CITATION: Bell v. Ontario Power Generation Inc., 2016 ONSC 1000

OSHAWA COURT FILE NO.: CV-12-78550

DATE: 20160208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SYLVIA BELL, Plaintiff

AND:

ONTARIO POWER GENERATION INC., Defendant

BEFORE: The Hon. Mr. Justice J.R. McCarthy

COUNSEL: K. Armagon Counsel, for the Plaintiff

J. Robinson Counsel, for the Defendant

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] In this action, the Plaintiff sought an entitlement to past and ongoing pension benefits as an eligible spouse of a deceased member of a pension plan operated on behalf of employees of the Defendant. On November 25, 2015, after a trial lasting six days, I dismissed the Plaintiff’s claim against the Defendant. At that time, I invited the parties to furnish the court with written submissions on costs. I have now received those written submissions.

[2] The Defendant is presumptively entitled to costs. This is not challenged by the Plaintiff. According to the “Total Fees & Disbursements” line of its Bill of Costs, the Defendant seeks $145,625.97. A careful review of that Bill of Costs, however, reveals that the Defendant failed to add in the “Total Taxable Disbursements” component set out in Part II, resulting in a discrepancy between the bottom line and the sum total of the actual amounts being sought. If one adds the total taxable disbursements number to that bottom line, one arrives at a revised total sought for costs of $161,298.51. In the absence of a submission to explain or account for the discrepancy, the court must presume that the Plaintiff failed to properly add the disbursements to the total being sought. The Defendant seeks those costs on a partial indemnity basis to the date of its unaccepted Rule 49 offer to settle of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dated September 18, 2015. Thereafter, it seeks costs on a substantial indemnity basis.

[3] The Plaintiff takes issues with the quantum of the Defendant’s claim for fees and with one large disbursement of $11,118.58. The Plaintiff submits that this was not a complex proceeding, the sole issue for determination being whether the Plaintiff was an eligible spouse at the date of the deceased’s retirement as defined in the pension plan and in the Pension Benefits Act, R.S.O. 1990, c. P.8. The Plaintiff asks the court to find that it would be unreasonable for the Plaintiff to have expected a claim for fees totalling $127,069.50 in light of the issue for determination. The Plaintiff submits that costs in the range of $50,000, plus provable disbursements, would be appropriate.

[4] The time claimed by the Defendant appears to me to be very much on the high side. As trial judge, I did not have the benefit of reviewing the pre-trial memorandum prepared by the Defendant. By any measure, however, 53.7 hours for preparation and attendance at the pre-trial and other related tasks is exorbitant. I am left wondering what it was about this case that required a lawyer with 19 years of experience to prepare the affidavit of documents. This is normally a task that is delegated to a junior lawyer or support staff in light of the labour intensive nature of the exercise.

[5] The Defendant’s claim for trial preparation time strikes me as equally exorbitant. The Defendant claims for time spent reviewing an expert’s report; yet no expert report or evidence was received by the court. The motion prepared by counsel was presumably the motion to have the claim dismissed as statute barred. That motion was singularly unsuccessful.

[6] The fluid presentation of the Defendant’s case was greatly hampered by the manner in which documents were introduced into evidence. The Defence utterly failed to introduce the critical documents in this case in an organized and chronological manner. I find that it was highly inefficient to introduce many of the documents in such a haphazard and disorganized fashion. The Defendant made no use of a request to admit documents. The court was not asked to receive these documents as business records. Counsel for the Defendant failed to furnish the court or the witnesses with a workable, useable and paginated brief of documents; instead, documents were brandished about and introduced through witnesses whose viva voce evidence added very little to the trial. For example, it is mind boggling that a Ministry of Transportation employee would have to be called as a witness when a certified copy of the deceased’s driver’s abstract could have, and should have, been filed as a business record.

[7] As well, defence counsel did not conduct a focused or efficient cross-examination of the Plaintiff’s witnesses. Instead, counsel was obliged to ask the court for numerous indulgences while he checked his notes or looked for documents. As well, there were often unnecessary gaps between questions, periods of dead air, when the court waited anxiously for the examination to continue.

[8] In short, the defence of this case could have been greatly simplified and expedited had counsel for the Defendant practiced better advocacy and exercised a more adept approach to the introduction of documentary evidence. I agree with counsel for the Plaintiff that better preparation together with a more efficient, organized and focused approach at trial would have greatly reduced the trial time for this action.

[9] On the other hand, I found that the Plaintiff introduced its case in a straightforward, efficient and organized fashion. The fact that I did not accept much of the evidence led by the Plaintiff as credible or reliable does not change this fact.

[10] I must also consider the principle of proportionality. In a case that should have taken only three to four days from beginning to end and which involved the determination of only one crucial issue, no reasonable person could expect to face costs consequences of either $145,000 or $161,000. Neither amount is at all proportionate to the time that should have been required to complete the case.

[11] Nevertheless, the court has to take into consideration the degree of success of the Defendant and its offer to settle dated September 18, 2015. Had the Plaintiff accepted a dismissal of the action under that offer, the costs that the Defendant now seeks would not have been incurred.

[12] The principal issue in the case was whether the Plaintiff was entitled to a survivor’s pension: not an insignificant amount of money was at stake. Any finding in favour of the Plaintiff on this issue would have resulted in both a significant judgment for arrears of pension payments as well as liability for future payments to an unknown date. Moreover, had the court awarded a survivor’s pension in these circumstances, the Defendant would have been left with a precedent of some concern. Instead, the Defendant prevailed on the most crucial issue. The issue was of practical and precedential importance.

[13] The proceeding was one of moderate complexity involving the interpretations of documents, the discernment of a deceased person’s intentions and the piecing together of events from 1998. Relevant legislation needed to be reviewed and applied. The Defendant was faced with the evidence of lay witnesses whose testimony had to be challenged on the basis of reliability and credibility, and contradicted by other pieces of evidence. The Defendant was highly successful in this aspect of the proceeding.

[14] I am not prepared to allow the disbursement of $11,118.58 for “Morneau Shepell (Trustee Company)”. First, there is no supporting invoice setting out what the disbursement pertains to. Second, the charge does not appear as an entry in the “Billed and Unbilled Recap of Cost Detail” which appears to have been generated on December 7, 2015. Third, the disbursement would appear to relate to attendance at trial of employees of Morneau Shepell. I can find no justification for such a charge to be levied in light of the lay evidence offered by these witnesses and the length of time that they spent in court. These witnesses could have, and should have, been summonsed. Conduct money under the tariffs would have been paid. It would, in my view, establish a dangerous precedent to permit non-expert witnesses to charge for coming to court and to then pass those costs on to the unsuccessful party.

Disposition

[15] Having taken into account the submissions of the parties, the offer to settle and the factors set out under Rule 57.01 of the Rules of Civil Procedure, I exercise my discretion on costs as follows: the Plaintiff shall pay the Defendant its costs in the total amount of $72,353.96 comprised of $67,800 for fees inclusive of HST plus $4,553.96 for disbursements. That amount is fixed and payable forthwith.

McCarthy J.

Date: February 9, 2016