Court File and Parties

Court File No.: CV-12-448472 Date: 20160621 Superior Court of Justice - Ontario

Re: CAROLE LYNNE CROMPTON and ROSS EDMUNDS, Plaintiffs And: THE CITY OF TORONTO, Defendant

Before: Madam Justice Darla A. Wilson

Counsel: Kate Cahill, Counsel for the Plaintiffs Scott Jones, Counsel for the Defendant

Heard: June 7, 2016

Endorsement on costs

1The Plaintiff Carole Lynne Crompton [“Crompton”] brings this action for damages resulting from a trip and fall she alleges occurred on a sidewalk owned by the City of Toronto [“the City”] on April 20, 2010.

Background

2It is the position of the Plaintiffs that the City was negligent because the area where Crompton fell was uneven; there were depressions and tripping ledges. Crompton retained counsel and a notice letter was sent to the City on July 26, 2010. A Statement of Claim was issued on March 9, 2012. The City delivered its Statement of Defence on August 2, 2012. In its pleading, the City stated that the action was statute-barred for failure of the Plaintiffs to deliver a notice letter within 10 days of the accident, in contravention of s. 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. Paragraph 9 of the Statement of Defence pleads that the City has been prejudiced in its defence of the action because of the failure to give timely notice.

3Sworn Affidavits of Documents were delivered by the parties in 2013 and the examinations for discovery proceeded thereafter. The Affidavit of Documents of the City did not contain any material detailing complaints lodged about the area where Crompton fell or any inspections by the City in the months following the fall. The discovery of the representative of the City was completed on April 24, 2013. During that discovery, the solicitor for the Plaintiffs asked for particulars of the prejudice as alleged and the solicitor for the City refused to answer the questions. Instead, he said that he would set out the particulars of the prejudice in a motion for summary judgment or perhaps in a mediation brief.

4On August 14, 2014, the City confirmed it intended to bring a motion for summary judgment on the notice issue. On September 25, 2014, the City delivered a Fresh as Amended Affidavit of Documents which contained some additional documents which had not been produced at the time of the discovery. A Service Request form dated July 17, 2010 was listed, which confirmed that a resident in the area had called to report that the “uneven sidewalk requires repair, people have been tripping and falling in this area”. An inspector attended on July 19, 2010 and inspected the area and noted there were “loose pavers at tree, area safe.” There was an email produced dated July 21, 2010 from the city councillor’s office indicating someone had fallen in the area around the tree. The email requested someone from the City attend and review the scene to prevent other pedestrians from falling due to the depression in the sidewalk. Another Service Request form dated July 22, 2010 was produced, confirming the inspector attended at the scene, noting the area had sunk and asphalt was required. Measurements were taken. The area around the tree had asphalt applied on July 22, 2010.

5The Summary Judgment materials were served on March 9, 2015. The affidavits of the city employees filed in support of the motion deposed that the area was reconstructed between the time of the City’s discovery in 2013 and the time of the Summary Judgment motion; specifically, the sidewalks were replaced sometime in 2014.

6The solicitor for the Plaintiffs brought a cross-motion on the same date, requesting an order that the Plaintiffs’ action was not barred by the late notice because Crompton had a reasonable excuse and there was no demonstrable prejudice to the City. These motions were returnable March 11, 2016. That date was adjourned to May 10, 2016 and on April 13, 2016, the City advised it was withdrawing its Summary Judgment motion. As a result, the Plaintiffs seek the costs incurred for the preparation of their responding materials.

Positions of the Parties

Plaintiffs

7The Plaintiffs seek payment of costs on a substantial indemnity basis. Ms. Cahill submits that the Plaintiffs were faced with a motion that could potentially deprive them of their ability to seek compensation for the injuries sustained by Crompton as a result of her fall, so much time and expense was incurred in drafting materials and seeking various affidavits.

8Counsel drew the court’s attention to the affidavit of Crompton sworn January 13, 2016 in which it is deposed that when she fell, the Plaintiff hit her head on the sidewalk and unbeknownst to her at the time, the force caused a traumatic chronic subdural hematoma in her brain. In para. 4 of her affidavit she states:

As described to me by my physicians, my understanding of this condition is that the trauma caused a bleed in my brain. The bleeding was slow, but as the blood accumulated it put increasing pressure on my brain. In turn, this caused me to develop slowly worsening neurological and cognitive deficits, including: headaches; confusion; dizziness; memory loss; blurred vision; weakness; and garbled speech. I was not diagnosed with a chronic subdural hematoma until June 30, 2010. Following this diagnosis, I underwent a craniotomy…. Since I did not know that I had sustained a brain injury as a result of my fall, and I believed that my fracture and knee injury would heal, I did not know that I had an actionable loss for which the City could be found liable. Furthermore, after my brain surgery, I put the City of Toronto on notice of my fall as soon as I felt well enough to deal with this matter, which was on July 27, 2010.

9Counsel for the Plaintiffs submits that the City failed to include the documents dealing with prior complaints about the area where the Plaintiff fell as well as inspections and measurements that were done in the same time frame, and remedial work. No proper explanation has been offered for this failure and at the same time, the City was alleging prejudice had been suffered due to the failure of the Plaintiffs to deliver a timely notice when these documents actually confirmed there was no prejudice. Furthermore, when asked at discovery to articulate the alleged prejudice, the solicitor for the City refused to answer the question. Ms. Cahill argued the conduct of the City in bringing a Summary Judgment motion given these facts constitutes an abuse of process and justifies a higher level of costs.

Defendant

10Mr. Jones submits that the costs issue ought to be addressed by the trial judge. While he acknowledges the records from the 311 call and the information concerning complaints made and inspections carried out ought to have been contained in the original Affidavit of Documents of the City, counsel was not aware of them and once they were brought to his attention, a further Affidavit of Documents was served in September 2014, well before the Summary Judgment motion, and counsel offered to produce the representative at a further limited discovery.

11Mr. Jones argued that it was reasonable to bring the Summary Judgment motion as the City did not have evidence that the Plaintiff was incapable of providing notice; the first time the City was aware of the reason the Plaintiff did not deliver a time-compliant notice was when counsel received the responding materials for the motion. If the court is inclined to award any costs to the Plaintiff they ought to be on a partial indemnity rate, perhaps in the $10,000 range.

Analysis

12Rule 37.09(3) of the Rules of Civil Procedure, O. Reg. 147/16, provides that where a motion is abandoned, the responding party is entitled to costs of the motion forthwith, unless the court orders otherwise. In this case, following discoveries, the City decided to proceed with a Summary Judgment motion on the basis of the failure to provide notice within the time prescribed, that is, 10 days.

13Summary Judgment motions have become wildly popular in Toronto, for reasons which are not entirely clear. The Rules have always permitted the bringing of Summary Judgment motions, intended for the cases where there is no genuine issue requiring a trial, to use the current language. The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, refined and clarified when these motions should be brought in order to achieve a “fair and just adjudication” of a case. There are some cases that do not require a trial in order to ensure that a fair hearing can be secured. As the court noted, at para. 33, “The question is whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication.” Not every case is appropriate for a Summary Judgment motion; it is a question of judgment of counsel as to what the best method of resolution is, given the issues and the evidence.

14In the case before me, for the Plaintiffs to overcome the notice requirement under the City of Toronto Act, Crompton must demonstrate that she has a reasonable excuse for not providing notice within 10 days and that the failure to do so has not prejudiced the City in its defence of the action.

15In my view, the decision to bring the Summary Judgment motion in this action was ill-conceived. The fall occurred in 2010, pleadings were delivered in 2012, discoveries occurred in 2013 and the action was then set down for trial in July 2013. The motion was served in March 2015. I have read the motion materials of the City; the grounds set out for the motion are inaccurate and, in my opinion, somewhat misleading. The notice of motion states that the Plaintiff suffered a fractured thumb as a result of the fall of April 20, 2010. Furthermore, the motion goes on to state that as a result of the failure of the Plaintiff to deliver a notice letter within 10 days of her fall, the City did not investigate the site of the fall prior to repairs being done on July 22, 2010. It is asserted that the failure to provide timely notice prejudiced the Defendant in its defence of the claim and the Plaintiff did not provide a reasonable excuse for her failure to comply with the time requirements under the City of Toronto Act. Finally, it is submitted that, “A dismissal of this action by way of summary judgment will serve the most just, expeditious and least expensive determination of the action on its merits.” None of this is accurate, according to the evidence before me.

16I agree that a Summary Judgment motion seeking to dismiss a Plaintiff’s claim for failing to provide notice according to the statute is a serious motion which requires carefully prepared materials in order to defeat the motion. While the solicitor for the City argued that the Plaintiffs brought their own motion for Summary Judgment, this is an irrelevant consideration on the issue of costs for the abandoned Summary Judgment motion of the City. I say this because the Plaintiffs filed a responding motion record to the City’s motion and in their motion, the Plaintiffs sought a determination from the court on the notice issue. To put it another way, the Plaintiffs were forced to file responding materials to the City’s motion and they chose to include in their materials a cross motion which, in reality, sought to have the court pronounce on the issue of whether or not the Plaintiffs’ action was statute barred. In the factum delivered by the City for the costs issue, it is acknowledged that the Plaintiffs’ cross motion contains the same subject matter as the City’s motion. Thus, it is not the sort of situation where the Court might consider the time spent by counsel for the City on the Plaintiffs’ cross motion as a set off against the costs awarded to the Plaintiffs for the abandoned Summary Judgment motion.

17I would not have thought on a motion to strike a claim for lack of timely notice there would be much dispute about the facts; rather, the argument would turn on whether the Plaintiff could establish on the evidence that there was a reasonable excuse for the failure to provide notice and if so, whether there was prejudice to the Defendant. However, reading the motion records of the two parties would lead the reader to believe the motions related to different claims.

18As I have indicated, the Summary Judgment materials of the City contain numerous inaccuracies. It is stated that the Plaintiff sustained a fractured thumb in her fall. While this is true, that injury is modest compared to the brain bleed that she suffered. The City knew that the Plaintiff had suffered a brain bleed requiring surgery in the form of a craniotomy from an early date. In fact, Crompton met with an adjuster at the City of Toronto on September 17, 2010 and provided him with a detailed statement at that time (exhibit Q to her affidavit) in which she described her medical course from the time of the fall, including her attendances at the emergency department of the hospital, her referrals to a neurologist and a neurosurgeon and eventual brain surgery. While the Plaintiff had a number of symptoms of cognitive disturbance following the fall, she was not advised she had suffered a chronic subdural hematoma until June 30, 2010, a date well past the ten day notice deadline.

19The City knew she suffered this injury from an early point; they could not have thought the claim was restricted to a fracture of Crompton’s thumb. I do not accept the submission that it was only after receipt of the responding materials on the Summary Judgment motion that the Defendant was apprised of the reason for the delay in providing notice. The post-fall course was detailed in the statement of the Plaintiff provided in September 2010 and would have been the subject of questions at her examination for discovery. In my view, from an early date, the City had the information that set out the reason for the failure of the Plaintiff to provide notice of her fall within 10 days.

20The law is clear that the courts have interpreted “reasonable excuse” in a broad and liberal manner at trial: see Crinson v. City of Toronto 2010 ONCA 44, 100 O.R. (3d) 366. In that case, the court stated, at para. 22:

The modern jurisprudence interpreting such language has emphasized, not surprisingly, that the words “reasonable excuse” should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has indeed established reasonable excuse. [Citations omitted.]

21An important ground for the City’s motion was the alleged prejudice that resulted to the Defendant from the late notice. This is often a critical point in motions to dismiss because one of the objectives in requiring an injured person to notify the City of the alleged negligence giving rise to the injury is to enable the City to investigate what conditions existed at the time which may have caused or contributed to the injury, in order to properly defend the action.

22In this case, the Defendant stated in its motion materials that as a result of the lack of timely notice, it lost the opportunity to investigate the site before repairs were made. That is not accurate. In fact, in the documents disclosed only after the discovery of the City representative, it became clear that there were complaints about the condition of the area where the Plaintiff fell on July 17, 2010 and on July 21, 2010. Measurements of the depression in the sidewalk were taken by Giuseppe Burdi on July 22, 2010 and work was done on that date to remedy the situation.

23At the examination for discovery of the City representative held April 24, 2013, Ms. Cahill asked for particulars of the prejudice alleged by the lack of timely notice. That question was refused by the solicitor for the City. Instead, he advised that such particulars would be contained in the Summary Judgment materials or alternatively, in the mediation brief. One of the purposes of an examination for discovery is to provide information to the opposing party and counsel as to the evidence in support of a party’s position. Since the City was taking the position that the Plaintiff’s claim was barred for lack of timely notice, when counsel asked at discovery for particulars of the prejudice, that information should have been provided. Even if counsel was unaware at the time of the discovery of the documentation concerning the prior complaints and the attendance of Burdi, the question ought to have been answered based on the information in the possession of the City at that time, and then updated when the additional documentation was produced. Counsel have a positive obligation to provide information and particulars in support of their case at the time of discovery. To play “cat and mouse”, particularly if counsel intends on bringing a Summary Judgment motion, is not acceptable. Such conduct is of no benefit to the parties and prevents counsel from properly evaluating a client’s case. In the case before me, if counsel for the City felt he could persuade a court that his client was actually prejudiced by the late notice of the Plaintiff’s claim, he ought to have explained the reasons for this view to counsel when she asked at the discovery. To withhold that evidence for a later day to serves no useful purpose.

24I reject the submission of the solicitor for the Defendant that it was somehow incumbent on counsel for the Plaintiffs to bring a motion on the refusal of counsel to provide particulars of prejudice. In my view, it was an improper refusal; unnecessary motions are to be discouraged. The decision of the solicitor for the Plaintiffs to set the action down for trial was reasonable.

25On the issue of the late disclosure of relevant documents, I accept Mr. Squires’s statement at para. 10 of his affidavit affirmed June 3, 2016 that he did not know at the time of the discovery of the complaints about the accident site or that Burdi had attended and taken measurements in response to one of the complaints. It is, however, difficult to understand how the City, a sophisticated party that is familiar with the litigation process, could fail to produce relevant documents to their counsel when requested to do so in order to prepare an affidavit of documents.

26What is perplexing to me is why, after delivery of the Amended Affidavit of Documents with the additional productions, the City persisted with the motion for Summary Judgment alleging prejudice in the face of the new evidence. This question is not addressed in the affidavit material; nor is there a satisfactory explanation for the later decision to withdraw the Summary Judgment motion. Rather, the Squires affidavit says simply, “Ultimately, I formed the opinion that this was a matter that was better suited to a determination at trial on a full evidentiary record.” In my view, there was nothing new in the materials filed by the Plaintiffs in response to the motion that amounted to a “change in circumstances” as deposed in the affidavit of Mr. Squires. Furthermore, I do not accept that there was a change in the law arising from the Seif v. Toronto (City), 2015 ONCA 321, decision, as submitted by the solicitor for the City.

27Rather, the particular facts of this case made it highly unlikely a court would grant Summary Judgment on the notice issue. On a Summary Judgment motion, the court must be satisfied on the evidentiary record that is no issue requiring a trial in order to grant judgment. The unusual evolution of Crompton’s medical condition together with the lack of evidence of any demonstrable prejudice made the chance of success on the Summary Judgment motion remote.

28The late production of documents from the City which confirmed an absence of prejudice should have made the City reconsider proceeding with a Summary Judgment motion. It did not and the Plaintiffs had no option but to put together extensive materials in response to that motion.

29The responding record includes a lengthy affidavit from Crompton detailing her medical course after the fall. There is an affidavit of a store-owner in the area where Crompton fell, which sets out the condition of the sidewalk in the area around the time of the fall, including photos. There is an affidavit of an engineer, and another from a neuropsychologist offering an opinion on Crompton’s brain injury and deficits. The responding materials are comprehensive and impressive. In my view, they were necessary in order to respond to the Summary Judgment motion.

30The launching of the Summary Judgment motion was ill-conceived; persisting with it, particularly after receipt of documents from the City which constituted evidence of a lack of prejudice arising from the late notice, was fraught with risk. That was the course the City chose to follow and as such, they must pay costs. For the reasons I have set out, the proper scale of costs is on a substantial indemnity scale. There was a great deal of time to reconsider the wisdom of proceeding with the motion between when the City’s motion was served and when it was abandoned. The position of the City did not change until after the time and expense had been incurred by the Plaintiffs for the preparation of the responding materials.

31I turn now to the quantum of those costs. As I stated in Sacks v. Ross, 2016 ONSC 2498, at paras. 20-21, 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) of the Rules of Civil Procedure (made under the Courts of Justice Act, R.S.O. 1990, c. C.43): see Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 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, Epstein J.A. stated at para. 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 (2004), 71 O.R. (3d) 291, (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.”

32I 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.

33I have reviewed the costs outline of Ms. Cahill, along with the factors set out in Rule 57.01. The Plaintiffs seek fees of $34,753.15 on a substantial indemnity scale, inclusive of GST. Ms. Cahill has been at the Bar since 2005 and her hourly rate is reasonable. She is the only lawyer who worked on this motion; the only other time claimed is that of a student. The disbursements total $4,542.17. In my view, given the facts of this case, the sum of $35,000 inclusive of fees, disbursements and taxes is a fair and reasonable amount, and is proportional in all of the circumstances. I fix the costs of the abandoned Summary Judgment motion in that amount, payable by the Defendant to the Plaintiffs.

D.A. Wilson J.