Court File and Parties

COURT FILE NO.: CV-09-379559

DATE: 2015-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maxine Moodie-Meritt, Personally and as Sole Executrix and Trustee of the Estate of Bertram Moodie, Deceased, Plaintiffs

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 endorsement considers a request for costs of a hearing that dealt with the costs of a trial.

[2] The trial was before a jury. It concerned a motor vehicle collision between a bus operated by the Toronto Transit Commission and a car owned and operated by Bertram Moodie. The accident took place on May 30, 2007. On December 15, 2013 Bertram Moodie died. The trial date was rescheduled. Maxine Moodie-Meritt, the daughter of Bertram Moodie, was appointed the estate trustee of her father’s estate on March 16, 2014. The trial commenced on October 14, 2014 and proceeded over nine days. The jury found in favour of the defendants. Liability was admitted but, by answering “no” to the question:

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?

the jury determined there were no damages which the defendants could be ordered to pay.

[3] The question of costs remained. The Toronto Transit Commission asked that its costs be paid. It raised the prospect, but in time withdrew from the proposition, that the costs should be paid personally by counsel for the plaintiff, Victor Opara. Rather, it sought an order that the costs be paid by Maxine Moodie-Meritt in her personal capacity. In the time after the trial there was a falling out between Maxine Moodie-Meritt and Victor Opara. He obtained an order getting off the record. Maxine Moodie-Meritt was without counsel. She picked up the idea initiated by the Toronto Transit Commission that any costs should be paid by her counsel personally. The issue having been revived, counsel for the Toronto Transit Commission indicated an intention to make submissions to the same effect.

[4] A request for costs against a lawyer in his or her personal capacity requires that the counsel involved be given an opportunity to “make representations to the court” (see: rule 57.07(2)). Meetings were held and procedural orders made to arrange a process that would bring a motion for costs and the issue of who should pay them to court.

[5] In the meantime, both Victor Opara and Maxine Moodie-Meritt retained counsel.

[6] The hearing took place on September 15, 2015. An Endorsement was released on September 29, 2015. (See 2015 ONSC 5927). Costs were ordered payable to the Toronto Transit Commission in the amount of $101,110.48. Of those costs $91,110.48 were ordered to be paid by the Estate of Bertram Moodie and $10,000 by Victor Opara personally. No order for costs was made against Maxine Moodie-Meritt in her personal capacity.

[7] At the end of the hearing the issue of costs for that day was raised. Both counsel for the Toronto Transit Commission and Victor Opara indicated they would not be seeking costs. Counsel for Maxine Moodie-Meritt said that she would. The Endorsement provided for written submissions which have been made, received and reviewed.

[8] Counsel for Maxine Moodie-Meritt seeks costs of $27,331.52.

[9] I begin by observing that the submissions made on behalf of Maxine Moodie-Meritt suggest that it was at the behest of the court that she sought costs from Victor Opara. (“The Court was of the view that Maxine Moodie-Meritt should seek such costs ordered paid for by Opara”). This is not so. Any decision to seek such costs was made by Maxine Moodie-Meritt. This is confirmed in the submissions made on behalf of the Toronto Transit Commission (“Ms. Moodie-Meritt decided to seek personal costs against her former lawyer…”).

[10] It should go without saying that $27,331.52 for a one day hearing on costs is excessive. There are full trials that cost less. Counsel for Maxine Moodie-Meritt justified this on the following basis:

This action involved a toxic mix of defective lawyering and a hyper emotional client. Maxine Moodie-Meritt has reviewed the submissions and requests for indemnity, full indemnity but submitting partial indemnity and will leave it up to the court to decide on these costs. The Toronto Transit Commission, however, should have never demanded payment from Maxine Moodie-Merit personally. The ordinary rule is that costs are awarded on a partial indemnity scale. Given the attempts by Maxine Moodie-Meritt as detailed above to mitigate her cost exposure, there is no reason to deviate from the hourly rates of the grid. Given this Court’s views on Rule 49 offices expressed orally at the motion, and due to the late service of the offer (after materials were filed), Maxine Moodie-Meritt is submitting costs on a partial full indemnity basis but does request her full partial indemnity costs. We submit the costs submitted herein of $27,331.52 on behalf of Maxine Moodie-Meritt are reasonable in the circumstances.

[11] To my mind this paragraph is not helpful. The question of the quality of the lawyering was reviewed in the initial endorsement. A small portion of the overall costs were ordered to be paid by Victor Opara in his personal capacity. Nothing in this separates or removes the responsibility of Maxine Moodie-Meritt for her role. This paragraph acknowledges she was “a hyper-emotional client”. It may be that the Toronto Transit Commission was unsuccessful in its request that Maxine Moodie-Meritt pay costs in her personal capacity. I point out, however, that the request, on its own, would not have necessitated an appearance before the court. It was Maxine Moody-Meritt’s claim that the lawyer pay any costs awarded against her that demonstrated the need for the appearance. A “success” of $10,000, in these circumstances, does not justify the cost of $27,331.52. Such an award would defy any concept of proportionality. In these circumstances the “ordinary rule” is not that costs are awarded on a partial indemnity basis. Costs are rarely awarded for a proceeding that, in itself, deals with the costs of a prior trial (see: rule 57.01 (2) of the Rules of Civil Procedure which refers to costs as flowing to a party based on their success in a “proceeding or step in a proceeding” and K.D.C. v. M.C.C. 2007 ONCJ 210, [2007] O.J. 1823 at para. 12: “the rules do not envisage a separate determination for costs of costs submissions… submissions for costs are not a ‘step’ in the case”). Costs of a proceeding to determine costs should occur in only in a “very unusual case” (Johanns v. Fulford [2010] O.J. No. 6320 at para. 12). Finally, any reference to any attempts by Maxine Moodie-Meritt to mitigate her cost exposure reflects on her offer to settle the claim by paying $5,001. This offer was apparently made on September 9, 2015 which is to say less than one week before the hearing. Thus, it is not an offer that falls within the requirements of rule 49.03 (the offer was made less than seven days before the hearing commenced) and, as a result the costs consequences referred to in rule 49.10 do not apply.

[12] This was, from the beginning a difficult case, not because of the issues raised but because of the actions and attitudes of the participants, all of them.

[13] In the circumstances there is no reason to withdraw from the normal premise that costs proceedings do not beget more costs. Each party should pay its own. Maxine Moodie-Meritt should pay her own.

Lederer J.

Date: November 13, 2015