COSTS ENDORSEMENT
COURT FILE NO.: CV-14-1405-00
DATE: 2015 11 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: REECE v. BRAMPTON CIVIC HOSPITAL
BEFORE: Fragomeni J.
COUNSEL: Meghan Payne, for the Defendant
Leonard Reece, In Person
COSTS ENDORSEMENT
[1] I have now had the opportunity to review and consider the matter of costs in this matter.
[2] The Defendant seeks costs fixed in the sum of $5,000.00 payable forthwith. The Defendant submits that it is entitled to costs and points to the following factors in support of that position:
The motion was improper, vexatious and unnecessary.
There was no prejudice to the Plaintiff as a result of the alleged failure to comply with the timetable as ordered by Justice Trimble on June 13, 2014, even if the court had accepted these allegations.
The costs of responding to unnecessary and unmeritorious motions were paid directly from funds that might otherwise be invested in the provision of public health care.
[3] It is important to set out that in his Notice of Motion Mr. Reece requested the following relief:
An Order to strike the Defendants Defence;
An Order requiring Counsel for the Defendants, Katharine L. Bysick and Meghan Payne to be charged for Perjury under the Criminal Code (R.S.C., 1985, c. C-46), S.131. (1) Subject to subsection (2);
An Order requiring the Defendants/Respondents to pay costs on a substantial indemnity basis; and
Such further and other relief as this Honourable Court may provide.
[4] My conclusion at the Motion was the following:
- With respect to charging counsel for the Defendant with perjury under the Criminal Code I set out the following at paragraph 32 of my endorsement:
This court has no jurisdiction or authority to make such an order.
- With respect to striking the Statement of Defence I set out the following at paragraph 39:
The plaintiff’s motion is dismissed. The evidentiary record before me does not support the order being requested.
[5] Mr. Reece was not successful at the Motion, the Defendant was. I am satisfied therefore, that the Defendant is entitled to costs of the Motion.
[6] Rule 57.01(1)(o.b) states:
In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
[7] As set out in Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521 (C.A.) the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party. Armstrong, J.A. sets out the following at paras. 15 and 26:
[15] The motions judge concluded, correctly in my view, that there is now a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case. The appellants submitted to the motions court and to this court that the case at bar is such a case. The motions judge, in deciding that this was not an exceptional case, said [at para. 52]:
Only if the assessment process will be more suited to effect procedural and substantive justice should the Court refer the matter for assessment. There must be some element to the case that is out of the ordinary or unusual that would warrant deviating from the presumption that costs are to be fixed. Neither complex litigation nor significant amounts in legal fees will be enough for a case to be exceptional. The judge should be able to fix costs with a reasonable review of the work completed without having to scrutinize each and every docket. If that type of scrutinizing analysis is required, then perhaps, the matter would fall within the exception and be referred to assessment: BNY Financial Corp.-Canada v. National Automotive Warehousing Inc., [1999] O.J. No. 1273 (Commercial List, Gen. Div.) (BNY Financial).
[26] It is important to bear in mind that rule 57.01(3), which established the costs grid, provides:
57.01(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.
Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The express language of rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process, together with the other factors in rule 57.01. Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
[8] I am satisfied in all of the circumstances that a fair and reasonable amount for costs is $2,500 all-inclusive to be paid within 30 days.
[9] Order to issue as follows:
- that the Plaintiff shall pay to the Defendant its costs fixed in the all-inclusive sum of $2,500 payable within 30 days.
Fragomeni J.
Date: November 10, 2015
COURT FILE NO.: CV-14-1405-00
DATE: 2015 11 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: REECE v. BRAMPTON CIVIC HOSPITAL
BEFORE: Fragomeni J.
COUNSEL: Meghan Payne, for the Defendant
Leonard Reece, In Person
COSTS ENDORSEMENT
Fragomeni J.
DATE: November 9, 2015