Brown v. Baum, 2015 ONSC 3181

COURT FILE NO.: CV-12-455226

DATE: 20150520

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

SUPPLEMENTARY REASONS

[1] Following receipt of my costs endorsement of 22 April 2015, 2015 ONSC 2483, counsel for the plaintiff wrote to the court to advise that his failure to observe the page limit for costs submissions was inadvertent. He requested a reconsideration of my decision not to award costs to either party. Counsel for Dr. Baum referring to the importance of finality, submits that the circumstances do not warrant a reconsideration of the costs issue.

[2] Taking Mr. Barnwell at his word, I have reviewed the balance of his costs submissions. He refers to the impecuniosity of his client, her lack of sophistication and the challenges she has faced prosecuting her claim against vigorous opposition by Dr. Baum.

[3] The plaintiff submits that if the defendant had not brought a motion for summary judgment dismissing the action on the basis of his pleaded limitation defence, she would not have sought summary judgment on the issue of liability. The plaintiff says that she has been trying to move the matter on to adjudication, whether by trial or mediation.

[4] The plaintiff reasons that she was bound to incur unrecoverable costs responding to the defendant’s motion. Having regard to principles of proportionality and the cost effective adjudication of disputes, it seemed to her that faced with the defendant’s motion, it made sense to bring her own summary judgment motion on the basis that the additional time and expense associated with her doing so would be incremental to the costs she was already going to have to incur responding to the defendant’s motion.

[5] The adage that two wrongs do not make a right applies here. While it may be that the plaintiff’s motion for summary judgment was provoked by the motion brought by the defendant, the fact is that she prosecuted a summary judgment motion which was unsuccessful. Her motion failed primarily due to a lack of expert evidence on the duty of disclosure owed to her by Dr. Baum. However, at paragraph 83 of my reasons, 2015 ONSC 849, I also noted that:

…even if the duty of disclosure had been established, the “he said, she said” evidentiary contest would likely have required at the very least some oral evidence.

[6] I did consider whether ordering a mini-trial on the issue of informed consent would be appropriate. I concluded that it would not.

[7] Given the foregoing, I remain of the view that success was divided. Each party brought a summary judgment motion that was dismissed. The fact that the plaintiff’s motion was provoked by the defendant’s motion does not change my assessment. I am, accordingly, not persuaded that I should amend my disposition on costs.

Graeme Mew J.

Date: 20 May 2015