SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-379559

DATE: 20150929

RE:

MAXINE MOODIE-MERITT, PERSONALLY and as
SOLE EXECUTRIX and TRUSTEE OF THE ESTATE OF
BERTRAM MOODIE, DECEASED

Plaintiff

AND:

BRIAN McKEE and TORONTO TRANSIT COMMISSION

Defendants

BEFORE: Lederer J.

COUNSEL:
Norman Groot, for the Plaintiff, Maxine Moodie-Meritt
Tamara Broder, for the Defendant, Toronto Transit Commission
Brian A. Pickard, for Victor Opara

HEARD: September 15, 2015

COSTS ENDORSEMENT

[1] This is a motion for costs.

[2] It arises from a nine-day trial before a jury that began on October 14, 2014.

[3] The trial concerned a motor vehicle accident that took place on May 30, 2007. The accident was a collision between an automobile driven by Bertram Moodie and a bus owned by the defendant, Toronto Transit Commission, and driven by the defendant, Brian McKee. The defendants admitted liability. The only issue was the extent of any damages attributable to the accident and their value.

[4] At the time of the accident, Bertram Moodie was 76 years old. The action was commenced by a Statement of Claim issued on May 27, 2009. Victor Opara was retained by Bertram Moodie to take over carriage of the action on November 2, 2010.

[5] During July 2013, Bertram Moodie suffered a stroke.

[6] On October 28, 2013, Madam Justice Low ordered that the trial was to begin on November 14, 2013. The judge ordered that certain documents be served, on behalf of the plaintiff, prior to that date. On November 12, 2013, counsel for the Toronto Transit Commission inquired as to whether or not Bertram Moodie had the capacity necessary to instruct counsel and proceed to trial. The Toronto Transit Commission advised that, at least in its view, if Bertram Moodie intended to go to trial, he needed a Litigation Guardian. On November 14, 2013, Madam Justice Frank ordered that the trial be adjourned. Counsel for the plaintiff (Victor Opara) had not complied with the order of Madam Justice Low. Madam Justice Frank ordered Victor Opara to obtain a capacity report for Bertram Moodie and set March 17, 2014 as the new date for trial.

[7] On December 9, 2013, a capacity assessor deemed Bertram Moodie to lack the capacity to instruct counsel. On December 15, 2013, Bertram Moodie died. He was 83 years old. As a result, a pre-trial held on February 25, 2014 was adjourned. The trial did not proceed on March 17, 2014. On March 16, 2014, a Certificate of Appointment of Estate Trustee with a Will was issued to Maxine Moodie-Meritt, the daughter of Bertram Moodie.

[8] On June 17, 2014, Victor Opara provided the Toronto Transit Commission with a draft Amended Statement of Claim. It included a Family Law Act claim made on behalf of Maxine Moodie-Meritt and alleged that the stroke suffered by Bertram Moodie in July 2013 resulted from the accident which had occurred six years earlier. The Statement of Claim was “formally amended” at trial.

[9] On September 16, 2014, a further (the third) pre-trial was held. Madam Justice Chiappetta, among other things, found that further pre-trials would not assist the case. The trial proceeded on October 14, 2014. The jury returned its verdict on October 24, 2014. The first of the 11 questions it was requested to answer was:

Has the Plaintiff proven, on a balance of probabilities, that the accident on May 30, 2007 caused or contributed to any injury to Bertram Moodie, deceased? Answer Yes or No.

[10] The jury answered this question: “No”. There was no need to answer any further questions.

[11] As the successful party, the Toronto Transit Commission seeks its costs. It requested costs in the amount of (total disbursements $31,220.48 + total fees $103,315.90) $134,536.38, inclusive of H.S.T.

[12] There are five questions that must be answered.

Question 1: Should the Toronto Transit Commission be awarded costs?

[13] There is no reason why the Toronto Transit Commission, as the successful party, should not be awarded costs. This case is not like Chen v. Toronto Transit Commission (Costs) 2014 ONSC 6673. In that case, a four-year-old child was struck by a street car and seriously injured. At trial, a finding was made that, accounting for the time between when the operator of the street car first saw the child and when the child was hit, the speed at which the child was running and the direction he was going, the accident could not have been avoided. There was no liability found against the Toronto Transit Commission or its operator. They were the successful parties. A four-year-old child could not be expected to understand the risk of running on to the road and could not be negligent. No one was at fault. The Toronto Transit Commission acknowledged that the action had been well-tried. No costs were awarded.

[14] Here, there was no child. The parties were adults and should be expected to understand the risks taken, the nature of fault and how it could be or might be expected to be assessed. I repeat, liability was admitted. I observe that what a jury will decide is up to it and the wisdom it may bring to any determination is not always readily apparent to the judge or counsel. Having said this, in this case, it was suggested that what can safely be called a minor collision was the cause of the stroke and the ensuing death of Bertram Moodie, both of which occurred six years after the accident. Bertram Moodie was an old man when he suffered the stroke and when he died. It does not take much to see that the proposition being made could be problematic. There was some evidence, but not much, to support the idea (Dr. Joseph Wong) and significant testimony that countered it (Dr. Erin Boynton).

[15] In the factum filed on behalf of Maxine Moodie-Meritt, it was submitted that there should be no costs awarded to the Toronto Transit Commission because “there was no inappropriate conduct on her part”.[^1] This is not a “compelling reason why the general rule [costs follow the event] should be departed from.”[^2] To the contrary, as has been noted before, an order to pay costs on a partial indemnity scale is not a punishment for inappropriate conduct. It is an order made in furtherance of various purposes in the administration of justice.[^3]

[16] After some discussion in court, the parties agreed that, as the successful party, the Toronto Transit Commission should be awarded its costs.

[17] A costs award will be made in favour of the Toronto Transit Commission.

Question 2: On what scale of costs should such an award be made?

[18] The Toronto Transit Commission seeks costs on a partial indemnity scale. There being no request that costs be awarded on an elevated scale (substantial indemnity), there was no basis and no reason to make such an award.

[19] Again, after some discussion in court, the parties agreed that the costs of the Toronto Transit Commission should be on a partial indemnity scale.

[20] Costs will be awarded on a partial indemnity scale.

Question 3: What quantum of costs should be awarded?

[21] There was a suggestion that the costs sought were too high. In particular, the factum filed on behalf of Maxine Moodie-Meritt proposed that the hourly rate asserted for Chad Townsend the principal counsel for the Toronto Transit Commission, and the only one whose attendance at trial is accounted for in the costs applied for, was too high.[^4]

[22] The Bill of Costs suggests an hourly rate for Chad Townsend of $250.00 on a partial indemnity scale and $325.00 on a substantial indemnity scale. I do not consider these numbers to be out of line. To the contrary, the figures proposed by counsel for the plaintiffs – $135.00 for partial indemnity and $275 for substantial indemnity – are low. Chad Townsend may not yet have risen to the heights of senior counsel but he is not a novice. He was called to the bar in 2003 (twelve years ago). In this case, he had carriage of the file. Having said this, the costs claimed are too high. To begin with, from the perspective of the Toronto Transit Commission, this was not a difficult trial. It only concerned damages. Again, there was very little evidence to support the fundamental proposition that the stroke and death of Bertram Moodie were caused by the accident. There was no evidence to support any claim for special damages. As Bertram Moodie had died, there was no need for evidence as to future care costs (I shall have more to say about these two factors later in this endorsement). The evidence of loss of income was, at best, speculative. Bertram Moodie had been retired since 1996 (eleven years before the accident). It was suggested that he was planning to or might have gone to work part-time (ten hours per week) for his brother at an auto body shop. The brother was not called to give evidence nor was anyone else associated with the supposed prospective employer. Any claim for general damages would have to overcome the implications of the age of Bertram Moodie. As for the claim under the Family Law Act, the question was reduced to a claim for loss of care and guidance. How much care and guidance can an infirmed man provide to his daughter and for how long?

[23] Despite all of this, the Toronto Transit Commission claims costs for Chad Townsend for 110 hours over eleven days of trial (October 14-16, 18, 19, 20-25). This is ten hours for each of those eleven days. I pause to observe that if, as I believe, the jury verdict was given on October 24, 2014, it is difficult to understand how time for the trial could have been taken up on October 25, 2014. October 25, 2014 was a Saturday. Given the amount of time taken up by appearing in court and the time already claimed for preparation by Chad Townsend and others, the amount claimed is too much. I am not prepared to assess costs of preparation for Chad Townsend, two other lawyers (Tamara Broder and Steven Sargent) and a clerk (Dawn Lewis).

[24] Over the course of the running of the file, $71,075 is accounted for by the time of Chad Townsend. This includes $27,500 for the trial.

[25] Over the same period, $11,900 accounted for the time of Tamara Broder. This includes $6,240 for the days the trial was taking place, albeit not for any time she appeared in court.

[26] Although no dates are provided, the time of Steven Sargent is valued at $4,375.00, essentially for research, review of productions and preparation of an affidavit and factum.

[27] Finally, the time of Dawn Lewis represents $4,800.

[28] In the circumstances, I reduce the fees being requested by $21,540. I base this on:

• a reduction in the time accounted for by Chad Townsend at trial by two hours a day (2 hours X 11 days X $250) $5,500;

• the withdrawal of the time spent by Tamara Broder during the days of the trial (one counsel is all the plaintiff can reasonably have expected to pay for), being $6,240;

• the withdrawal of the charges for Dawn Lewis ($4,800); and,

• a further reduction of $5,000 from the charges for the time of Chad Townsend associated with the period from the commencement of the action to the beginning of the trial.

[29] I see no reason to question any of the disbursements being claimed.

[30] After some discussion, the parties accepted this approach and the value of the costs that result from it.

[31] Accordingly, I award costs to the Toronto Transit Commission in the amount of ($91,430 minus $21,540) $69,890, for fees and disbursements of $31,220.48, as well as any H.S.T. not accounted for in these numbers.

Question 4: Should Maxine Moodie-Meritt be held personally liable for any of the costs awarded to the Toronto Transit Commission?

[32] The Toronto Transit Commission seeks to have Maxine Moodie-Meritt pay its costs in her personal capacity. In general, it took the view that the action was her action and not that of her father. She was directly involved from an early stage. She was present when her father was examined-for-discovery and at the mediation that was carried out. I do not agree with this assessment. She may have been present, but that does not mean she controlled the progress of the action. To the contrary, while she was given a general power of attorney by her father on January 17, 2012, Maxine Moodie-Meritt never relied on it. After the death of her father (on December 15, 2013), she applied and, on March 26, 2014, was issued a Certificate of Appointment of Estate Trustee with a Will. This was after a date for the trial had been set by Madam Justice Low, after that date had been adjourned by Madam Justice Frank and after the date for trial she had set (March 17, 2014) had passed. It was less than seven months before the trial began on October 14, 2014. In other words, by the time Maxine Moodie-Meritt became responsible for the carriage of the case, it was ready for trial. This is not a situation where a trustee began an action and prosecuted it in his or her own interest as a beneficiary under the will. In this circumstance, Maxine Moodie-Meritt was doing nothing more than completing an action commenced and continued by her father over a six-year-period. When she was examined, she indicated that her intention, if successful, was to pay off some or all of his debts.

[33] Late in the proceedings, the claim under the Family Law Act in the name of Maxine Moodie-Meritt was added. There was reference to the issue of whether this was done by counsel without the consent, or over the objection, of Maxine Moodie-Meritt. I make no finding on this aspect of the dispute. If anything, it is an issue that may be relevant to any assessment of any account that may be rendered by Victor Opara. For the purposes of this endorsement, I observe only that this claim was derivative of the main claim made on behalf of Bertram Moodie and subsequently completed on behalf of his estate. If the claim of Bertram Moodie did not succeed, no Family Law Act claim made by his daughter could succeed. During the trial, there was reference to the allegation that, as a result of the time taken up looking after her father, Maxine Moodie-Meritt lost her job. It transpired that she was proceeding separately in respect of that issue. All that remained was the claim for loss of care and guidance to which I have already referred.

[34] We want people to step forward and take up the responsibility of being estate trustees and litigation guardians. It may be that there will be circumstances where people in these roles will be required to pay costs personally rather than have the money come from the estate. This would be so where the estate trustee acts in his or her own interest[^5] or commences an action that is without merit.[^6] This is not the case where an estate trustee carries an action, started by the deceased long ago, to completion[^7] in the hope of being able to pay debts of the estate. If an estate trustee, in taking up those responsibilities, risked becoming personally liable for the costs of an action started by the deceased person years in the past, it is unlikely that many would be prepared to take on the role.[^8]

[35] In the circumstances, I will not order that Maxine Moodie-Meritt is liable, in her personal capacity, for the payment of any of the costs awarded to the Toronto Transit Commission. I point out, as did counsel for Maxine Moodie-Meritt, that in the affidavit relied on in support of her application to be appointed estate trustee, Maxine Moodie-Meritt acknowledged that the estate was without funds. It was open to the Toronto Transit Commission to seek security for costs if it thought this was called for.[^9] It did not do so.

Question 5: Should Victor Opara as counsel be held personally liable for any of the costs awarded to the Toronto Transit Commission?

[36] Rule 57.07 (1)[^10] raises the prospect of costs being sought against counsel personally. On behalf of Maxine Moodie-Meritt, it was submitted that Victor Opara should be required to pay any award of costs made against her as his client. The rule allows for this.[^11] As it is, no award of costs is being made against Maxine Moodie-Meritt. During the submissions made, counsel for Maxine Moodie-Meritt was asked and he confirmed that her interest in such an order did not extend past covering her own prospective liability to pay any of the costs of the Toronto Transit Commission. For its part, the Toronto Transit Commission requested that an award for costs should be made against Victor Opara personally, but suggested that such an award be limited to an amount from $5,000 to $10,000. I point out, as well, that the court is authorized to make such an award “on its own initiative”.[^12]

[37] By their nature and as a result of the case law that has developed, such orders will be rare.[^13] As pointed out in the factum filed on behalf of Maxine Moodie-Meritt, there is a two-step process or inquiry as to whether costs should be awarded against a solicitor personally:

(1) Whether the lawyer’s conduct falls within Rule 57.07(1) in the sense of causing costs to be incurred unnecessarily;

and

(2) To consider as a matter of discretion (and applying the extreme caution principle), whether in the circumstances of the particular case, the imposition of costs against the lawyer is personally warranted.[^14]

[38] The first part of the test requires a holistic examination of a lawyer’s conduct. Having said this, a general observation about the conduct of the litigation is not sufficient to identify conduct that contributed to delay and unnecessary cost. The court is obliged to identify and consider specific incidents of conduct to determine whether the conduct caused unreasonable costs to be incurred and, thus, fall within the rule.[^15]

[39] The second part of the test is discretionary. It is, as I have already said, a discretion that must be exercised with care and caution. Rule 57.07 is concerned with compensating parties for costs that were unreasonably incurred (costs that were unnecessary or the result of delay). This is not an opportunity to regulate lawyers either by the judge or by adversaries in the litigation. It is not an opportunity to find a pocket to pay costs to people who may deserve them but for whom there is no expectation of realizing on any award made in the normal course. It is not enough to simply fit into the circumstance outlined in Rule 57.07.

[40] I consider the first part of the test. From the outset and through the trial, it was apparent that counsel had not fully considered the requirements of the action that had been brought. Liability was conceded. Nonetheless damages must be proved. This starts with the requirement that the damages (the injuries) must be shown to have resulted from the accident. To connect a minor collision to a stroke and subsequent death that occurred six years after the collision was a core concern for this case as it was presented. At the outset, counsel seemed unaware of this difficulty. In time, some evidence was called. It was weak. What was somehow missed, lost or not sufficiently stressed were the injuries that Bertram Moodie suffered while he was alive. Of course, these are general observations about the conduct of the trial which, on their own, cannot and should not justify an award of costs against the lawyer personally.

[41] Are there specific incidences that further these concerns? During the course of the trial, there were two that stood out. At a point in time, while the plaintiff’s case was being presented, I sought to review with counsel the remaining witnesses to be called by the plaintiff and the nature of the evidence each was to provide. One was identified as being prepared to provide the court with evidence as to future care costs for the injuries that had been caused by the accident. This left the court to question whether these were future care costs for Bertram Moodie, the man who had subsequently died. It appears the answer was “yes”. The witness was not called. Later, while the evidence of the defence was being presented, I stopped the trial to point out to counsel for the plaintiff difficulties he confronted. In particular, I noted that he had not proved any special damages. He had not produced a single invoice or other evidence of any expenditure of the plaintiff on account of any injury he had suffered. Counsel demurred. He noted that, at the outset of the trial, he had been requested to and had produced a Bill of Costs. On review, that Bill did include references to charges related to the care and treatment of Bertram Moodie following the accident. For lawyers or others with legal training, there is an obvious problem. Counsel did not appreciate the difference between costs and special damages.

[42] Counsel for Maxine Moodie-Meritt suggested two other specific incidents that would serve to support an award of costs against Victor Opara personally. The first is that Victor Opara failed to advise Maxine Moodie-Meritt the chances of succeeding in a claim asserting the stroke suffered by her father was caused by the accident that had occurred six years before. The second is that Victor Opara proceeded with the Family Law Act claim on behalf of Maxine Moodie-Meritt although she had instructed him not to do so. Counsel for Victor Opara questioned the former example. It is not clear that the latter is as stated. Counsel for Victor Opara pointed out that the day following the asserted instruction, Maxine Moodie-Meritt telephoned Victor Opara to inquire as to what would be required for such relief to be claimed. Be that as it may, neither of these situations represents a “specific incident” that would contribute to a finding that a costs award should be made against counsel personally. These are factors that impact on the relationship between Victor Opara and his client and are better dealt with in that context.

[43] Having said this and referring back to the overall conduct of the trial and the two specific incidents: being (1) the witness as to future care costs of the man who had died; and (2) the failure of counsel to properly distinguish between special damages and costs, I find that the first part of the test has been met. It is not so much the delay or unnecessary work these errors would have occasioned, it is the misunderstanding of the fundamentals of what it means to prove damages. It is one thing to proceed with incompetence, it is quite another to start without an appreciation of the basic requirements necessary to prove damages at trial. There can be no future care costs for a party who has died. Costs and special damages are not the same thing. In such circumstances, the trial, as a whole, is a waste of the time of the parties and the resources of the court. In a legal context, something is vexatious when someone proceeds with insufficient grounds for the action taken and to annoy the other side.[^16] It is conduct without reasonable cause or excuse. It is harassing or annoying.[^17] Understood in this way, the failures of counsel to which I have referred were vexatious. There were no grounds to suggest a witness for future care costs and no excuse to fail to recognize the difference between special damages and costs. This was bound to annoy the other parties and leave the judge shaking his (or her) head in frustration. This is a proper consideration in dealing with costs.[^18]

[44] I turn to the second part of the test, the exercise of discretion in considering whether costs should be ordered against counsel personally. There is a basic level of understanding required of any lawyer who comes to court. If that is absent the trail cannot proceed. Here, liability was admitted. Damages were the only issue. If a lawyer fails to appreciate the basic purpose of a witness being called (future care costs) or the difference between special damages and costs, how can a trial concerned only with damages be expected to proceed. Inevitably, the process will fail to carry out its function of fairly and properly resolving disputes.

[45] In the circumstances, I find that some measure of costs should be assessed against Victor Opara personally. Not all the problems with this trial can be associated with the specific issues I have referred to. The quantum suggested by counsel for the Toronto Transit Commission is reasonable. Of the costs of ($69,890 for fees + disbursements of $31,220.48) $101,110.48 awarded in favour of the Toronto Transit Commission, $10,000 are to be paid by Victor Opara personally.

[46] In the result, I order:

1. Costs payable to the Toronto Transit Commission of $101,110.48, as well as any H.S.T. not otherwise accounted for in the outline of costs that has been provided.

2. Of those costs, $91,110.48 are attributed to the Estate of Bertram Moodie.

3. Of those costs, $10,000 are attributed to Victor Opara, personally.

[47] At the conclusion of the submission made by the parties, they were asked whether they were seeking costs of this motion. The Toronto Transit Commission and Victor Opara are not. Maxine Moodie-Meritt is.

[48] If the parties are unable to agree as to these costs, I will consider written submissions as follows:

1. On behalf of Maxine Moodie-Meritt, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 4 pages, double-spaced, not including any Bill of Costs or Costs Outline and case law that is to be provided

2. On behalf of whichever of the other parties wishes to respond, within 10 days thereafter. Such submissions are to be no longer than 4 pages, double-spaced.

3. If necessary, in reply, on behalf of Maxine Moodie-Meritt, within 5 days thereafter. Such submissions are to be no longer than 2 pages, double-spaced.

LEDERER J.

Date: 20150929

[^1]: Factum of the Plaintiff, para. 102.
[^2]: Factum of the Plaintiff, para. 97, referring to Yelda v. Vu 2013 ONSC 5903.
[^3]: Written Cost Submissions of the Defendants referring to Nandlal v. Toronto Transit Commission, 2014 ONSC 5587.
[^4]: Factum of the Plaintiff, paras. 125‑127.
[^5]: Grey Estate v. Winkfield, 1992 CarswellOnt 4060.
[^6]: Ibid.
[^7]: Shafer v. Jones (No. 2).
[^8]: Penney Estate v. Resetar, 2011 CarswellOnt.
[^9]: Kubiscek (Trustee of) v. Brackenbury.
[^10]: Rule 57.07(1) Rules of Civil Procedure.
[^11]: See rule 57.07(1)(b).
[^12]: Rule 57.07(2).
[^13]: Carleton v. Beaverton Hotel.
[^14]: Bailey v. Barbour citing Galganov v. Russell (Township).
[^15]: Bailey v. Barbour, supra.
[^16]: The Oxford Concise Dictionary, Ninth Edition.
[^17]: Black’s Law Dictionary, Eighth Edition.
[^18]: Rule 57.01(1)(f) Rules of Civil Procedure.