Brown v. Wahl costs 2015 ONSC 3243
COURT FILE NO.: CV-14-496964
DATE: 20150521
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: LOUISE SUZANNE BROWN, Plaintiff
AND:
JOHN WAHL and MAURIZIO CASCIATO, Defendants
BEFORE: Stinson J.
COUNSEL: Mark Arnold and Joyce Weinman, for the plaintiff, responding party
Valerie Wise and Heather Hughes, for the defendants, moving parties
HEARD at Toronto: by written submissions
ENDORSEMENT AS TO COSTS
[1] In my decision released February 27, 2015, I granted the defendants’ motions for summary judgment and dismissed the plaintiff’s action. The parties have made subsequent written submissions as to costs. This endorsement arises from those submissions.
Liability for costs
[2] The motions were successful and the action was dismissed. As the unsuccessful party, the plaintiff is liable to pay costs to the successful defendants.
Scale of costs
[3] The defendants seek costs on a partial indemnity basis only. I agree with that position.
Quantum of costs
[4] In their written submission the defendants seek a costs award in relation to the motion and their successful defence of the action in the all-inclusive sum of $25,000. According to the bill of costs submitted by counsel, the actual cost to the client for the services of defence counsel was $64,033.47. The partial indemnity costs calculated by defence counsel are $39,784.09. Both amounts include disbursements and applicable taxes. The request for $25,000, therefore, reflects a significant reduction from the actual costs incurred.
[5] The position of plaintiff is that the amount sought is excessive and that a proportionate and reasonable cost award against her should be no more than $15,000. Plaintiff submits that the time spent by defence counsel was “vastly excessive”.
[6] In Andersen v. St. Jude Medical, Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557, the Divisional Court examined the jurisprudence and summarized the principles that should govern the exercise of the court’s discretion when fixing costs, at paragraph 22 [case citations omitted]:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1) ….
A consideration of experience, rates charged and hours spent (formerly a costs grid calculation) is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant ….
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results" ….
The court should seek to balance the indemnity principle with the fundamental objective of access to justice ….
A discretionary decision of a case-management judge in a class proceeding is entitled to a very high level of deference ….
[7] In assessing the correct amount to award for costs, the overriding principle must be reasonableness.
[8] Dealing with the specific principles recited in rule 57.01(1), I note as follows:
(0.a) The principle of indemnity – the fees claimed are based on an arithmetical calculation of hours spent and hourly rates. Performing that calculation on a partial indemnity basis resulted in a total costs claim of more than $39,000 (including disbursements). As noted, defendants have limited their request to $25,000. The principal submission of the plaintiff is that too much time was spent. In this regard, it is worth noting that, despite my invitation to do so, plaintiff’s counsel did not submit the bill of costs that would have submitted had the plaintiff prevailed on the motion. I was informed, however, that in advance of the motion the plaintiff offered to settle it on the basis it would be dismissed and she would be paid either $19,000 all inclusive or $23,000 all inclusive. I am further told these offers were calculated on a partial indemnity basis taking into account the factors provided for under Rule 57. In light of those proposals – which were made before the motion came to be argued - I do not consider the defendant’s request for the all-inclusive sum of $25,000 for costs in relation to the motion and the action to be disproportionate. The amount of work each side would have had to carry out to prepare for and argue the motion would not be dissimilar. I thus consider that the principle of indemnity would support the costs claim of the defendants, especially in light of the reduction already applied.
(0.b) The reasonable expectations of the paying party – in my view, the costs sought are within the range that a reasonable person could expect to pay in a dental malpractice action of this sort. By commencing the proceeding – or, more accurately, the proceedings – the plaintiff had to know that she would cause the defendants to take appropriate steps to respond by retaining counsel and incurring the costs necessary to defend.
(a) The amount claimed and recovered – the plaintiff sought substantial damages and recovered nothing. Again, having regard to the magnitude of the claims, the costs award sought is, in my view, proportionate.
(b) Apportionment of liability – on the key issue of the expiry of the limitation period, the defendants prevailed. This supports their claim for costs.
(c) Complexity – the liability issue and, in particular, the facts surrounding the question of when the limitation period began to run, were moderately complex.
(d) Importance of the issues – this case was important to both sides and was vigorously pursued, resulting in a vigorous defence.
(e), (f) and (g) - conduct of the parties – both sides must accept some responsibility for the amount of time spent.
[9] None of the other rule 57.01(1) factors is particularly germane to this case.
[10] The only other consideration concerns the “fundamental objective” of access to justice. The plaintiff is of modest means. Quite apart from legal costs, she faces ongoing expenses arising from trying to remedy her dental problems, for which she previously paid the defendants a considerable sum of money. That reality, and the magnitude of the costs award sought, support a modest reduction of the costs sought by the defendants.
[11] Taking into account all the foregoing considerations, I would assess the total sum payable by the plaintiff to the defendants for costs to $20,000, all inclusive. I order the plaintiff to pay that sum to the defendants.
Stinson J.
Date: May 21, 2015