SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: Miller v. Her Majesty the Queen in Right of Canada, 2015 ONSC 2554

COURT FILE NO.: 56039

DATE: 2015/05/05

RE: STEPHEN EDWARD MILLER

(Plaintiff)

• And –

HER MAJESTY THE QUEEN, IN RIGHT OF CANADA, By its representative the Attorney General of Canada

(Defendant)

BEFORE: JUSTICE I. F. LEACH

COUNSEL: Thomas F. Delorey, for the Plaintiff

Derek Edwards, for the Defendant

HEARD: In writing

ENDORSEMENT (COSTS)

[1] On January 29, 2015, I released my judgment in this matter, following a four day trial in May of 2014.

[2] For reasons set out in my judgment, since reported as Miller v. Canada (Attorney General), [2015] O.J. No. 427 (S.C.J.), I found the defendant partially liable for a slip and fall that the plaintiff experienced while he was an inmate in a correctional facility operated by the defendant.

[3] In particular, I apportioned 70 percent of liability for the accident to the defendant, with the remaining 30 percent attributed to the plaintiff himself, owing to his identified contributory negligence.

[4] The plaintiff claimed only for general non-pecuniary damages caused by the accident, and those damages were assessed at $100,000. Apportioning those damages pursuant to the aforesaid liability and contributory negligence determinations, I directed that judgment should issue in favour of the plaintiff, in the amount of $70,000, with interest to be recovered by the plaintiff on that amount pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended.

[5] Because my decision was reserved, the parties had no opportunity to make submissions regarding costs, and my reasons for judgment therefore invited written cost submissions.

[6] Those now have been delivered by both parties. In particular, I have received the following: written cost submissions from the Plaintiff dated February 12, 2014; responding written cost submissions from the Defendant dated February 24, 2015; and reply cost submissions from the Plaintiff March 2, 2015.

[7] Although the parties’ written submissions were directed primarily to the question of costs, they also addressed an apparent dispute about the extent to which the plaintiff is entitled to pre-judgment interest.

Overview of Party Positions

[8] In broad terms, the Plaintiff seeks recovery of his costs of the action on a partial indemnity basis, fixed at $92,172.00, (inclusive of fees, disbursements and taxes, and the costs associated with pursuing costs). Amongst other points, the plaintiff generally emphasizes the following:

a. The recovery obtained by the plaintiff at trial was close to the amount of an offer to settle made by the plaintiff before trial, and significantly in excess of the defendant’s “hard line” pre-trial settlement offer to have the plaintiff’s claim simply discontinued on a without cost basis.

b. The plaintiff was required to prepare for trial on three occasions, over an extended period of time, thereby necessitating “repetition but not redundancy” in terms of the efforts required to bring the matter to trial.

c. The retention and involvement of experienced senior counsel was reasonably required, owing to the complexities of the case, and challenges created by the plaintiff’s disabilities.

d. The underlying issues were said to be important, not simply because of the plaintiff’s individual experience and claims, but because the responsibilities owed by the defendant to prison inmates “extend beyond the particular facts of each case”, warranting that they be “periodically assessed to reflect community values”.

e. The hourly rates and costs incurred were said to be reasonable, having regard to demonstrated efforts to ensure organization and efficiency, and the need to overcome the defendant’s steadfast insistence that it had a reasonable system of maintenance in place at the time of the relevant underlying accident.

f. While the costs sought admittedly exceeded the plaintiff’s formal recovery, they were said to be proportional, reasonable and necessary, especially when viewed from an access to justice perspective.

[9] In relation to pre-judgment interest, the Plaintiff sought confirmation that he was entitled to $31,624.66, based on a calculation using:

• a base amount of $70,000;

• an interest period running from January 19, 2006, to January 30, 2015;

• an interest rate of 5%; and

• a per diem interest amount of $9.59.

[10] For its part, the Defendant responded with submissions that generally include or emphasize the following:

a. It agrees that costs should be awarded only on a partial indemnity basis.

b. It submits that the plaintiff should not recover costs of repeated and redundant preparation associated with what it described as “two adjournments” said to have been caused by the plaintiff.

c. It says the costs sought by the plaintiff are disproportionate to the amount recovered by the plaintiff, and that costs awarded to the plaintiff should not exceed that amount.

d. It says that the amount recovered by the plaintiff at trial indicates that the matter should have been pursued through use of the Rule 76 simplified procedure.

e. It says that success was divided, having regard to such matters as the plaintiff’s effective abandonment of additional and/or “unnecessary” claims against the defendant, (including claims for damages in relation to an earlier slip and fall accident, an alleged income loss stemming from the second slip and fall accident, and a subrogated claim by OHIP), as well as my finding of contributory negligence.

f. It disputes the plaintiff’s suggestions of complexity, submitting that the action involved a “common and simple trial on occupier’s liability”, focusing primarily on factual issues, without any “novel applications of law”. It notes that certain evidence was agreed, that expert witnesses were not required, that there were no unusual motions or evidentiary issues, and that the trial, once commenced, generally proceeded “in an ordinary fashion with no significant delays”. In the circumstances, the defendant submits that conduct of the trial did not require counsel with special expertise or experience.

[11] For such reasons, the defendant says a more appropriate award of partial indemnity costs would be $36,881.60 plus applicable HST, (which by my calculation would result in a total fixed cost award of $41,676.21).

[12] As for prejudgment interest, the defendant essentially says there should be no such interest awarded in relation to delay associated with adjournments for which the plaintiff was responsible. (According to the defendant’s calculation, this would reduce the recovery period by 594 days, resulting in a deemed total interest period of 2704 days at the agreed per diem rate of $9.59, or a total prejudgment interest award of $25,931.36.

[13] In reply, the Plaintiff’s submissions included emphasis of the following:

• No costs for extra preparation are being claimed in relation to one identified postponement of the trial in October of 2012, (described as a “minor movement” of the trial date by 40 days).

• In relation to another suggested “adjournment”, (when the matter was on a trial list for a usual two week period, in November of 2012), it was conceded that plaintiff counsel asked the trial co-ordinator for an indulgence so as not to call the matter for two days beyond its possible commencement date, (to permit attendance at his mother’s funeral in Ottawa). However, the matter may not have been called in any event during the first week of that particular trial list, and it was defence counsel who was unavailable during the second week, prompting the defendant to move, on consent, for an adjournment.

• Few if any costs were devoted to defence of the plaintiff’s initial income loss claim, as abandonment of such a claim was confirmed by a single question asked during the plaintiff’s oral discovery examination.

• The plaintiff was obliged by law to assert the subrogated claim by OHIP, which OHIP nevertheless then abandoned.

• Distributive cost awards are rare, and the plaintiff submits that such an award would be inappropriate in this case.

Analysis

GENERAL PRINCIPLES

[14] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.

[15] This is supplemented by the provisions of Rule 57.01, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131.

[16] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.

[17] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4^th) 557 (Ont.Div.Ct.).

[18] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant. See Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.

[19] In arriving at a global determination of a cost award that is “fair and reasonable” in this particular case, having regard to all the circumstances, my considerations therefore include but are not limited to those outlined below.

AMOUNT CLAIMED AND RECOVERED – RULE 57.01(1)(a)

[20] Rule 57.01(1)(a) permits the court to consider “the amount claimed and the amount recovered in the proceeding”.

[21] As noted in my reasons for judgment, the prayer for relief in the plaintiff’s statement of claim requested only a sum of money, ($250,000.00), in addition to interest and costs.

[22] No specification was provided in the prayer for relief as to the type of damages being sought. However, in the course of the pleading, reference was made to “serious and lasting injuries”, (in respect of which some particulars were given), which in turn were said to have resulted in:

• “pain and suffering” and loss of “enjoyment of life”, (which on any sensible view was a clear reference to alleged general non-pecuniary damages);

• an alleged impairment of the plaintiff’s “ability to earn his livelihood”, (suggesting a claim for what is usually described in more detail as an alleged past and/or future loss of income, and/or a loss of competitive position or advantage); and

• “medical and other out-of-pocket expenses”, (which effectively was a claim for special damages, described in terms broad enough to cover a subrogated claim for treatment expenditures incurred by OHIP).

[23] The pleading also indicated that the plaintiff was claiming in relation to two slip and fall accidents.

[24] Not all of the aforesaid claims were pursued at trial. In particular:

• during the course of oral discovery examinations, the plaintiff readily confirmed that no claim for income loss was being pursued; and

• at the outset of trial, plaintiff counsel indicated and confirmed that the plaintiff was seeking only general non-pecuniary damages caused by his second slip and fall accident.

[25] In closing submissions, plaintiff counsel suggested that $120,000 would be an appropriate assessment of the latter damages, (in contrast to defence counsel’s principal closing submission that the plaintiff should recover nothing whatsoever).

[26] As noted above, I assessed the plaintiff’s general damages resulting from the second accident at $100,000, but awarded the plaintiff $70,000, having regard to my finding of contributory negligence and resulting apportionment of liability.

[27] Given the nature of the claim and damages awarded, there are no applicable legislated deductibles or collateral benefits to be factored into the cost analysis.

[28] In the result, the plaintiff fell short of his stated expectations or hopes at trial, but did considerably better than the defendant’s suggested outcome.

[29] Although the defendant seemed to suggest that the plaintiff be penalized for overstating his claim, and for initially advancing causes of action and/or sources of damages that were abandoned on the way to trial, I take a different view of the matter.

[30] In that regard, although the prayer for relief exceeded the sums sought at trial, (which in my experience reflects a common practice, no doubt designed to avoid the need for later pleading amendments in respect of which leave may not be granted), the overstatement in this case was relatively modest compared to the pleaded exaggerations seen in many other claims before the court.

[31] Moreover, it seems to me that, in order to promote claim resolution, a plaintiff should not be penalized for sensibly abandoning claims before trial, (thereby narrowing the issues in dispute for the benefit of all concerned), unless there are indications that the defendant has been put to unnecessary expense in responding to such abandoned claims.

[32] In this case, there is little or no such evidence, in my opinion. Without limiting the generality of the foregoing:

• The income loss claim was abandoned at an early stage in the litigation, without any indication or evidence that the defendant had to respond with anything more than a very brief request for confirmation, during oral discovery examinations, that an income loss claim was not being pursued.

• The plaintiff was obliged by law to advance the subrogated OHIP claim before it was then formally abandoned by OHIP, but there is nothing before me to indicate that the subrogated claim augmented either the plaintiff’s costs or the costs incurred by the defendant.

• It seems to me that, given the somewhat confused and confusing indications in the medical documentation, (addressed in my reasons for judgment), and the defendant’s pleaded reliance and reliance at trial on the alleged existence of pre-existing conditions and loss not properly attributable to the second slip and fall accident, inquiries relating to the plaintiff’s first slip and fall and its consequences were inevitable, regardless of whether the plaintiff initially relied on both slip and falls in advancing his claim. In the circumstances, I think it unlikely that an initial claim in relation to both slip and fall incidents augmented the cost of this litigation in any material way.

[33] In the course of its written cost submissions, the defendant also emphasized that the plaintiff’s net recovery of $70,000 suggested that this was a matter which should have been advanced pursuant to the simplified procedure.

[34] In that regard:

• this was a case wherein the judgment obtained by the plaintiff awarded money alone, in an amount less than $100,000, (exclusive of interest and costs);

• through the combined operation of Rules 76.13(2)1.i. and 76.13(2)2.i, the circumstances therefore engage the provisions of Rule 76.13(3); and

• pursuant to Rule 76.13(3)(b)(i), in particular, the plaintiff accordingly “shall not recover any costs unless … the court is satisfied that it was reasonable for the plaintiff to have commenced and continued the action under the ordinary procedure”.

[35] In this case, I am satisfied that the plaintiff acted reasonably in advancing this action under the ordinary procedure.

[36] With the benefit of hindsight, of course, it is easy to see that the objectively determined value of the plaintiff’s claim fell short of the legislated divide between simplified and ordinary procedure cases.

[37] However, plaintiff counsel’s view that Mr Miller had sustained “six figure” damages was justified, (as confirmed by my objective assessment), and there was a reasonable basis, (having regard to reported decisions on which the plaintiff relied), for believing that the court’s assessment possibly may have been somewhat higher than $100,000.

[38] Moreover, the considerable variation in case-specific determinations of contributory negligence, in relation to slip and fall claims, made the possibility of any such reduction and its extent inherently uncertain.

[39] Finally, given the state of the available documentation, (which in my view suggested a degree of uncertainty as to the timing of relevant events, and a reality that certain maintenance systems relied upon by the defendant were not adequately documented), this was a case where the plaintiff reasonably required access to more fulsome discovery procedures.

[40] For all these reasons, I think a litigant in the plaintiff’s position, approaching this claim without the benefit of hindsight, would be reasonably justified in approaching the matter through use of the “ordinary” litigation procedure.

[41] In that regard, I note that even the defendant did not seem to suggest that the amount of the plaintiff’s recovery should result in a total denial of costs, as suggested by the wording of Rule 76.13(3)(b)(i). Rather, the plaintiff’s recovery of a sum less than $100,000 was cited as one of many reasons why the costs awarded to the plaintiff should be much lower than those being sought.

PRINCIPLE OF INDEMNITY – RULE 57.01(1)(0.a)

[42] Rule 57.01(0.a) permits the court to consider, in exercising its cost discretion, “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer”.

[43] In this case, the plaintiff retained counsel called to the bar in 1984; i.e., counsel with more than 30 years of litigation experience.

[44] Although the defendant questioned the need for senior counsel involvement, I do not think such involvement was inappropriate or questionable. My reasons in that regard include the following:

• As outlined in my substantive decision, the plaintiff suffers from challenges and confusion, (reflected in the medical documents and the plaintiff’s testimony), that almost certainly would have made the receipt of instructions and preparation for trial far more challenging.

• The prison context presented additional liability issues and considerations taking the matter outside the realm of a “routine” slip and fall case, and the authorities presented to me at trial indicated that counsel retained by the plaintiff had litigated such matters in the past.

• In my view, the experience of plaintiff counsel was reflected in the organized, efficient and effective manner in which the case was presented at trial.

[45] I also find the suggested $320 partial indemnity rate of plaintiff counsel appropriate in the circumstances. It is a rate consistent with the guidelines suggested by the increasingly dated “Cost Bulletin”, (formerly entitled "Information for the Profession"), issued by the Costs Subcommittee of the Rules Committee when the “Costs Grid” was being repealed in 2005. It also is a rate which the defendant apparently was content to accept when calculating its suggested discounts from the costs sought by the plaintiff; (e.g., owing to suggested redundancy in preparation).

[46] That leaves, for consideration in relation to this factor, the “hours spent” on the matter by plaintiff counsel.

[47] In relation to the principle of indemnity, “the general rule [is] that a party who succeeds in recovery is entitled to its partial indemnity costs, subject to the discretion of the trial judge under s.131 of the Courts of Justice Act, supra, having regard to the factors in Rule 57 and related jurisprudence”. See Elbakhiet v. Palmer, 2012 ONSC 2529, [2012] O.J. No. 2890 (S.C.J.), at paragraph 30.1, in turn citing Norton v. Kerrigan, [2004] O.T.C. 559 (S.C.J.), at paragraphs 15-16, Joncas v. Spruce Falls Power & Paper Co., [2001] O.J. No. 1939 (C.A.), and Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), at p.776.

[48] However, included within Rule 57.01 are provisions expressly confirming, inter alia, that nothing in the rule, (or Rules 57.02 to 57.07 for that matter), limits the authority of the court under s.131 of the Courts of Justice Act to award or refuse costs in respect of a particular issue or part of a proceeding.

[49] Moreover, cost determinations also now bear in mind the need for all involved in our justice system to focus on cost control and proportionality, as emphasized by our Rules of Civil Procedure. For example, this is reflected in:

• Rule 1.04(1), the provisions of which include a direction to construe the rules, (and therefore Rule 57.01 as well), in a manner that will promote securing “the least expensive” determination of a civil proceeding on its merits; and

• Rule 1.04(1.1), which obliges the court to apply the rules and make orders, (including those relating to cost awards), in a manner “proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.

[50] Our courts therefore are wary of cost requests that exceed the trier of fact’s objective assessment of what a case really was worth. See, for example, Barlow v. The Citadel General Assurance Company, 2008 3215 (ON SC), [2008] O.J. No. 335 (S.C.J.), leave to appeal cost disposition denied (2009), 2009 ONCA 106, 94 O.R. (3d) 399 (C.A.), and Mayer v. 1474479 Ontario Inc., 2014 ONSC 2622, [2014] O.J. No. 1984 (S.C.J.).

[51] Such concerns are obviously in play here, where the plaintiff seeks a cost award of $92,172 as partial indemnity for the total costs said to have been incurred in pursuing an action that resulted in a judgment awarding damages of $70,000.

[52] Beyond this, I independently am troubled by the overall quantum of partial indemnity costs sought by the plaintiff, in relation to a trial that:

• lasted less than four complete days;

• involved only five witnesses, (three for the plaintiff and two for the defence), all of whom were lay witnesses in the sense that none were qualified to provide expert opinion evidence;

• proceeded without any contested motions, and with only minimal objections;

• involved relatively brief submissions as to the applicable law, (as opposed to the factual evidence); and

• required a somewhat modest amount of disbursements, (which with HST still total only $4,800.40 of the $92,172 in costs being sought).

[53] In that regard, I am mindful of the general admonition, voiced by Justice Nordheimer in Basedo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), but embraced by our Court of Appeal in Boucher v. Public Accountants Council (Ontario), supra, at paragraph 27, that “it is not the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered”.

[54] However, the global amount of partial indemnity costs being sought still seems quite high to me, having regard not only to the above considerations and the amount of damages recovered, but also the amount of costs frequently awarded in relation to much longer trials involving more complexity, as well as numerous expert witnesses and corresponding elevated disbursements.

[55] Although the plaintiff’s written cost submissions suggest that the amount of costs may have been driven to some extent by the need for repeated trial preparation in the wake of successive adjournments, I find it hard to understand why prior preparation for this particular trial could or would have required duplication to any great extent.

[56] Plaintiff counsel’s reliance on somewhat broad and “grouped” bill of cost descriptions of work done on the matter at various stages, (in lieu of more detailed time dockets), also makes it difficult to see how the time claimed was spent and justified.

[57] Having said all that, the principle of proportionality does not create any kind of effective “cap” on the quantum of costs that reasonably may be awarded, having regard to all the circumstances of a case. The amount of damages recovered is only one of many elements to be considered, and courts frequently have awarded plaintiffs costs in excess of the damages recovered. See Doyle v. Sparrow (1979), 1979 2024 (ON CA), 27 O.R. (2d) 206 (C.A.), at paragraph 10, and Volchuk Estate v. Kotsis, [2007] O.J. No. 4790 (S.C.J.), at paragraphs 24-26.

[58] Moreover, as I noted in Doolittle v. Overbeek, [2015] O.J. No. 471, it seems to me that, while disproportionality between expenditure and result therefore must not be ignored, (e.g., because doing so would eliminate an important incentive for litigants to engage in ongoing cost-benefit analysis, risk assessment and self-restraint), it also cannot be elevated to a decisive and controlling concern without implications for access to justice.

[59] The reality is that litigation of meritorious claims, (as I found this one to be), is an increasingly expensive proposition for most ordinary citizens.

[60] The challenges no doubt are compounded in a case such as this; i.e., where the claim will not involve extraordinarily high damages even if relatively successful, (after surmounting challenging liability and damage issues), and is brought by a disadvantaged plaintiff of very modest means against a defendant which inherently has the resources to take a very hard line in defence of a principled position.

[61] It seems to me that such a plaintiff is unlikely to find many lawyers willing and able to assist, without the prospect of obtaining some significant measure of partial indemnity reimbursement for the reasonable and inevitable costs of bringing such a matter to trial.

REASONABLE EXPECTATIONS OF UNSUCCESSFUL PARTY – RULE 57.01(1)(0.b)

[62] In this case, the defendant chose not to supply me with any information detailing the time and disbursements devoted to the matter from the defendant’s perspective.

[63] As emphasized by such authorities as Smith Estate v. Rotstein, 2011 ONCA 491, [2011] O.J. No. 3075, at paragraphs 50-51, leave to appeal refused, [2011] S.C.C.A. No. 441, and my own comments in Valastro v. The Corporation of the City of London, [2013] O.J. No. 1353, at paragraph 12(b), an unsuccessful party’s failure to supply information of its own costs is an important consideration in assessing the parties’ reasonable expectations, and permits an inference that the resources devoted to the matter by the unsuccessful party were comparable to those expended by the successful party.

[64] However, as emphasized by the provisions of Rule 57.01(0.b), viewed in context, the amount of costs that an unsuccessful party could reasonably expect to pay is but one factor to be considered.

[65] Moreover, I do not think the court’s independent obligation to determine what conforms to that “overriding principle of reasonableness” is eliminated or constrained by an unsuccessful party’s failure to tender its own bill of costs, or otherwise supply the court with an indication of the fees the unsuccessful party incurred in dealing with that matter.

APPORTIONMENT OF LIABILITY – RULE 57.01(1)(b)

[66] Rule 57.01(1)(b) permits the court to consider, in exercising its cost discretion, “the apportionment of liability”.

[67] In its written cost submissions addressing this consideration, the defendant relies in part on various aspects of the plaintiff’s initial claim that were not pursued at trial; for example, a claim for damages stemming from the plaintiff’s first slip and fall accident that apparently was abandoned without prior notice at or just before the commencement of trial. It says this means the defendant was “partially successful” in defending that “unnecessary claim”, warranting a measure of cost relief from the defendant’s perspective.

[68] For the reasons outlined above, I do not think formal abandonment of a claim for damages relating to the first slip and fall accident warrants any such cost relief in this particular case.

[69] More generally, what the defendant essentially suggests by reliance on such matters is a form of “distributive” cost award, and as emphasized by our Court of Appeal in Oakville Storage & Forwarders Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d), leave to appeal to the Supreme Court of Canada refused (1992), 6 O.R. (3d) xiii (note), and Skye v. Matthews (1996), 1996 1187 (ON CA), 47 C.P.C. (3d) 222 (C.A.), while distributive cost awards are still a possibility, they are rarely if ever appropriate.

[70] I do not think such an award is appropriate in this case, based on the considerations set forth above.

[71] However, the defendant also relies upon my finding of contributory negligence, and that does merit further consideration as an “apportionment of liability” concern.

[72] In particular, I am mindful of not only Rule 57.01(1)(c), which expressly includes “the apportionment of liability” as one of the many factors “the court may consider” in exercising its general cost discretion pursuant to s.131 of the Courts of Justice Act, supra, but also section 7 of the Negligence Act, R.S.O. 1990, c.N.1, as amended, which reads as follows:

Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just. [Emphasis added.]

[73] As the highlighted portions of the above legislative provisions make clear, imposing any reduction on a plaintiff’s cost award because of contributory negligence is a matter of court discretion, as is the quantum or percentage of any such reduction.

[74] Certainly, it is by no means a “given” that a plaintiff’s costs will be subject to a percentage deduction commensurate with the degree of his or her contributory negligence.

[75] Moreover, for the reasons outlined in Stillwell v. World Kitchen, 2013 ONSC 5360, [2013] O.J. No. 3778 (S.C.J.), following Wright v. Wal-Mart Canada Corp, 2010 ONSC 2936, [2010] O.J. No. 2206 (S.C.J.), on this point, I think a nuanced analysis is required, (rather than any kind of “automatic” approach), in order to determine whether or not there actually is any purpose or rationale for making such a deduction in the circumstances of any given case.

[76] In particular, the court should ask and consider such matters as:

a) Whether the plaintiff’s own contribution to the accident and resulting injuries was minimal, or substantially contributed to the need for litigation;

b) Whether addressing the plaintiff’s contributory negligence substantially affected the amount of costs incurred, (for example, by raising “discrete” issues akin to a plaintiff’s failure to wear a seat belt or properly maintain his or her vehicle in the context of a motor vehicle accident), necessitating additional lay and expert witness testimony that might otherwise not have been required; and

c) Whether or not the plaintiff’s contributory negligence materially affected the prospects for settlement of the action as reflected in offers of settlement, insofar as the quantum of damages associated with contributory negligence effectively created an unbridgeable gap or difference between the parties’ respective positions, thereby necessitating a trial that might otherwise have been avoided.

[77] In my view, this more detailed and reasoned approach to possible application of a “contributory negligence reduction” is much more consistent with the discretionary nature of the relevant legislative provisions, as well as the Court of Appeal’s general admonition in Boucher v. Public Accountants Counsel (Ontario), supra, that determination of a fair and reasonable cost award in any particular case should not be a simple “mechanical exercise”.

[78] In this particular case:

a. I found Mr Miller 30% at fault for what happened, in relation to his second slip and fall accident, and his “own contribution to the accident and resulting injuries” accordingly was not “minimal”. However, I also found the defendant 70% to blame for the accident, despite its steadfast denial of any responsibility whatsoever for what happened, such that the “need for litigation” was inevitable regardless of Mr Miller’s contributory negligence.

b. In the circumstances of this case, it is not easy to isolate discrete matters associated with Mr Stilwell’s contributory negligence, (akin to seatbelt issues in motor vehicle accident litigation), that necessitated evidence or argument that probably would not have been presented and addressed in any event. The focus throughout was on prevailing weather conditions, operational rules on which the defendant relied to suggest the plaintiff should not have been where he was at the time of the accident, the defendant’s professed system of maintenance, and the circumstances of the second slip and fall accident – including the plaintiff’s footwear, (evidence of which did not really lengthen the trial in any significant way). Such matters related to both negligence and contributory negligence, and in my opinion the corresponding evidence was inextricably bound together, in the sense that it almost certainly would have been led in any event.

c. Prior to the commencement of trial, the plaintiff had offered to settle the matter in exchange for the defendants’ payment of $75,000 plus the amount of the subrogated OHIP claim, as well as prejudgment interest in accordance with the Courts of Justice Act, supra, and costs as agreed, fixed or assessed. For its part, the defendant had offered to settle the dispute by way of the action being wholly discontinued by the plaintiff, in exchange for the Defendant’s agreement not to pursue the plaintiff for costs. Thus, even if the plaintiff had conceded the existence of contributory negligence at 30 percent, or perhaps even more than that, and discounted his claim accordingly, the gap between the parties’ respective pre-trial settlement positions was still so vast that a trial would have been required in any event to resolve the dispute. To use the wording employed in the Wright case: “the amount of [Mr Miller’s] damages that was attributable to [his] own negligence, in the percentage found …, did not approach the difference between the amounts that each side offered to the other. [His] negligence therefore did not materially affect the prospects for settlement of the action or contribute in a general way to the costs that the parties subsequently incurred.”

[79] Having regard to all these considerations, and the ultimate goal of arriving at a cost determination consistent with the “overriding principle of reasonableness” for such an action, I am not persuaded, on balance, that the “circumstances render [it] just” to apply a global reduction for contributory negligence.

COMPLEXITY OF PROCEEDING AND IMPORTANCE OF ISSUES – RULES 57.01(1)(c) AND RULES 57.01(1)(d)

[80] Rules 57.01(1)(c) and 57.01(1)(d) permit the court to consider, in exercising its cost discretion, “the complexity of the proceeding” and “the importance of the issues”.

[81] In my view, there were aspects of this case that did involve complexity.

[82] Many of those were factual in nature.

[83] In particular, for the reasons set forth in my substantive decision, determination of the underlying facts was complicated significantly by the plaintiff’s inability to recall matters with temporal precision, as well as ambiguities and/or a corresponding lack of precision in the available documentation, (much of which was prepared by personnel employed by the defendant). This increased the difficulty of determining the nature, location, timing and consequences of important events.

[84] Further factual difficulties effectively were created by lack of documentation concerning the creation, implementation and monitoring of the relevant system of maintenance relied upon by the defendant; (i.e., in relation to the walkways and entrances of housing units, as opposed to the system of maintenance relating to roads or other pathways in the prison complex).

[85] As indicated in my substantive reasons, there were legal complexities as well, such as those raised by the defendant’s supplemental duties of care owed to prison inmates, (which inherently made this matter more nuanced than a “routine” slip and fall case), and the somewhat novel issues arising from the defendant’s reliance on its published non-visitation rule, considered against the fact-specific backdrop of the plaintiff’s complete inability to read.

[86] For present purposes, I accept that such issues raised matters of broader significance, (although the possible implications for other cases no doubt will be fact specific), in addition to the fundamental importance of this matter to the parties.

CONDUCT AND/OR STEPS THAT LENGTHENED PROCEEDING – RULES 57.01(1)(e) AND 57.01(1)(f)

[87] Rule 57.01(1)(e) permits the court to consider, in exercising its cost discretion, “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding”.

[88] Rule 57.01(1)(f) permits the court to consider whether any step in the proceeding was “improper, vexatious or unnecessary”, or “taken through negligence, mistake or excessive caution”.

[89] In my view, these are not factors that resonate significantly in this case.

[90] Certainly, the trial conducted before me was conducted with organization, efficiency and professional courtesy on display from both sides, (which produced agreement in relation to certain evidence), and its duration generally conformed to the parties’ estimate concerning the probable length of trial.

[91] I already have indicated, for the reasons set forth above, that I do not think the plaintiff’s formal advancement of claims not pursued at trial is something that warrants cost consequences, based on the material before me.

[92] As noted above, the defendant also relied on at least two adjournments of the trial, which were said to have been caused by the plaintiff and/or plaintiff counsel.

[93] I was not provided with a great deal of information or documentation concerning the relevant adjournments and, to some extent, the suggestion that the adjournments were unreasonable or attributable to the plaintiff, or that costs to the plaintiff should be reduced accordingly, was challenged in the plaintiff’s reply submissions.

[94] The first adjournment of the trial, relied upon by the defendant, apparently was necessitated by the lack of availability of a key plaintiff witness; i.e., Mr Miller’s family physician, Dr Malek.

[95] The resulting adjournment was for a relatively brief period of time, (approximately one month), and in my view, the mere fact of the adjournment is not something which should warrant a reduction in the costs to be awarded. In particular, there is nothing to suggest that the plaintiff or his counsel were in any way responsible for the situation necessitating the adjournment.

[96] Moreover, the plaintiff’s reply cost submissions confirmed that no additional preparation time was being sought in connection with that particular adjournment.

[97] As for the second adjournment apparently relied upon by the defendant, it is not clear whether the matter would have been reached for trial in the relevant court sittings, but for plaintiff counsel’s request that the matter not be called until Wednesday of the first week of the two week sittings, (permitting plaintiff counsel to attend a family funeral).

[98] I also note that it was the defence which apparently sought a formal adjournment of the matter on the second occasion, because its counsel would not be available during the second week of the relevant two week sittings. This suggests to me that the defendant accordingly bears some measure of responsibility for the matter not being reached for trial during the sittings in question.

[99] Having regard to the above, I see nothing in the circumstances or material before me to suggest that the plaintiffs engaged in conduct and steps that unnecessarily and significantly lengthened the duration of the proceeding within the meaning of Rules 57.01(1)(e) and 57.01(1)(f).

[100] Notwithstanding such considerations, I already have indicated that, to the extent the plaintiff relies on adjournment-related duplication or redundancy in trial preparation, (and the plaintiff’s written cost submissions emphasize that plaintiff counsel “was required to prepare for trial on three occasions”), I have considerable difficulty understanding how that possibly could have justified the elevated quantum of costs sought by the plaintiff.

REFUSAL TO MAKE APPROPRIATE ADMISSIONS – RULE 57.01(1)(g)

[101] Neither side suggested this was a relevant factor or consideration in the determination of an appropriate cost award in this case.

[102] Nor do I independently think the factor has any relevance here.

ANY OTHER MATTER RELEVANT TO COSTS – RULE 57.01(1)(i)

[103] Matters raised under this broad residual heading of cost considerations included access to justice concerns, (addressed above in conjunction with other matters), and the matter of settlement offers.

[104] The pre-trial offers made by the parties pursuant to Rule 49 already have been described, (in the context of assessing the relevance of my apportionment of liability).

[105] The simple realities are that the plaintiff recovered less than the damages it was seeking by way of settlement, and the defendant has to pay damages whereas its settlement offer contemplated the claim being discontinued without its payment of anything whatsoever.

[106] In the circumstances, the presumptive consequences of Rule 49.10 are not engaged. Neither party made a formal written offer to settle that complies with all requirements of that rule.

[107] In my view, this also is not a case where the settlement offers exchanged by the parties should have a bearing on the appropriate cost award pursuant to:

• the broad residual cost discretion conferred on the court by s.131 of the Courts of Justice Act, supra; and/or

• Rule 49.13 of the Rules of Civil Procedure, which expressly confirms that, despite a number of identified rules, (including Rule 49.10), the court, in exercising its discretion with respect to costs, “may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer”. [Emphasis added.]

[108] The result obtained by the plaintiff arguably came close to its Rule 49 settlement offer, (although not as close as the $5,000 difference between $75,000 and $70,000, when one factors in the subrogated OHIP claim also referred to in the offer).

[109] However, when it comes to settlement offers and the possibility of enhanced cost awards, it generally is important to ensure reasonable predictability for litigants, as well as even-handed application of the general approach to altering prima facie cost entitlements because one side or the other declined to accept a particular settlement proposal. See, for example, Niagara Structural Steel (St Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 1987 4149 (ON CA), 58 O.R. (2d) 773 (C.A.).

[110] In this case, I am not satisfied that the interests of justice require a departure from the normal results that follow when neither side makes an offer triggering the presumptive cost consequences of Rule 49.10.

CONCLUSION REGARDING COST AWARD TO THE PLAINTIFF

[111] It has been said many times, and in many ways, that discretionary cost determinations are far from an exact science.

[112] Again, the overall goal is to award costs in an amount that is fair and reasonable in a particular proceeding – having examined various factors such as those outlined in Rule 57.01.

[113] Having regard to all the circumstances of this particular case, including the various countervailing considerations explored in detail above, I think justice will be served if costs are awarded to the plaintiff on a partial indemnity basis in the all-inclusive amount of $55,000.00, (i.e., inclusive of fees, disbursements and applicable HST).

PREJUDGMENT INTEREST

[114] Pursuant to s.130(1)(a) of the Courts of Justice Act, supra, the court has a discretion, “where it considers it just to do so”, to disallow interest “in respect of the whole or any part of the amount on which interest is payable under s.128”, dealing with awards of prejudgment interest.

[115] Subsection 130(2) of the legislation lists numerous factors to be considered in exercising that discretion, including “the circumstances of the case”, and “the conduct of any party that tended to … lengthen unnecessarily the duration of the proceeding”.

[116] In this case, the defendant effectively has asked that prejudgment interest be disallowed for the additional time it took for the matter to be tried, owing to the adjournments noted above.

[117] I am not inclined to exercise my discretion in the manner suggested.

[118] In that regard, I already have indicated why I think the plaintiff should not be faulted for the relevant adjournments, (although the extent of duplication or redundancy in trial preparation is still a relevant concern).

[119] More generally, however, I think it would be inappropriate to penalize the plaintiff by disallowing prejudgment interest in the manner suggested, even if the plaintiff was somehow to blame for either or both of the adjournments relied upon by the defendant.

[120] In that regard, our appellate courts repeatedly have emphasized that an award of pre-judgment interest is to compensate for the loss of use of money, and generally ought not to be used as a penalty for misconduct. See, for example: Irvington Holdings Ltd. v. Black (1987), 1987 4246 (ON CA), 58 O.R. (2d) 449 (C.A.); Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), affirmed on reconsideration 75 O.R. (2d) 622 at 644; Oakville Storage & Forwarders Ltd. v. Canadian National Railway Co. (1991), 1991 7060 (ON CA), 5 O.R. (3d) 1 (C.A.), leave to appeal to Supreme Court of Canada refused (1992), 6 O.R. (3d) xiii (note).

[121] The prejudgment interest sought by the plaintiff reflects the “time value” of money. If the plaintiff receives more prejudgment interest because of the relevant adjournments, this is counter-balanced by the reality that the defendant was able to retain the funds for longer, and pay the award of damages in more contemporary dollars.

[122] I am not satisfied that there are any special circumstances in this case that justify a departure from the usual practice and calculation of applicable pre-judgment interest.

[123] The plaintiff therefore should be entitled to his claimed pre-judgment interest, fixed at $31,624.66.

FORMAL ORDER

[124] An order shall go accordingly, awarding the plaintiff the aforesaid costs and prejudgment interest.

[125] The defendant apparently took no issue with the form of draft judgment submitted by the plaintiff, apart from what should be inserted in “blanks” left for quantification of prejudgment interest and costs.

[126] I therefore have inserted the appropriate figures in the draft judgment, (with an additional revision to confirm that the cost award is inclusive of HST), and signed the judgment.

“Justice I. F. Leach”

Justice I. F. Leach

DATE: May 5, 2015