Court File and Parties
Oshawa Court File No.: 88729/14SR Date: 2016-05-19 Superior Court of Justice - Ontario
Re: Kelly Ann Comrie, Plaintiff (Respondent) And: Dr. Allan A. Eckhaus, Eckhaus Medicine Professional Corporation, Defendants (Moving Parties) And Between: Shelly Jardine, and Rouge Health System (Ajax and Pickering Hospital), Defendants (Not Appearing)
Before: Justice S. J. Woodley
Counsel: Sara J. Erskine and Garrett Schromm, Counsel for the Plaintiff (Respondent) Junior Sirivar and Alexandre Blanchard, Counsel for the Defendants (Moving Party)
Read: May 18, 2016
Reasons for Decision re Costs
Overview
[1] The Plaintiff, Kelly Ann Comrie, commenced a claim based on negligence, breach of fiduciary duty, and breach of contract, against Dr. Allan A. Eckhaus and Eckhaus Medicine Professional Corporation (the Eckhaus Defendants), Shelly Jardine and Rouge Health System.
[2] The Eckhaus Defendants brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action against them on the basis that there was no genuine issue requiring trial.
[3] For written Reasons for Decision dated March 1, 2016, I dismissed the claim against the Eckhaus Defendants with costs.
[4] I have now received and reviewed the costs submissions filed by the Eckhaus Defendants and the Plaintiff, including Bills of Costs.
The Law Relating to Costs
[5] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.
[6] In the present case there is no good cause to depart from the general principle and the Eckhaus Defendants are entitled to their costs. The only questions to be determined by me are the appropriate scale of costs that should be applied to the proceeding, and the appropriate costs that should be awarded in relation to the scale.
Scale of Appropriate Costs
[7] It is within my discretion to award costs on a partial indemnity basis or a substantial indemnity basis and to order that such costs be fixed or assessed.
[8] The Eckhaus Defendants seek costs on a substantial indemnity basis fixed at $54,478.25 and alternatively, on a partial indemnity basis fixed at $37,275.69.
[9] The Plaintiff submits that the costs should be awarded on a partial indemnity basis fixed at $5,000.
Basis for Scale of Costs
[10] In the course of the proceeding, the Plaintiff alleged that Dr. Eckhaus breached his fiduciary duties and “permitted and perpetuated” sexual harassment initiated by a Co-Defendant Nurse who was employed by the Co-Defendant Hospital. The Eckhaus Defendants submit that the allegations were seriously prejudicial to Dr. Eckhaus’ character and reputation and were unfounded and without merit.
[11] The Plaintiff submits she neither caused nor contributed to increase the costs of the proceeding and there are no grounds to order substantial indemnity costs. The Plaintiff further submits that the quantum of costs sought are disproportionate to the relief claimed which was limited to $100,000 and that the hours billed and time spent is not justified in the circumstances.
[12] The general default order for costs is on a partial indemnity basis. The Ontario Court of Appeal in Murano v. Bank of Montreal, 1998 ONCA 5633, 41 O.R. (3d) 222, determined that increased cost awards are available but only appropriate in special and rare cases, including cases of fraud or other allegations of improper conduct seriously prejudicial to the character or reputation of a party which is found to be totally unfounded.
[13] In Aba-Alkhail v. University of Ottawa, 2013 ONSC 6070, 14 C.C.E.L. (4th) 133, the court held that unfounded allegations of improper conduct are capable of attracting substantial indemnity costs when the allegations are seriously prejudicial to the character or reputation of the individual.
[14] In determining whether to award increased costs the court must consider all of the circumstances and, as noted by the Court of Appeal decision of Bellini Custom Cabinets v. Delight Textiles Limited, 2007 ONCA 413, 225 O.A.C. 375, where a plaintiff was not reckless or outrageous to raise the allegation the court may decline to award substantial costs.
[15] In the present case, the allegations made against Dr. Eckhaus were allegations of improper conduct including sexual harassment alleged to have occurred during an operation performed by Dr. Eckhaus while the Plaintiff was vulnerable. After considering all of the evidence presented, I found that there was no genuine issue requiring a trial and the allegations were without merit.
[16] The Plaintiff claims that it was her genuine belief that the Eckhaus Defendants by their conduct contributed to the emotional and physical harm that she was suffering and as such this type of matter does not deserve costs on an increased scale. I disagree.
[17] Doctors, and in particular plastic surgeons such as Dr. Eckhaus who perform elective surgeries, rely upon their reputations to attract patients in order to earn their living. Reputations are built slowly and with great care. Surgeons engage in lengthy study and years of careful practice to earn and maintain reputations as skilled and careful surgeons.
[18] Careless allegations made against careful study cannot be tolerated. This is especially true where the allegations are made by a member of their own profession, a nurse, who should be mindful of the importance of a professional reputation in the medical field.
[19] The allegations made against the Eckhaus Defendants were both outrageous and reckless. In the circumstances, it is appropriate that costs be awarded on a substantial indemnity basis.
Quantum of Costs
[20] The question now arises as to the appropriate quantum of costs to award.
[21] Pursuant to Rule 57 of the Rules of Civil Procedure, I am required to fix costs in all but exceptional cases. This is not an exceptional case and I will fix the costs.
[22] Counsel for the Eckhaus Defendants has provided a Bill of Costs based on substantial indemnity together with a Detailed Time Section evidencing the date, hours spent, and services rendered which outlines costs incurred of $54,478.25.
[23] Counsel for the Plaintiff has also provided a Bill of Costs based on substantial indemnity which outlines costs incurred by the Plaintiff of $46,275.27.
[24] I found the comparison of the Plaintiff’s Bills of Costs as to billing rates and time spent to be most informative and useful when reviewing and assessing the Eckhaus Defendants’ Bill of Costs.
[25] In exercising my discretion to determine the appropriate award of costs payable, I have specifically considered the issues of proportionality, complexity, and importance of the issues to the parties and have thoroughly reviewed and assessed each item listed on the Bills of Costs.
[26] Based upon my review and in accordance with the overreaching principles I have made the following adjustments to the Bill of Costs sought by the Eckhaus Defendants:
i) Item 1: Pleadings: $1815 reduction with approved fees of $4104; ii) Item 2: Discovery: $1372.50 reduction with approved fees of $3492.75; iii) Item 3: Examination: $8301; iv) Item 4: Undertakings: $750 reduction with approved fees of $1704.75; v) Item 5: Motion Preparation: $3888 reduction with approved fees of $15,393; vi) Item 6: Attendance at Motion: approved fees of $4,221.00; vii) Item 7: Preparation of Bill of Costs: $637.50; and viii) Item 8: Disbursements and HST: $2870.58.
Disposition
[27] Based on the foregoing, I hereby award costs to the Defendants Dr. Allan A. Eckhaus and Eckhaus Medicine Professional Corporation payable by the Plaintiff Kelly Ann Comrie on a substantial indemnity basis fixed at $45,645.60, inclusive of HST and disbursements, payable within 90 days of the date herein.