Court File and Parties

COURT FILE NO.: CV-10-401690 DATE: 201604 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jordan Sacks, Lisa Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa Sacks, Michael Sacks and Annette Sacks, Plaintiffs

AND:

Theodore Ross, Aliyah Kanji, Anna Muareen Bendzsak, Jeffrey Singer, John Doe I, John Doe II, Pamela Raye-IIogu, X.Li T. Hollowitch, Jane Doe I, Jane Doe II, and Sunnybrook Health Sciences Centre, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Duncan Embury and Daniela M. Pacheco, for the Plaintiffs Frank McLaughlin and Dorothy Charach, Counsel for the Defendants, Theodore Ross, Aliyah Kanji, Anna Maureen Bendzsak and Jeffrey Singer William D.T. Carter and Anna L. Marrison, for the Defendants, John Doe I, John Doe II, Pamela Raye-IIogu, X.Li T. Hollowitch, Jane Doe I, Jane Doe, II and Sunnybrook Health Sciences Centre

HEARD: In Writing

Endorsement

[1] This action is a claim for damages arising from the care and treatment provided by the Defendants to the Plaintiff, Jordan Sacks, in May 2008. The claims of the other Plaintiffs are asserted pursuant to the Family Law Act, R.S.O. 1990, c. F.3 [“FLA”]. The adult FLA claimants are Jordan’s wife, father and mother.

[2] The action proceeded to trial with a jury commencing October 26, 2015. It was the decision of the Plaintiffs to have the issues determined by a jury. At the outset of trial, the solicitor for the Defendant Physicians suggested striking the jury and proceeding by judge alone, but the Plaintiffs wished to retain the jury, as was their right.

[3] Damages had been agreed upon but the issues of standard of care and causation were litigated for 6½ weeks, with the jury returning its verdict December 7, 2015. The jury found breaches of the standard of care against Drs. Ross, Kanji, and Bendzsak and against Nurse Li and Sunnybrook Health Sciences Centre [“the Hospital”]. The jury found the negligence did not cause the injuries to Jordan Sacks. The action was therefore dismissed.

[4] The Plaintiffs have appealed the judgment. I agreed to fix the costs following delivery of written submissions, which have been received.

Positions of the Parties

The Defendant Physicians

[5] The Defendant Physicians request costs on a partial indemnity scale fixed in the sum of $668,359.97. This is comprised of fees of $447,261 and disbursements of $144,224.57.

[6] Counsel for the Defendant Physicians submits that there is no reason to depart from the usual order that costs follow the event. Further, it is argued that the factors set out in Rule 57.01 of the Rules of Civil Procedure, O. Reg. 193/15, support their position: this was a complex trial which was of great importance to the litigants, and the Plaintiffs were aware from the outset that if they were unsuccessful at trial there would be significant costs incurred by these Defendants, so they cannot argue that they are surprised by the quantum of fees being claimed.

[7] The Defendant Physicians dispute the Plaintiffs’ assertions that they were substantially successful at trial because the jury made findings of breaches of the standard of care. Rather, these Defendants argue that the majority of court time was spent on the causation issue which was the pivotal issue in the trial and furthermore, the outcome on the standard of care issue was divided given the number of alleged breaches that the Plaintiffs urged the jury to find.

[8] The Defendant Physicians submit that there is no principled basis for denying costs to them, given their success at trial. The Defendant Physicians are legally entitled to recover their costs and the case law is clear on this point. Finally, there is no basis for making an order limiting the liability for payment of costs of the parents of Jordan, Michael and Annette Sacks.

The Defendant Hospital and Nurses

[9] The Hospital requests costs fixed in the sum of $500,000, noting that the actual fees and disbursements incurred were $916,015.20. These Defendants submit that the general rule in litigation is that costs follow the event so the losing party pays the costs of the successful party. Counsel submits that prior to the commencement of the trial, the Hospital verbally offered to settle with the Plaintiffs for $2 million. Although it is conceded this was not a Rule 49.10(2) offer, it is a factor that ought to be taken into consideration by the court when fixing costs.

[10] The Hospital states that the action was complex and important and expert evidence was required and submits that the Hospital attempted to streamline the trial so no time and expense were wasted.

[11] The Hospital agrees with the Defendant Physicians that there is no foundation on which the court should exclude the FLA claimants from costs; nor is there any basis for denying the successful defendants their costs from the Plaintiffs.

The Plaintiffs

[12] It is the position of the Plaintiffs that there ought to be no order of costs because there was divided success. The Plaintiffs were successful in establishing breaches of the standards of care against the Defendant Physicians, one nurse and the Hospital. It is submitted that the majority of trial time was devoted to standard of care issues which were largely decided against the Defendants.

[13] The Plaintiffs argue that the issues in this trial were bona fide ones that required a determination by trial and “any adverse costs award would function as a deterrent to patients with highly complex medical circumstances in their attempts at accessing justice.” Reliance is placed on the refusal of the court to make an award of costs in the medical negligence action Mangal v. William Osler Health Centre, 2013 ONSC 5276.

[14] It is further submitted that the Defendants refused to admit facts that they ought to have admitted which made the trial longer than it otherwise would have been and this should be taken into account by the court when fixing costs. The Plaintiffs assert that “the Defendants’ success at trial was predicated largely on the Jury’s answer to the causation question. While the determination as to whether the jury questions on causation were appropriate in the circumstances must be left to the Ontario Court of Appeal, it is important for the purposes of considering costs that these questions were put to the Jury over the express objection of the Plaintiffs.” Counsel for the Plaintiffs argues that issue concerning the jury questions is another factor that should persuade the court to exercise its discretion not to make an order for payment of costs.

[15] Finally, the Plaintiffs submit that the Defendant Physicians have not incurred any actual costs, their costs were paid by the Canadian Medical Protective Association [“CMPA”] and as such, they cannot seek costs. In the alternative, any costs order ought to be made against the main Plaintiff only, Jordan Sacks, and not the FLA claimants.

Analysis

The Law on Costs in Ontario

[16] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides as follows:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[17] Rule 57.01 of the Rules of Civil Procedure identifies the factors a court may consider when exercising its discretion to award costs:

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.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(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;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[18] Rule 49.10 limits the court’s discretion on costs in certain circumstances when there has been a qualifying offer to settle. Rule 49.13 provides as follows:

Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

[19] Rule 49, with its provision for the imposition of costs if a party fails to obtain an outcome as favourable as an offer to settle delivered prior to the commencement of trial, is designed to encourage parties to accept reasonable offers to settle and avoid the uncertainty and expense of a trial. In this case, there were no formal offers to settle that complied with Rule 49.10 that would attract the cost consequences specified in that rule.

[20] Certain principles have been established that serve as a guide when the court is exercising its discretion when fixing costs.

• The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 75 O.R. (3d) 638 (C.A.).
• The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.) Epstein J.A. stated at paras. 51-52:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.

[21] I agree that the Courts of Justice Act gives the court a wide discretion concerning the award of costs, the quantum of costs and the parties that must pay a costs order. Rule 57.01 provides the court with guidance about the various factors that may be considered when exercising its discretion.

[22] Generally, in civil proceedings in Ontario, the rule of thumb is that costs follow the event unless there is a persuasive reason that they should not. Cumming J. in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5, described the “normative approach” to an application for costs:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms. [Emphasis added].

[23] In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10, Perell J. succinctly outlined the purposes of modern costs rules as follows:

Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: [Citations omitted].

[24] Justice Perell went on to note, at para. 12:

In the exercise of the court’s discretion, the most general rule is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale: Bell Canada v. Olympia & York Developments Ltd., 17 O.R. (3d) 135 (Ont. C.A.); St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9, [2009] O.J. No. 27 at para. 4 (C.A.).

[25] I agree with the comments of Justice Perell which accurately summarize the state of the law on costs in Ontario.

Should There be an Order for Payment of Costs?

[26] The first issue for my consideration is whether this is a proper case for the court to depart from the usual practice of costs being awarded to the successful party. The solicitor for the Plaintiffs argues that there should be no order as to costs and relies on the Mangal decision as authority for this position. It is submitted that “the circumstances in this case are vastly similar to those in the Mangal decision”.

[27] In Mangal, Justice Marrocco observed that the facts of the case were tragic: immediately after delivering her baby, the mother started to hemorrhage and despite undergoing surgery in an attempt to stop the bleeding, she died. Marrocco J. noted that the plaintiffs against whom the defendant hospital was seeking costs were the dead mother’s 13-year-old son and 9-year-old daughter as well as her husband, who was described as “a single father attempting to raise two children.” There was evidence before the court about the financial circumstances of the widower.

[28] In declining to make an award of costs, Justice Marrocco said, at para. 9:

It is my view that imposing $272,000 in costs upon these plaintiffs would amount to a failure by me to exercise the discretion given to me by the Courts of Justice Act. It would amount to the mechanistic application of the principle that costs follow the cause without regard to the totality of the circumstances in this case. It would be a decision devoid of any hint of the principle of access to justice.

[29] It is trite law to say that each case must be decided on its own particular facts. I do not agree that the facts of Mangal are “vastly similar” to the case before me. While both had tragic outcomes, the two cases are factually very different, as are the circumstances of the Plaintiffs. Mangal involved the unexpected death of a young woman immediately following childbirth, leaving a baby and a toddler without a mother. It is an unusual order to deprive a successful party of its costs. Many cases that proceed to trial are tragic: personal injury cases where the plaintiff has suffered devastating, life-altering injuries, has suffered sexual abuse or has died come before this court on a regular basis. Despite the severity of the damages, many of these cases involve a serious dispute on the issue of liability and that is what forces the action on through a lengthy trial. A defendant may argue that the accident that resulted in the terrible injury was not his or her fault; in a medical negligence case, the defendants may argue that the care that was provided to the plaintiff was not negligent or that the injuries suffered, while tragic, were not caused by any actions of the defendants.

[30] A plaintiff has the right to sue a defendant for negligence and to have a judge or jury decide whether or not the actions of the defendant fell below the appropriate standard of care. This reality is at the heart of our justice system: to receive compensation, a plaintiff must demonstrate on a balance of probabilities that the defendant was negligent and that the conduct caused his or her injuries. If the plaintiff fails to prove negligence or causation, there is no recovery.

[31] The right to take a case through trial to verdict, however, is not unfettered. The escalating costs of civil actions are a concern for the court as well as for the parties. The Rules provide various costs sanctions that may be imposed on a party, generally based on behaviour or conduct during the proceeding. The potential adverse costs consequences of being unsuccessful at trial are always a consideration for counsel and for the parties. As discussed, in Ontario, the usual order following a trial is that costs are awarded to the successful party on a partial indemnity scale.

[32] Access to justice is an important issue for the courts, and the ever-increasing costs of litigation are a concern. Generally, cases of personal injury involve counsel for the plaintiff acting pursuant to a contingency fee agreement, which provides access to justice for parties who might not otherwise be able to bring meritorious claims forward. Recently, in Ontario, plaintiffs have the option of purchasing adverse costs insurance which provides payment for a costs award following an unsuccessful trial. This shields plaintiffs from the financial consequences of proceeding to trial and having an unfavourable outcome. While I was not advised whether the Plaintiffs in this case retained Mr. Embury on a contingency fee agreement basis nor do I know if they purchased adverse costs insurance, I make these points simply as an observation that access to justice for plaintiffs with challenging but meritorious claims is not as difficult as it once was.

[33] In Yelda v. Vu, 2013 ONSC 5903, the court stated, at para. 11:

The default rule, however, in resolving costs issues is that the successful party is entitled to its costs. The principle that costs follow the event should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct of proceedings.

[34] The question for my consideration is whether this case is one of those “exceptional” cases as described by Cummings J. My decision on costs cannot be driven by sympathy; that would be an improper exercise of the discretion conveyed to me.

[35] This was a hard fought trial on all issues, with excellent counsel. All of the parties had the opportunity to put their case forward and the bulk of the evidence emanated from well qualified experts. There was no misconduct by the parties. The action is a serious one and has always been treated as such by counsel.

[36] In Greenhalgh v. Douro-Dummer, 2011 ONSC 2064, at para. 36, when determining whether the tragic circumstances of the case ought to be taken into account when exercising discretion on costs, the court noted:

Southey J. and Wright J. are concerned about the problem posed for the system of justice if the costs disincentive established by the Rules were to be displaced by a rule that routinely advantaged a party’s hardship in the exercise of judicial discretion over costs. I share that concern. In this case, the plaintiffs were represented by highly experienced counsel. I have no doubt that the plaintiffs were fully advised of the costs risks that they were running throughout. I decline to reduce the costs award further or to eliminate it.

[37] In my view, there are no unusual circumstances that would justify a departure from the normative approach to the award of costs. There was no evidence before me that the Plaintiffs are impecunious and they were represented by counsel who specializes in the area of medical negligence. I do not perceive the imposition of costs on the unsuccessful party ignores the principle of access to justice. While the solicitor for the Plaintiffs argues that “it would be unjust to permit a costs award in favour of the Defendants”, that assertion is not expanded upon. Hardship is not one of the factors specifically set out in Rule 57.01 that the court may consider when exercising its discretion on costs.

[38] Furthermore, I do not agree that the “vast majority” of trial time was taken up with standard of care issues. At trial, causation was a major issue and there were five experts who testified solely on the issue of causation and another two who testified on both standard of care and causation. I do not agree that from a time perspective at trial, standard of care occupied more trial time than causation did. Further, from my observation, the causation issue was more complex and challenging than the standard of care issues were. The experts retained by the Plaintiffs and the Defendants differed in their opinions on what caused Jordan’s infection, which led to the multiple surgeries and amputation of his legs and fingers. Simply put, there was a plaintiff theory on causation and a defence theory; the jury was persuaded to accept the defence theory and the opinion evidence of the defence experts.

[39] Although I accept, as counsel submits, that the issues raised during this trial were important and bona fide factual and legal issues that required adjudication, that is true of most cases that proceed to trial. That does not distinguish this case or persuade me that it is one of the “exceptional” cases where there ought not to be the usual order of costs.

[40] Mr. Embury argues that my ruling on the questions to be submitted to the jury ought to somehow factor in to my decision on costs. I disagree. Because counsel for the Plaintiffs disagreed with counsel for the Defendants on the wording of the questions to be put to the jury, I heard argument and rendered written reasons on the proper form of the jury questions. Mr. Embury indicates in his written submissions that he has appealed that decision to the Court of Appeal. In my opinion, there is no basis for the submission that this fact should persuade me to exercise my discretion not to make an order as to costs and no authority was cited for this proposition.

[41] As I have noted, the damages suffered by Jordan were catastrophic. The Hospital offered $2 million just prior to the commencement of trial, which the Plaintiffs could have accepted and pursued the Defendant Physicians at trial. The Defendant Physicians obviously were of the view that the cases against them could be successfully defended at trial both on the standard of care and on causation; they had confidence in their expert opinions. The Plaintiffs felt that they had a strong case against the Defendants on liability and damages and that they had supportive expert opinions. That is why the trial proceeded through to verdict.

[42] While the Plaintiffs were successful in establishing breaches of the standard of care against some of the Defendants, they were not successful in the lawsuit and the claim was dismissed. To echo the words of the British Columbia Court of Appeal in Brito (Guardian ad litem of) v. Woolley, 2007 BCCA 1, 63 B.C.L.R. (4th) 139, at para. 41, “[S]uccess was not divided.” Success at trial on the standard of care and failure on causation does not admit of a finding of divided success, as found by the British Columbia Court of Appeal.

[43] In considering whether the trial judge’s exercise of discretion was appropriate in depriving the successful defendants of their costs in a medical negligence action, the court in Brito noted, “… Likewise, it was an error, in my view, to base the costs order upon a finding that most of the defendants were found to have failed to comply with their duties to the plaintiffs... More than this failure is required to establish an entitlement to costs. The case was defended not just on the issue of compliance with the standard, but also on the issue of causation. The plaintiffs were required to succeed on the causation issue in order to obtain an order in their favour. They did not.”

[44] This is not a case where the plaintiff who suffered injury was unsophisticated or could be said to not understand the implications of proceeding through a complex, long trial. Jordan Sacks is educated and intelligent and worked as an accountant at the time of these events. He must have understood that if he lost at trial, he could face the payment of significant cost demands from both the Defendant Physicians and the Hospital. The fact that the case involves claims of medical negligence does not persuade me that there ought not to be the usual order of costs following the event.

[45] Mr. Embury submits that because the costs of the trial for the Defendant Physicians were borne by the CMPA and not incurred by the individual doctors, they cannot seek costs. Counsel relies on the case of Qureshi (Guardian of) v. Nickerson, 77 D.L.R. (4th) 1 (B.C.C.A.), from the British Columbia Court of Appeal. In my view, Mr. Embury’s argument on this point must fail. Qureshi was a specific fact situation which has no applicability to the case before me and which has been narrowly interpreted by appeal courts. The courts in Ontario have regularly awarded costs to defendant physicians in medical negligence claims. There would have to be reliable evidence before the court to establish that a defendant doctor had no liability to pay any costs and on the nature of the relationship between the CMPA and the doctors, before the reasoning of Qureshi would apply. If Mr. Embury’s argument were to be accepted, it would appear that defendant drivers who are involved in motor vehicle accidents and sued for damages might also be deprived of costs on the basis that the insurer pays the costs and not the individual drivers.

[46] Thus, I am not persuaded on the circumstances of the case before me that there is any principled reason for departing from the usual outcome following a trial that costs follow the event. The Defendant Physicians and the Hospital and nurses are entitled to costs on a partial indemnity scale.

What is the Proper Amount of Costs?

[47] I turn now to the consideration of what is the proper quantum at which costs should be fixed. It is my objective to fix an amount that is fair and reasonable, considering the factors set out in Rule 57.01. It must be a sum that the Plaintiffs as the unsuccessful party could reasonably expect to pay after a trial: see Zesta Engineering Ltd. v. Cloutier, 21 C.C.E.L. (3d) 161 (Ont. C.A.).

[48] While counsel for the Plaintiffs submits that I ought to consider the amount of trial time that was devoted to standard of care issues as opposed to causation issues, I am not persuaded this is an appropriate approach. As I have stated before, the causation issue was the focus of the trial and that was the subject of most of the testimony from expert witnesses.

[49] The case against the Defendants involved a time frame of several days. Regardless of the response of the Defendants to the Request to Admit that was served by the Plaintiffs, the trial would not have been shortened by any appreciable amount of time. The Plaintiffs still had to demonstrate the involvement of the various doctors and nurses to the jury and prove the individual breaches of the standard of care as well as causation. As indicated, damages were agreed upon prior to trial. It did not seem to me that there was any appreciable amount of court time wasted by counsel and the trial proceeded efficiently.

The Defendant Physicians

[50] Mr. McLaughlin was the “first chair” and argued the vast majority of the case on causation for both the Defendant Physicians and the Hospital. The hourly rates claimed by counsel are reasonable, given their respective levels of seniority. The number of hours is not excessive; I accept that there is some duplication between senior and junior counsel although this case clearly required two counsel and the division of labour between Mr. McLaughlin and Ms. Charach was appropriate. In my view, this was an exceedingly complex case with various and different allegations of negligence against a number of doctors as well as the causation issue which I have referred to earlier in these reasons. The expert opinions were dense and complicated and needed explanation for the jury.

[51] While Mr. Embury takes issue with the refusal of the Defendants to make admissions in the Request to Admit and submits that their costs demands ought to be reduced because the trial could have been shorter, I am not persuaded this is the case. I do not propose to embark on an analysis of the contents of the Request to Admit and whether the admissions ought to have been made. Suffice it to say after reviewing the submissions of the counsel on this issue, I am not satisfied different responses would have shortened the trial in any significant way. This matter proceeded with a jury and thus, the presentation was different and more time consuming than it would have been had the case been heard by judge alone.

[52] Defence counsel obtained an excellent result for their clients. In my view, taking into account the principle of proportionality as well as the factors enumerated under Rule 57.01, fees fixed in the sum of $400,000 plus taxes of $52,000 on a partial indemnity scale are reasonable and fair. The disbursements total $144,224.57. Of the items listed, the only one that seems excessive is the photocopying account of $23,719.05. I would therefore reduce the disbursements to $135,000 plus taxes of $17,550. Thus, I fix the costs of the Defendant Physicians in the sum of $604,550 all-inclusive, to reflect some measure of duplication in the work between counsel. In my view, this is a reasonable sum of costs and one that the Plaintiffs could reasonably have expected to pay for the action, if they were unsuccessful following a 6½ week jury trial.

The Defendant Hospital

[53] The role of counsel for the Hospital at trial was secondary to that of the solicitor for the Physicians. The Hospital called no expert evidence on causation but left that issue to counsel for the Defendant Physicians to deal with. The Hospital called one expert on the standard of care. The conduct of the Hospital throughout was reasonable and did not protract the trial; they made a bona fide effort to settle the case prior to trial and this must be taken into account when fixing the costs. The statements I have made concerning Rule 57.01 factors are applicable to the Hospital as well.

[54] The Bill of Costs submitted by the Hospital indicates that numerous lawyers worked on the file while only Mr. Carter and Ms. Marrison attended at the trial. This involves duplication of work and an excessive number of hours is claimed. The lawyers acting for the nurses and Hospital claim more time in trial preparation than the solicitors for the Defendant Physicians do; the reason for this is not clear, given their respective roles. There were numerous law clerks working on the file at the same time; this, too, involves duplication of work. Overall, the hours claimed are extremely high. The hourly rates are reasonable on a partial indemnity basis.

[55] In my view, given the nature of the case that had to be met by the Hospital and nurses, as well as the Rule 57.01 factors such as complexity and importance to the parties, I am of the opinion that costs fixed in the sum of $275,000 plus taxes of $35,750 plus disbursements of $63,093.54 plus taxes of $8,202.16 is a fair and reasonable amount and one that must have been within the contemplation of the Plaintiffs if they lost the case. I therefore fix costs in the sum of $382,000 all-inclusive payable to the Defendant Hospital.

Should the Costs Order Be Payable Jointly and Severally?

[56] The Plaintiffs argue that the costs order should be against the main Plaintiff, Jordan Sacks, exclusively. Reliance is placed on Boyuk v. Loblaws Supermarkets Limited. It is the law in Ontario that plaintiffs are jointly and severally liable for a costs order made against them. It is only in special circumstances that this principle would not be followed. Again, each case is fact specific and it is in the discretion of the court as to whether fairness dictates that there should be a departure from the usual order. There is nothing in the materials that have been submitted that suggests that the case before me is an “exceptional” case justifying a departure from the usual order. As the Court of Appeal stated in Winters v. Haldiman (County), 2015 ONCA 98, at para. 22, “While in some cases there have been no costs awarded against FLA claimants, there is no general rule that that should be so. The awarding of costs is a matter for the discretion of the trial judge”.

[57] The issue of the amount of costs, if any, the FLA claimants ought to pay if the Plaintiff’s action is dismissed has been considered by the court on a variety of occasions. In some cases, the court has exercised its discretion to exempt FLA claimants from liability for costs due to the derivative nature of their claims. In other cases, the liability of FLA claimants for payment of costs has been reduced to reflect their participation in the action or to make the costs paid proportionate to the size of their claims in relation to the overall claim of the injured Plaintiff.

[58] In the trial decision of Winters v. Haldimand, 2014 ONSC 5759, the trial judge considered a number of the same arguments that the solicitor for the Plaintiffs advances before me. Winters involved a case with a young plaintiff who was rendered a paraplegic as a result of a collision. The action was dismissed and counsel for the plaintiffs argued there ought to be no order for payment of costs to the successful defendant or alternatively, if there was an order, it ought to be proportional between the injured plaintiff and the FLA claimants. The court stated, at paras. 13-14:

There is case law on both sides of the impecuniosity issue. Ultimately, it is the duty of the court to strike a balance between permitting the impecunious to sue indiscriminately without any consequences to them, and preventing such litigants from pursuing legitimate claims. Some judges have endeavoured to achieve fairness by reducing the amount of costs that would otherwise have been ordered to be paid by a percentage. I am reluctant to do so based upon the limited evidence of impecuniosity to which I have already referred.

In most cases, the parties obliged to pay costs are the subject of joint and several liability in respect to those costs. There is a body of case law which exempts Family Law Act claimants from such results on the basis that their claims are merely statutory and derivitory ones. In Boyuk v. Loblaws Supermarkets Ltd., [2007] O.J. No. 732, P.M. Perell J. accepted the plaintiff’s counsel submission that “that if unsuccessful Family Law Act claimants are automatically exposed to costs, it would discourage family members from making those claims, although the legislation clearly intended that such claims are available to them”. With respect, I fail to see how this blanket approach balances the indemnity principle with concerns over access to justice.

[59] I agree that the court must consider the particular facts of a case, the nature of the FLA claims and attempt to achieve the correct balance between the principle of indemnity and access to justice. In Winters, noting the lack of evidence about impecuniosity, the trial judge ordered the FLA claimants to pay a portion of the costs order, holding that this was a reasonable and fair result. There is no evidence of impecuniosity in the submissions before me, as I have noted, and therefore, it cannot be a factor for my consideration.

[60] Shortly before trial, the damages were settled and I was not provided with the particulars of that amount. I am at somewhat of a disadvantage as I was not privy to the quantum of the assessment of the damages and there was no evidence at trial on the nature of the FLA claims. I am left, to a certain extent, to speculate on the value of these claims. While I accept the FLA claims of Mr. Sacks’s parents were not insignificant, given the devastating injuries suffered by Jordan, the assessment of any FLA claims would be modest in comparison to Jordan’s damages. I am similarly unaware of the potential value of the FLA claims of Jordan’s wife, Lisa, or whether she asserted any pecuniary losses in addition to her loss of care, guidance and companionship.

[61] In some cases, the FLA claimants drive the litigation and “call the shots”, to use colloquial language. In the case before me, however, there is no evidence as to the involvement of the FLA claimants in the litigation. At the time of these events, Jordan Sacks was an independent man, and husband and a father, living in his own home and had been for a number of years. He was working as an accountant and he was not dependent on his parents. The claims of Michael and Annette Sacks are for the loss of care, guidance and companionship pursuant to the FLA. On the facts of this case, it is fair to conclude that the quantum of the FLA claims pales in comparison with the assessment of Jordan’s damages, given his relatively young age and the nature of his injuries and resultant disabilities.

[62] In considering whether the costs order should be joint and several against the Plaintiffs, I must consider whether it is fair that the substantial costs award ought to be visited upon the parents and wife of Jordan, who asserted, properly, FLA claims in this action. The costs I have fixed are not a nominal sum; they are significant.

[63] The court observed in Greenhalgh, at para. 18:

In the circumstances, I decline to award costs jointly and severally against Jessica Greenhalgh and her parents. It would not be fair to visit unduly grave consequences on FLA claimants because they do not control the litigation ordinarily…. At the same time, I am alive to the submission that FLA claimants should not be given a free ride, especially since the FLA damages that would have been awarded if liability had been found would have been more than $90,000.00.

[64] The situation is the same in the case before me and I agree with the reasoning set out in Greenhalgh. There is no compelling reason, in my view, not to make an award of costs against the FLA Plaintiffs but at the same time, it would be unfair to order them payable on a joint and several basis. The FLA claims of Jordan’s parents and spouse were legitimate ones that were properly advanced, although their value and importance in the context of the lawsuit pale in comparison with the claims asserted by Jordan. Such claims ought not to be discouraged by the imposition of a significant costs order but at the same time, FLA claimants must know that they are not exempt from the cost provisions set out in the Rules. There was no evidence of any impecuniosity on behalf of the FLA claimants, as I have noted.

[65] One approach that has been followed to ensure fairness is to apportion a percentage of the costs to the FLA claimants based on the proportion of their claims to the overall claim. While I cannot apportion a percentage of the costs with any precision since counsel did not provide me with the damage assessments, in an effort to achieve both fairness and to adhere to the underlying principles which govern the award of costs, the FLA claimants Michael and Annette Sacks, the parents of Jordan Sacks, shall each be liable for payment of costs in the amount of $10,000 for a total sum of $20,000. The claim of Lisa Sacks would assess at a higher amount than the claims of the parents of Jordan and consequently, her contribution to payment of the costs awarded shall similarly be higher. Lisa shall be liable for payment of costs of the successful Defendants fixed at $15,000.

[66] Bearing in mind the principles that costs follow the event and that parties obliged to pay costs are the subject of joint and several liability in respect to those costs, I see no compelling reason that Lisa Sacks ought not to be jointly and severally liable for payment of costs along with her husband. Like Jordan Sacks, Lisa is an educated woman who must have known the risks of an adverse finding by the jury and the cost consequences that flow from losing the trial. I see no “exceptional circumstances” that persuade me that the usual rule that Plaintiffs are jointly and severally liable for the payment of costs ought to be departed from.

Conclusion

[67] The Plaintiff, Jordan Sacks, shall pay to the Defendant Physicians costs of the action fixed at $587,050 all-inclusive, if demanded. He shall pay the costs of the Hospital and Nurses fixed at $364,500 all-inclusive, if demanded. The Plaintiff, Lisa Sacks, shall pay to the Defendant Physicians costs fixed at $7,500 if demanded and to the Defendant Hospital and Nurses costs fixed at $7,500, if demanded, for a total sum of $15,000. The Plaintiffs, Michael and Annette Sacks, shall pay costs to the Defendant Physicians and the Defendant Hospital fixed at $10,000 for a total sum of $20,000, if demanded.

D.A. Wilson J.

Date: April 20, 2016