Whitfield v. Whitfield, 2015 ONSC 3422
PETERBOROUGH COURT FILE NO.: CV-241027
DATE: 20150528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. AGNES JANE WHITFIELD
Plaintiff/Defendant
By Counterclaim
– and –
BRYAN WHITFIELD
Defendant/Plaintiff
By Counterclaim
Self-represented
J. Lanctot and C. Blastorah, for the Defendant/Plaintiff by Counterclaim
HEARD: May 19, 2015
COSTS/PRE-JUDGMENT INTEREST
McISAAC J.
[1] The plaintiff was overwhelmingly successful in her civil suit alleging a marathon of sexual abuse at the hands of her brother: see 2014 ONSC 2745. She received an award of $250,000 for aggravated general damages, $50,000 for punitive damages and $54,200 special damages for future therapeutic care to address her psychological devastation triggered by this abuse. Although she had various counsel represent her in the pre-trial stages of this litigation, the plaintiff acted on her own behalf at trial which lasted some five weeks spread over one calendar year. I have been asked by the parties to settle the plaintiff’s costs claims as well as the starting date for pre-judgment interest.
I- COSTS
[2] The plaintiff seeks a total award of $150,680.52 for fees on the partial indemnity scale along with disbursements. The defendant contests the following particular claims:
(1) The claim for fees and disbursements allegedly paid to the firm of Galldin Liew LLP for a change of venue motion heard in 2010;
(2) the claim for fees as a self-represented litigant; and
(3) the disbursement for the expert witness, Dr. Johanne Bergeron.
(i) Galldin Liew LLP
[3] Dr. Whitfield seeks reimbursement in the amount of $10,758.26 for partial indemnity fees plus $1,792.97 for disbursements that she claims were paid to this Ottawa law firm which was retained while she undertook a joint appointment to the University of Ottawa and Carleton University beginning in 2009. I have reviewed the dockets which support this claim and note that many of the hours expended relate to the review of previous counsels’ files. I do not find this task to be unusual given the complexity of this litigation and the number of years over which the allegations spanned.
[4] The defendant’s main objection relates to the fact that this law firm sued the plaintiff over part of this account in Small Claims Court in Ottawa. It is suggested that this fact may put into question this entire account. Dr. Whitfield maintains that these accounts were delivered and that she has paid them all in full.
[5] I remind myself that the process to be applied for fixing costs should be the “simplest, lease expensive and most expeditious” possible in the circumstances: see R. 57.01(7). Applying that test to this specific issue, the plaintiff has satisfied me of the legitimacy of this claim. It will be allowed.
(ii) Self-representation fees
[6] As one can see from the success achieved by her, the plaintiff did not only an admirable but, I would venture to say, a masterful job in representing herself at trial. Her preparation was assiduous and her presentation was persuasive. She quite reasonably expects that those attributes should be reflected in a handsome counsel fee. However, as Oliver Wendall Holmes instructs us, the law is not always logical. Although there are cases that support the plaintiff on this issue, Mr. Lanctot has persuaded me that the weight of the jurisprudence is substantially against this part of her claim which amounts to $55,731.60 on a partial indemnity scale for legal fees: see Fortunado v. Afandy, 2013 ONSC 5654, a judgment of D.G. Stinson, J. at paras. 4 – 5. On the other hand, a self-represented litigant is entitled to receive a “moderate” or “reasonable” allowance for the time devoted to preparing and presenting the case: see Fong v. Chan (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.) at para. 26.
[7] Although there is no evidence before me suggesting that Dr. Whitfield lost any of her approximately $165,000 annual salary due to her involvement in this case, I am satisfied it must have impacted on her ability to access research grants and limited her availability to participate in scholarly and professional academic activities. Although this exercise is by nature a notional one, I find that an appropriate award to reflect these efforts should be fixed in the amount of $5,000. I have excluded any consideration of the part of the plaintiff’s claim associated with the trial itself as Dr. Whitfield would, in all likelihood, have been present to assist her counsel, if retained. However, I have assessed this part of the award on a substantial indemnity basis reflecting a total claim of $35,250: see Plaintiff’s Costs’ Submissions, v.1, Tab 1, p. 8. I agree with the plaintiff that the “spirit” of the Victims Bill of Rights, 1995, S.O. 1995, c. 6, s. 4(6) should influence this aspect of the award herein. That provision which only applies in the case of defendants who have been found criminally responsible for the delict alleged, provides for a presumptive award on the higher scale of costs.
(iii) Dr. Bergeron
[8] This witness was retained, prepared a report and testified as an expert in relation to handwriting comparison. A disbursement award totaling $3,075 is sought by the plaintiff. Despite the various attempts on the part of Dr. Whitfield to explain the relevance of this evidence to the issues I was tasked to consider in this litigation, I fail to see what utility it provided to the process. I suspect that the persecution complex that now forms part of her personality may have motivated this exercise. I am persuaded that the defendant should not be expected to compensate for it: see R. 57.01(f)(i).
[9] In conclusion, I award the plaintiff her costs in the fixed amount of $97,000 inclusive of disbursements. HST will be payable on all of that amount less the nominal $5,000 counsel fee awarded to Dr. Whitfield as a self-represented litigant. This amount represents the following calculations: $50,000 partial indemnity pre-trial legal fees; $5,000 substantial indemnity counsel fee awarded to the plaintiff for the trial herein; total disbursements in the amount of $42,000.
II – Pre-Judgment Interest
[10] The parties are agreed that the rate of five percent applies to this award: see R. 53.10. However, they part company as to the appropriate start date. The plaintiff suggests it should begin on or about the time that she began to experience a recovered memory of the abuse herein, that is, the summer of 2001. The defendant suggests the date of the issuance of the Statement of Claim, that is, December 2002. I am satisfied the plaintiff’s position on this issue must prevail: see R. v (J.) v. W. (E.S.) (2001) 2001 28253 (ON SC), 52 O.R. (3d) 353 (S.C.J.). In that case, Nordheimer, J. founding persuasive the following excerpt from M.(K.) v. M.(H.) 1992 31 (SCC), [1992] 3 S.C.R. 6 at p. 35 where LaForest, J. observed:
It is the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes.
[11] Accordingly, pre-judgment interest will be calculated at five percent from August 1, 2001 on all of the award herein except for the successful claim for special damages in the amount of $54,200. That part of the award will, however, be reflected in the calculation for post-judgment interest.
McISAAC J.
Released: May 28, 2015