Court File and Parties

Citation: Brown v. Baum, 2015 ONSC 2483 Court File No.: CV-12-455226 Date: 2015-04-22 Superior Court of Justice - Ontario

Re: Diana Brown, Plaintiff And: Dr. Joseph Baum, Defendant

Before: Justice Graeme Mew

Counsel: Osborne Barnwell, for the Plaintiff Stuart Zacharias, for the Defendant

Heard: In Writing

Costs Endorsement

[1] I heard two summary judgment motions in this matter on 15 January 2015.

[2] The plaintiff Diana Brown brought a motion for partial summary judgment on the issue of liability in this medical malpractice action. I dismissed the motion on the basis that the evidentiary record was insufficient for me to be able to confidently make the findings of fact which would have been necessary for me to finally dispose of the issue of liability.

[3] The other motion was brought by the defendant. It sought dismissal of the plaintiff’s action based on a limitation defence. I dismissed that motion also, holding that the action was commenced within two years of the date on which, having regard to the nature of her injury, loss or damage, a proceeding would have been an appropriate means to seek to remedy it.

[4] In view of what I described in my reasons for decision (reported at 2015 ONSC 849) as the “divided success”, I indicated that I was presumptively of the view that each side should bear his or her own costs of the motions. However, I provided the parties with the opportunity to make submissions to persuade me that a different costs disposition would be appropriate. I specified that costs submissions (exclusive of any costs summary) should not exceed four pages in length.

[5] The plaintiff delivered costs submissions consisting of 13 pages in length. No request was made to exceed the four page limit that I had stipulated.

[6] In the absence of such a request, or indeed any explanation for my direction being ignored, I have considered only the first four pages of the costs submissions filed by the plaintiff.

[7] The plaintiff’s lawyer first addresses efforts which he made to persuade the defendant’s lawyer that the limitation issue should not be dealt with summarily and that it was not necessary for the plaintiff to obtain an expert report. Concern was expressed about consuming resources which the plaintiff simply cannot afford.

[8] The submission then goes on to express concern about the manner in which the plaintiff has been treated by the defendant’s lawyer.

[9] Continuing, the lawyer for the plaintiff “respectfully observes that it is not clear why the Court did not adopt the case law placed before it which supported the Plaintiff’s case”. That is not, in my view, either a respectful or an appropriate submission to make when addressing the issue of costs.

[10] The responding submission from the defendant is four and a half pages long. The lawyer for the defendant acknowledges this and requests the court’s indulgence in such regard.

[11] In order to be even-handed, I have only read the first four pages of the defendant’s submissions. The defendant’s lawyer repudiates any suggestion that he mistreated the plaintiff and advocates for each party to be responsible for its own costs.

[12] It is rare that squabbles between lawyers prior to the hearing of a motion will influence the outcome on costs. In the present case, the submissions that I have reviewed and the correspondence referred to in the submissions does not persuade me that there has been any behaviour on the part of the defendant’s lawyer worthy of sanction in the form of a costs award against the defendant.

[13] I am not otherwise persuaded by the plaintiff’s submissions that I should depart from my initial assessment that costs should lie where they fall, given the divided success of the parties.

[14] There will therefore be no order as to costs with respect to either motion. Each party will bear its own costs.

Graeme Mew J.

Date: 22 April 2015