CITATION: Bollman v. Soenen, 2016 ONSC 1423
COURT FILE NO.: CV-12-46
DATE: 2016-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Jane Bollman
Plaintiff
– and –
Dr. Gary Maynard Soenen
Defendant
COUNSEL:
André I.G. Michael and Kimberly N. Knight, Counsel for the Plaintiff
Mark Veneziano and Lindsay N. Beck, Counsel for the Defendant
SUPPLEMENTAL ENDORSEMENT RE: COSTS
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] In my reasons for decision, released December 16, 2015 (2015 ONSC 7613), I invited written submissions from counsel on the issue of costs for this medical malpractice trial. Their submissions have been received and reviewed. I am also requires to address the costs of the first trial, as directed by the Court of Appeal in their order granted January 17, 2014.
[2] Counsel agree the plaintiff is entitled to partial indemnity costs for both trials. She was successful on the first trial but the decision was overturned by the Court of Appeal. The plaintiff was partially successful on the second trial. I awarded damages of $35,000 with respect to delayed diagnosis, rejecting her claims regarding issues of informed consent and surgical negligence.
[3] On behalf of the plaintiff, Mr. Michael requests a cost award of $217,162.84, as follows:
(a) fees; $133,877.25
(b) disbursements; $ 59,258.20
(c) GST/HST $ 24,027.39
[4] Ms. Beck, for the defendant, suggests a cost award of $147,000, being $135,000 for fees and $12,000 for disbursements, both inclusive of GST.
[5] Ms. Beck provided a bill of costs for comparative purposes. She reports the defendant’s partial indemnity costs for both trials to be $154,052.10, inclusive of HST, being $142,013.88 in fees and $12,038.22 in disbursements.
[6] No offers to settle were referred to in counsel’s submissions, most unusual in my view.
[7] The only significant dispute regarding costs is the expense for expert opinion evidence. Mr. Michael identifies approximately $50,000 in his bill of costs for opinion reports and trial time for the plaintiff’s experts. Ms. Beck only refers to expert witness fees of $3,785 for the first trial. In all likelihood, the defendant’s expense for experts was comparable to the plaintiff in that three witnesses were called by each side to offer opinion evidence.
[8] Ms. Beck refers to Item 28 in the Tariffs regarding witness fees for an expert of $350 a day. Such does not appear to be the claim of the plaintiff but, rather, the actual fee charged.
[9] Expert opinion evidence is a growth industry. Fees charged exceed any standard of reasonableness and render litigation cost prohibitive. The amounts identified in the plaintiff’s bill of costs are excessive. I suspect the defendant’s incurred expense to be likewise. However, in the absence of any meaningful standards for opinion evidence, particularly by the College of Physicians and Surgeons, I am not prepared to penalize the plaintiff by reducing her claim for the expense she incurred.
[10] The trial required six days. The first trial was longer. The issues were important. They were also difficult. Opinion evidence was necessary. The plaintiff acted reasonably in pursuing her claim.
[11] Of particular concern in this case was the lack of proper recordkeeping by Dr. Soenen. His failure to properly record events and discussions unnecessarily complicated this lawsuit, made expert review difficult and lengthened the trial.
[12] The standard on costs is reasonableness. In all of the circumstances, I conclude the unsuccessful defendant would have reasonably expected to pay partial indemnity costs of $210,000. I award this amount to the plaintiff.
D.J. Gordon J.
Released: February 26, 2016
CITATION: Bollman v. Soenen, 2016 ONSC 1423
COURT FILE NO.: CV-12-46
DATE: 2016-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Jane Bollman
Plaintiff
– and –
Dr. Gary Maynard Soenen
Defendant
SUPPLEMENTAL ENDORSEMENT
RE: costs
D.J. Gordon J.
Released: February 26, 2016
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