NEWMARKET

COURT FILE NO.: CV-11-103929-00

DATE: 2015-07-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOCELYNE CRANLEY, Plaintiff

AND:

ANTONIO BAGGIERI and ANTONIO NIELI, Defendants

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL: Michael Shannon and Dylan Crosby, for the Plaintiff

Michael O’Brien and Branko Kurpis, for the Defendant

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The defendants brought a motion for summary judgment relating to a motor vehicle accident on a discoverability issue. They were unsuccessful. The facts were unusual which made the motion somewhat complex. I will set them out briefly. The plaintiff’s accident occurred in 2013 when she was a minor. She suffered significant injuries including a head injury and injuries to her left leg which required internal fixation. Surprisingly, within a year, she seemed to have recovered from most of her physical injuries; however, she suffered from depression.

[2] Over several years, she attempted suicide three times. The plaintiff turned 18 in 2007. In 2008, she experienced left knee pain. In 2010, on medical advice, the pins were removed. Prior to 2014, she had two more knee surgeries. Her physicians advised her that she will need a knee replacement at an early age. She consulted counsel early in 2011. Her claim was issued in April, 2011.

[3] Discoverability was the main issue in the motion. There was a significant question as to when the plaintiff ought to have known that her depression and mental health issues together with her left knee issues were accident related. The defendants acted reasonably in bringing the motion. Given the plaintiff’s medical history, she was required to file extensive medical reports and records to defend the motion.

[4] The plaintiff requests $50,166.28 in costs which includes $46,564.36 for fees and $3,601.92 for disbursements. Her costs outline indicates that senior counsel, Mr. Shannon, spent 73 hours on the matter. He attended on the plaintiff’s cross-examination. It appears that he did not prepare any of the materials for the motion. Rather, he edited them. He prepared for the motion and attended it. He made all of the submissions. Erica Towes, called in 2006, spent 68 hours carrying out legal research, drafting the affidavit, a factum and a supplementary factum. Lionel Tupman, called in 2012, spent 36 hours carrying out legal research and drafting an affidavit. Dylan Crosby, called in 2011, spent 25 hours assembling the exhibits to the affidavit, editing the motion documents and preparing for the motion. He also attended the motion.

[5] I find that the costs requested are excessive. It is hard to imagine how Mr. Shannon spent 73 hours on this matter when he did not prepare any of the materials.

[6] No doubt Ms. Toews was required to spend a considerable amount of time drafting the materials. Nevertheless, her legal research could have been performed by Mr. Tupman who was called six years later than MS. Towes. The 36 hours spent by Mr. Tupman on legal research is excessive. Mr. Crosby edited the motion materials which would have relieved Mr. Shannon from some of this work. He was not required to prepare for and attend the motion. He did not make submissions.

[7] The partial indemnity rates claimed, $350 for Mr. Shannon, $100 for Ms. Toews, and $133 for both Mr. Tupman and Mr. Crosby are generally reasonable. It is curious that a higher rate is claimed for Mr. Tupman and Mr. Cosby in contrast to Ms. Towes when she has 6 years more experience in comparison to them.

[8] The disbursements of $3,601.92 which includes HST, are reasonable except for the fact that no fee is required for filing a responding record. The disbursements claimed are reduced by $143.51.

[9] As noted above, the facts in this matter made the motion somewhat complex. This issue was very important to both parties. The validity of the plaintiff’s claim was under attack. Had the defendants been successful, her action would have been dismissed.

[10] The court must consider the principle of indemnity when awarding costs. The plaintiff refers to Tri-S Investments Ltd. v. Vong, [1991] O.J. No. 2292 at p. 8 where the court stated that, “I do not view it to be the court’s function when fixing costs to second-guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.” This decision is dated. I am required to follow the principles set out by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004]O.J. No. 2634. The court stated that the discretion to fix costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43. In addition, Rule 57.01 of the Rules of Civil Procedure sets out factors that the court should consider in assessing and fixing costs. While those factors provide guidance, ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. The expectation of the parties is a relevant factor when applying these principles.

[11] The defendants would have expected the plaintiff to present a vigorous defence to the motion, considering that the existence of her action was at stake. The motion was lengthy. Nevertheless, the defendants would not have expected to pay $46,564.36 for fees on a partial indemnity basis if they were unsuccessful. Taking into account the complexity of the motion, its importance to the parties and the principles of indemnity, fairness and reasonableness, I find that a fair and reasonable amount of costs in this matter is $29,000 all-inclusive which the defendants shall pay to the plaintiff forthwith.

VALLEE J.

Date: July 28, 2015