaches of the standard of care.[^1] In a decision released on February 20, 2015 I granted the second and third parts, listed the specific injuries sustained by the plaintiff and dismissed the defence of contributory negligence.[^2]

[4] The plaintiff now seeks the costs of these motions and asks that they be awarded on a substantial indemnity basis. She says the defendant’s position on the three-part motion was without merit and resulted in protracted, costly and unnecessary litigation. The plaintiff says the defendant should have conceded the obvious (the breaches of the standards of care and the uncontroverted list of injuries) but chose instead to resist at every turn, forcing the plaintiff to prove every single aspect of these breaches and injuries.

[5] This is not a case for substantial indemnity. There is no evidence of any reprehensible or bad faith behavior on the part of the defendant.[^3] The plaintiff may be correct that the defendant forced the plaintiff to litigate every aspect of this three-part summary judgment motion but this alone does not justify an elevated costs award. The appropriate scale is partial indemnity. However, the fact that the defendant would not agree to a detailed listing of the breaches of the standard of care or of the injuries sustained by the plaintiff, the latter in the face of the uncontroverted evidence of three medical experts, no doubt prompted counsel for the plaintiff to spend more time documenting their position than would otherwise have been the case. This additional and arguably unnecessary legal work may well justify a higher than normal costs award.

[6] On a partial indemnity basis, the plaintiff asks for $153,129 in fees, taxes excluded, and $15,893 in disbursements, taxes excluded, for a total of $169,022. The defendant is adamant that a costs award of some $170,000 on a partial summary judgment motion that, in essence, simply resolved a disagreement (albeit a serious disagreement) about the terms of a court order and dismissed a contributory negligence defence is inherently unreasonable and would grossly offend the “reasonable expectation” norm that is at the bedrock of modern-day costs awards.

[7] I agree with the defendant. I note that the costs awards in other medical malpractice summary judgment motions appear to be in the range of $30,000 to $40,000.[^4] It is true that I was favourably impressed by the detailed submissions and overall quality of presentation by counsel for the plaintiff but it is also true that an unsuccessful defendant should not be obliged to fund a legal effort that, although impressive, was perhaps more than was required to prevail on the motion.

[8] The defendant submits that a costs award in the range of $20,000 to $25,000 would be reasonable and appropriate. Given the time and effort that went into the several case conferences and the two court attendances, not to mention the volume of material that was filed by the plaintiff to fully document the relief sought on the motion, a $25,000 costs award would be insufficient and unreasonable. I also note that the defendant has elected not to provide his own bill of costs for comparison purposes.

[9] I must therefore fix the costs fairly and reasonably having regard to the circumstances of this case, the parties’ submissions and the applicable law. My primary obligation, of course, is to consider the factors set out in rule 57.01(1) and fix an amount that is fair and reasonable to the unsuccessful party in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant.[^5]

[10] In my view, a reasonable costs award on a partial indemnity basis on the unusual facts herein– where the plaintiff was compelled to prove every aspect of her (not unreasonable) request for a detailed listing of the standard of care breaches and the medical injuries sustained, and also move for a dismissal of the contributory negligence defence – should be, at most, in the range of $50,000 to $60,000.

[11] Costs are therefore fixed at $60,000 all-inclusive, payable forthwith by the defendant physician.

Belobaba J.

Date: April 7, 2015

[^1]: Polera v. Wade Endorsement (November 14, 2014, unreported). [^2]: Polera v Wade, 2015 ONSC 821. [^3]: The decision relied on by the plaintiff, 1005633 Ontario Inc. v. Winchester Arms Ltd., [2000] O.J. No. 4327 (S.C.J.), awarded substantial indemnity costs but did so on a clear finding of bad faith conduct. No such finding can be made here. [^4]: See the discussion in Di Tacchio v. London Health Sciences Centre, 2013 ONSC 4409 at paras. 4, 7 and 19-20. [^5]: Boucher v. Public Accountants Council of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 at para. 26.