CITATION: Asiedu v. Flores, 2015 ONSC 2592
COURT FILE NOS.: CV-12-456348 and CV-12-456348A1
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WINIFRED ASIEDU
Plaintiff
– and –
LUIS DAVID FLORES and RBC GENERAL INSURANCE COMPANY
Defendants
Robert Zigler for the Plaintiff
Michael W. Chadwick for the Defendant Luis David Flores
HEARD: April 20, 2015
ENDORSEMENT
DIAMOND J.:
Introduction and Factual Background
[1] The plaintiff has sued the defendants for general and special damages arising out of a motor vehicle accident which occurred on July 3, 2009. The plaintiff issued her Statement of Claim on June 25, 2012, nearly three years after the accident.
[2] A Statement of Defence was delivered on or about July 4, 2012. Examinations for discovery were completed in early October 2013.
[3] On or about November 4, 2014, the defendant Luis David Flores (“the defendant”) served a Motion Record seeking an order granting summary judgment and dismissing that the plaintiff’s proceeding on the basis that the claim was not commenced within the two year deadline pursuant to the Limitations Act 2002, S.O. 2002 c. 24 (“the Act”).
[4] The plaintiff delivered her responding Motion Record in early February 2015. Factums and books of authorities were subsequently exchanged and filed in accordance with the Rules of Civil Procedure.
[5] On April 16, 2015, which for the purposes of this Endorsement was the eve of this motion, the defendant abandoned his motion for summary judgment. Counsel for the parties then attended before me to argue the sole issue of costs of the defendant’s motion.
[6] The plaintiff now seeks costs of the defendant’s motion payable on a substantial indemnity basis forthwith in the amount of $20,586.09, or in the alternative on a partial indemnity basis forthwith in the amount of $16,433.34.
[7] The defendant submits that no costs of this motion should be awarded, or in the alternative costs on a partial indemnity basis of approximately $3,600.00 should be ordered payable to the plaintiff in any event of the cause.
Analysis – Costs of Abandoned Motions
[8] To begin, a party’s entitlement to costs of an abandoned motion is primarily governed by the provisions of Rule 37.09(3) which states as follows:
Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the Court orders otherwise.
[9] Accordingly, Rule 37.09(3) presumes the plaintiff to be entitled to her costs of the defendant’s abandoned motion. It is thus the defendant who must convince this Court that there are sufficient grounds to depart from the provisions of Rule 37.09(3).
[10] In order to assess whether such sufficient grounds exist, the Court ought to refer to the provisions of Rule 20.06 which inform the Court’s discretion in the disposition of costs of a motion for summary judgment. The previous incarnation of Rule 20.06 (prior to the 2010 amendments) applied where a moving party “obtained no relief”, and granted a successful responding party a prima facie entitlement to claim costs on a substantial indemnity basis unless the bringing of the motion was reasonable.
[11] In contrast, the current version of Rule 20.06 provides as follows:
The Court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis, if,
(a) the party acted unreasonably by making a responding to the motion; or
(b) the party acted in bad faith for the purpose of delay.
[12] As Master Kelly held in Skycharter v. Eaton Corp. (2005) 6 CPC (6th) 376, where a motion for summary judgment is abandoned, the responding party’s entitlement to costs is governed primarily by Rule 37.09(3), but subject to reference to the provisions of Rule 20.06 in the appropriate case. While Master Kelly was dealing with the previous incarnation of Rule 20.06, I share his view. This Court should have resort to the current provisions of Rule 20.06 in determining (a) whether I should “order otherwise” and depart from the provisions of Rule 37.09(3), and (b) in the event costs are to be ordered payable to the plaintiff, whether those costs should be awarded on a partial or substantial indemnity basis.
[13] The onus to prove that costs of the abandoned motion for summary judgment should not be awarded to the plaintiff lies squarely upon the defendant. If the defendant fails in satisfying that onus, as the plaintiff is seeking her costs on a substantial indemnity basis, the onus to prove that the bringing of the motion was “unreasonable, in bath faith or for the purpose of delay” lies in turn upon the plaintiff.
Position of the Parties
[14] The plaintiff takes the position that the defendant’s motion for summary judgment was untenable from the outset, and there were no reasonable grounds or basis to support the bringing of the motion in the first place.
[15] The plaintiff’s reasoning for this submission is essentially three-fold:
As the Supreme Court of Canada held in Pixero v. Haberman 1997 325 (SCC), [1997] 3 S.C.R. 549, the plaintiff’s cause of action could not begin to accrue until the statutory requirement of section 267.5(5) of the Insurance Act had been met. In other words, the plaintiff’s cause of action did not exist until the plaintiff had sustained a “permanent, serious impairment of an important physical, mental, or psychological function”.
As held by Justice Rady in Chan v. Abdo (2013) ONSC 3017 (S.C.J.):
“In practical terms, the question is not whether the plaintiff believes that the injury meets the criteria but whether there is a sufficient body of evidence available to be placed before a judge that, in counsel’s opinion, has a reasonable chance of persuading a judge on the balance of probabilities that such an injury qualifies. When such a body of material had been accumulated, then and only then should the limitation apply.”
- Based upon the voluminous medical records and reports available as at June 15, 2010 (being two years prior to the issuance of the plaintiff’s Statement of Claim), there was no “body of material” which could lead this Court to find on a balance of probabilities that the plaintiff’s injuries met the threshold requirements of section 267.5 of the Insurance Act.
[16] In support of the plaintiff’s position, Mr. Zigler directed me to the independent orthopaedic assessment report of Dr. Duong Nguyen, which the plaintiff submits was the last report obtained and available prior to June 15, 2010. According to Dr. Nguyen’s report, he assessed the plaintiff on April 6, 2010, and his report was delivered in or around mid-May 2010. Within that report, Dr. Nguyen was asked for, inter alia, his opinion on the plaintiff’s impairment being temporary or permanent, and concluded that the plaintiff’s impairment was in fact temporary.
[17] Therefore, on the medical evidence available at the relevant date, the plaintiff contends that there was no objective basis upon which the defendant could have argued that the plaintiff ought to have known that her case met the required threshold, and thus the limitation period could not have begun to run until a later date. On that basis, Mr. Zigler submits the motion could not possibly have succeeded on the record before this Court.
[18] In response, Mr. Chadwick submitted that given the legal (rebuttable) presumption that a limitation period begins to run from the date of the motor vehicle accident, as held by Justice Arrell in Yeda v. Vu (2013) ONSC 4973, a plaintiff must not only appreciate that his/her damages reach a point that they could be considered permanent and serious, but also bear the onus of persuading the Court that (a) the seriousness of his/her injury was not discoverable within the applicable allocation period, and (b) he/she acted with due diligence to discover if a claim existed.
[19] Within Dr. Nguyen’s report, there was a recommendation that the plaintiff be referred to a pain specialist and psychologist/psychiatrist to help her cope with the ongoing pain as well as depressive symptoms. Mr. Chadwick argued that such steps were not undertaken until after two years from the date of delivery of Dr. Nguyen’s report, when the plaintiff obtained a further report of Dr. Igor Wilderman dated December 18, 2014. In his report, Dr. Wilderman opined that the plaintiff had developed a permanent and serious chronic pain disorder preventing her from partaking in daily activity as she did prior to the accident. In particular, Dr. Wilderman stated that in the event soft tissue problems do not resolve within six months, they are considered “permanent after a period of two years, and until that time period has passed the permanency diagnosis cannot be made even in a chronic pain case.”
[20] Dr. Wilderman’s report was delivered as part of the plaintiff’s Responding Motion Record to the defendant’s motion for summary judgment.
[21] Mr. Chadwick further submitted that there was evidence from the plaintiff at her discovery that within six months of the accident, she was told by her acting physiotherapist that “she may have to live with pain on a permanent basis in her lower back”, and this information ought to have caused the plaintiff to pursue further opinions with respect to the permanency of her injuries at that time. In other words, the defendant submits that the limitation period commenced when the plaintiff knew or ought to have known that her injuries could have been considered permanent, and by failing to pursue such a confirmatory opinion, the claim was issued more than two years after that obligation arose.
Decision
[22] I do not find the presence of any reason(s) to depart from the standard provisions of Rule 37.09(3). A motion for summary judgment, especially when brought on the basis of the expiry of a limitation period, is a significant motion that can end a plaintiff’s legal proceeding once and for all.
[23] This was not a motion for summary judgment based upon the merits of this proceeding. The defendant bore the legal onus of establishing that the plaintiff’s claim was not commenced within the applicable limitation period. While I can appreciate the defendant’s argument that waiting nearly three years to issue a Statement of Claim in the face of ongoing pain issues could invoke limitation period concerns, as found by Justice Perell in Farhat v. Monteanu (2015) ONSC 2119 (S.C.J.):
“There is no onus on a plaintiff to prove or show (a) the limitation period was considered on a conscious decision made not to commence an action, (b) that a procedure was put in place to review the conscious decision at some reasonable point in the future, and (c) that a decision was made when additional information was obtained and counsel moved expeditiously.”
[24] Even in the face of the developing jurisprudence since the Supreme Court of Canada’s release of Hryniak v. Mauldin [2014] S.C.C. 7, a motion seeking summary judgment based upon limitation period issues should not be brought lightly and without a sufficient evidentiary foundation to support the relief claimed.
[25] The provisions of Rule 37.09(3) are thus clearly apposite to the defendant’s abandonment of his motion. As a result, the plaintiff ought to be awarded her costs of this motion payable forthwith.
[26] With respect to the plaintiff’s request that her costs be fixed on a substantial indemnity basis, I am not convinced that the defendant acted unreasonably, in bad faith or for the purpose of delaying this proceeding. As stated above, examinations for discovery were concluded more than one year prior to the defendant bringing this motion. The plaintiff’s action is nearly three years old, and with the report of Dr. Wilderman she is presumably now in a position to proceed to trial on the basis of her position that her injuries meet the statutory threshold requirements.
[27] As stated by Justice Archibald in Empire Life Insurance Co. v. Krystal Holdings Inc., [2009] O.J. No. 1095 (S.C.J.), “substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct…or a motion has been brought unreasonably”.
[28] I do not find the presence of bad faith or egregious conduct in this case.
Quantum
[29] As stated, the plaintiff seeks costs on a partial indemnity basis in the amount of $16,433.34 inclusive of HST and disbursements.
[30] The fixing of costs is not a simple mechanical exercise, and the Court must consider the expectations of both the successful and unsuccessful parties in determining a fair and reasonable result. Factors to be considered when exercising the Court’s discretion to award costs include: the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the motion for which costs are being fixed, the complexity of the proceeding, the importance of the issues, and a party’s denial or refusal to admit anything that should have been admitted.
[31] I have reviewed the plaintiff’s Costs Outline and Bill of Costs.
[32] When the plaintiff’s Responding Motion Record was delivered in early February 2015, it contained the report of Dr. Wilderman opining as to the permanency of the plaintiff’s injuries. Apart from the delivery and exchange of factums, no cross-examinations ensued and the factual landscape did not change since the delivery of the plaintiff’s Responding Motion Record.
[33] Based upon Mr. Chadwick’s submissions, I would have thought it incumbent upon the defendant to abandon his motion at a much earlier date than April 15, 2015.
[34] While I understand that Mr. Zigler was retained as agent for the purpose of arguing this motion, some of the fees associated with time spent reviewing the file, including the various medical reports, appears to be slightly duplicated given the fact that all of these reports were likely reviewed for discovery, albeit for a different purpose.
[35] In the circumstances of this case, I order the defendant to pay the plaintiff’s costs of the abandoned motion for summary judgment fixed in the sum of $12,500.00 (inclusive of HST and disbursements) and payable forthwith.
Diamond J.
Released: April 21, 2015
CITATION: Asiedu v. Flores, 2015 ONSC 2592
COURT FILE NOS.: CV-12-456348 and CV-12-456348A1
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WINIFRED ASIEDU
Plaintiff
– and –
LUIS DAVID FLORES and RBC GENERAL INSURANCE COMPANY
Defendants
ENDORSEMENT
Diamond J.
Released: April 21, 2015