SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-450035
DATE: 20150804

LINDA FLETCHER

Plaintiff

-AND-

JULIANA MATYCHUK, HOWARD BIRCH, JANICE E. MITTON and DR. RICHARD LEVY

Defendants

BEFORE: F.L. Myers, J.

COUNSEL:
Richard E. Anka, Q.C. for the plaintiff
Kelly C. Tranquilli for the defendant Dr. Richard Levy
Ellen Brohm for the defendant Howard Birch
Susan Keenan for the Minister of Veterans Affairs and
The Minister of National Defence
Deborah Berlach for the defendant Janice E. Mitton
John V. Kranjc for the defendant Juliana Matychuk

BEFORE: F.L. Myers J.

READ: August 4, 2015

endorsement

[1] By amended endorsement dated June 25, 2015, reported at 2015 ONSC 4147, I dismissed the plaintiff’s motion for production of documents from the defendant Dr. Richard Levy in connection with a number of motions for summary judgment that I am case managing through Civil Practice Court. The motion was heard at a Case Conference ordered under Rule 50.13.

[2] The defendant Dr. Levy seeks costs of the motion on a substantial indemnity basis in the amount of just over $19,000. The defendant Matychuk seeks costs of $3,000.

[3] The motion sought no relief against the defendant Matychuk. However, she is the principal target of the claim. Her involvement with Dr. Levy was among the factual grounds relied upon by the plaintiff to make the allegations that formed the basis of the motion. It was reasonable for Ms Matychuk to send counsel to the motion to make brief argument and to protect her position. However, Ms Matychuk’s counsel prepared no material. His tariff time is limited to the review of the motion material of others and counsel fee for a brief attendance. The defendant Matychuk did not submit a Costs Outline despite the requirement set out in Rule 57.01(6) and in para. 24 of my endorsement. I agree with Kiteley J. in para. 12 of Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, et al., 2014 ONSC 4715 in which she explained that there should be some consequence to the failure of a party to comply with Rule 57.01(6). Absent required details of charges properly within the tariffs, I am not prepared to speculate on the time spent by counsel beyond the hour needed to read the material and the attendance for a part of a day. Accordingly, the plaintiff will pay costs to the defendant Matychuk fixed at $500 inclusive of fees, disbursements, and taxes forthwith.

[4] Dr, Levy seeks costs on a substantial indemnity basis for a number of reasons. The principal reasons are the plaintiff made allegations of serious wrongdoing against Dr. Levy and his counsel that required a very detailed response and argument. I rejected the allegations in my endorsement.

[5] First, there was no evidence that Dr. Levy altered any document or file. The allegation was made based on Dr. Levy having only recently found a second file that he kept concerning the plaintiff’s father who is the subject of the action. The file was not filed under the father’s name. Rather it was filed under the plaintiff’s name because the plaintiff approached Dr. Levy concerning her father. It was Dr. Levy’s evidence that he opened a separate file in order to protect the plaintiff’s confidentiality. Mr. Anka relied on the recently delivery of these documents as a basis to infer that Dr. Levy may have tampered with his files. Nothing in the recent delivery of documents was probative or linked in any way to an allegation of tortious or criminal alteration or editing of evidence by Dr. Levy.

[6] There was an earlier motion for production of Dr. Levy’s documents. Master Abrams refused the plaintiff’s request for production of documents from Dr. Levy’s file dated prior to 2004. However, she left it open to the plaintiff to renew her request if anything produced by Dr. Levy subsequent to 2004, “makes relevant…the notes and records from an earlier period.” On this motion, the plaintiff and her spouse swore that Dr. Levy’s counsel who attended before Master Abrams represented to the Master that Dr. Levy had no documents in his file before 2004. Mr. Anka submitted in court that he was not giving evidence but then proceeded to express his unsworn recollection that agreed with his client’s affidavit. Dr. Levy has confirmed that there are documents in his file that pre-date 2004. Counsel for the plaintiff argued before me that the misrepresentation by counsel is a basis to now order disclosure of the doctor’s pre-2004 documents. I rejected that argument.

[7] It makes no sense to say that Dr. Levy’s lawyer (who has since left the firm) misled the Master, by telling her that there were no pre-2004 documents, when the Master expressly preserved the plaintiff’s right to return to court to seek production of pre-2004 documents. The Master was certainly not misled if counsel actually said that there were no pre-2004 documents (which I doubt). She protected the plaintiff’s right to seek those very documents. It is clear in her ruling that she knew there were documents in the doctor’s file from before 2004. She held them to be irrelevant to the issues in the action. I do not accept that the Master was misled by counsel intentionally or otherwise.

[8] An allegation that the lawyer for the opponent deliberately misled the court is very serious. It implicates the lawyer’s honesty and honour. Lawyers’ reputations are perhaps their most precious attribute. An allegation that a litigator intentionally misled a judicial officer threatens his or her career. It also threatens the law firm that employed, taught, and was responsible for the lawyer’s conduct as well as the integrity of the partner with principal carriage of the case.

[9] The allegation that the plaintiff is pursuing on this motion is that the defendant Mitton was negligent in her capacity assessment of the deceased in 2009 because she did not obtain old records about the deceased including records of his shock therapy in 1969 or 1970. While Dr. Levy has files from before 2004, none, he says, involve the shock therapy. However, the plaintiff obtained an order from Master Abrams for production of documents by the hospital at which the shock therapy is said to have taken place. For reasons that were not explained, the plaintiff did not have that order signed and entered for two years after Master Abrams made the order. Rather than trying to get documents from their custodian under an order entitling her to do so, the plaintiff chose instead to make nasty allegations against Dr. Levy and his lawyer. This raises an issue as to whether the plaintiff actually wants the documents or whether this motion was brought for another purpose.

[10] Making scurrilous allegations against parties and counsel that are not sustained can subject the unsuccessful party to punitive costs. Baksh v. Sun Media (Toronto) Corp. (2003), 2003 64288 (ON SC), 63 O.R. (3d) 51 (Master); Standard Life Assurance Co. v. Elliot (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.); DiBattista v. Wawanesa Mutual Insurance Co. (2005), 2005 41985 (ON SC), 78 O.R. (3d) 445 (S.C.J.) aff’d 2006 33544 (ON CA), 83 O.R. (3d) 302 (C.A.). Moreover, Dr. Levy and his counsel could only be expected to have responded to such allegations fully, completely, and resolutely. Under Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, in my view, a party who makes allegations of impropriety that are not sustained ought reasonably to expect to pay substantial indemnity costs and that the successful parties will leave no stone unturned to defend their reputations.

[11] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher at paras. 26 and 37.

[12] Dr. Levy seeks costs of $19,053.78 at 85% of docketed rates which is slightly less than 1.5 times his calculation of partial indemnity costs calculated at 65%. Costs assessment after a motion is not a precise math problem however. I have reviewed the Costs Outline of Dr. Levy. In my view, the rates and hours spent appear quite reasonable. Mr. Anka noted that he was alone and argued that two counsel for Dr. Levy was overkill. But Dr. Levy won the motion. I am not sure that there is a principled basis to compare the litigation effort and support marshalled by the successful party to the effort of the party whose efforts were insufficient. Moreover, it is easier to make unfounded allegations than it is to painstakingly set out the years of history to prove that the allegations are not correct.

[13] It is just common sense that forty year old documents are not likely to be very relevant to a capacity assessment at the best of times. If those documents really mattered, the plaintiff would have tried long before now to obtain them from the hospital under Master Abrams’ order. Moreover, even if the allegations made against Dr. Levy and his counsel were true, they still did not show that the plaintiff met Master Abrams’ test that post-2004 documents made the pre-2004 documents in Dr. Levy’s file relevant. In my view this motion needlessly ran up costs based on unsubstantiated, scurrilous allegations made without basis in fact. The defendant will therefore pay forthwith to Dr. Levy his costs on a substantial indemnity basis of $19,053.78 inclusive of fees, disbursements, and taxes.

F.L. Myers J.

Date: August 4, 2015.