Court File and Parties

COURT FILE NO.: CV-11-681-00 DATE: 20160825 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOMINICK ALEKSA A MINOR, by his Litigation Guardian, Nicole Pickett, NICOLE PICKETT and JERRY ALEKSA, Plaintiffs

AND:

JORDAN HENLEY, MARLENE HENLEY, WARREN HENLEY, and THE CORPORATION OF THE TOWNSHIP OF SEVERN and THE LION’S CLUB OF COLDWATER and LE GROUPE SPORTS-INTER PLUS INC. and ONTARIO GYM & SPORTS INSTITUTIONAL SPORTINGS GOODS, Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: Brennan Kahler, for the Plaintiffs Ashley Goren-Gibson, for the Defendant, The Corporation of the Township of Severn

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This endorsement on costs follows this court’s dismissal of a motion brought by the defendant, the Corporation of the Township of Severn (“Severn”) for an order requiring the plaintiffs to provide them with an unedited version of a witness’ videotaped statement (2016 ONSC 4014).

[2] I have received and reviewed written submissions on costs filed by Severn and the plaintiffs, including their respective cost outlines.

[3] As the successful party, the plaintiff seeks costs on a substantial indemnity basis in the sum of $12,633.39. In support of their claim for costs on this higher scale, the plaintiffs rely on a written offer made to Severn four days prior to the argument of the motion. The offer invited Severn’s counsel to view the videotaped statement of the witness, without waiving the plaintiffs’ claim for privilege, and on an undertaking not to use the content of the video to cross-examine the witness at trial. Severn declined that offer.

[4] The offer does not comply with rule 49.10, as it was served on May 9, 2016 and the motion was argued on May 13, 2016. Nonetheless, I find that it was a genuine effort made by the plaintiffs to settle the motion, offering more to Severn than had been extended to it in the past, and which, had it been accepted, would have put Severn in a more favorable position than the outcome of the motion. Pursuant to rule 49.13, I find that this offer should be taken into account, such that the plaintiffs shall have their substantial indemnity costs from the date of the offer.

[5] Several steps were taken after the offer was made. Severn served a supplementary motion record on May 10, containing a four-page affidavit with nine exhibits, and a nine-page supplementary factum on May 11, which contained short excerpts from examination for discovery transcripts and case law. In response, plaintiffs’ counsel prepared and served a very brief (essentially two paragraphs) supplementary statement of law and book of authorities. Although the cost outline submitted on behalf of the plaintiffs does not break down the work by dates, I must attribute some of the work and costs leading up to the argument of this motion to those steps taken after May 9.

[6] Having regard to the factors listed in s. 57.01(1) of the Rules of Civil Procedure, R.S.O 1990, c. C. 43, in addition to the result and the offer to settle I consider the following:

• As admitted by Severn in its own costs outline, this motion involved a medium-high level of complexity involving several legal principles;
• The outcome of this motion does not particularly impact any of the central issues to be decided in this case, lessening its importance to the issues being litigated in this case. Generally, however, the protection of litigation privilege is of high importance to the conduct of any action;
• The motion was unnecessary. Severn submitted that it was necessitated by the fact that, due to discrepancies between the contents of the will-say of the witness, and what had been viewed on the video by counsel for the co-defendants, Severn was unaware of what the witness was expected to say at trial. How having the video in hand could alter that state of affairs is difficult to understand. Its contents had already been summarized by counsel for the co-defendants, who had been permitted to watch it. That summary was given to Severn. Severn had the opportunity to watch the video, albeit edited, but declined to do so. Further, Severn could have made its own inquiries with this witness, but there was no evidence that this was done before bringing the motion. But at the end of the day, no one knows what a witness will say while testifying at a trial, particularly a child witness who is attempting to remember something that occurred seven years ago. Watching the video would offer no reassurance of what the witness’ testimony might ultimately be. And if the point of the motion was to watch the video with a view to settling liability issues, then the offer extended by the plaintiffs should have been accepted.
• The lead counsel for the plaintiffs was called to the bar 15 years ago and the associate lawyer assisting was called to the bar five years ago;
• The reasonable expectations of Severn for the costs of this motion are revealed by its own counsel’s costs outline, which indicates that the actual costs to the client for the motion were $11,284. At a partial indemnity rate, the amount is $6,770. Both amounts are inclusive of HST. The costs on the lower scale closely align with the amount set out in the plaintiffs’ costs outline.

[7] As indicated before, the plaintiffs will not receive substantial indemnity costs in relation to all aspects of this motion, but only those steps taken after the offer was served. That amount must be estimated, but it is some percentage that is less than 50 per cent of the total time expended. Accordingly, a reasonable sum leading up to the argument of the motion would be between $5,347 and $9,879. Counsel’s fees for attendance on the motion will be awarded on the higher scale. Factoring in the disbursements and HST, those costs are estimated to be $9,500.

[8] In Boucher v. Public Accountants Council (Ontario), Justice Armstrong held that the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. Courts fixing costs are required to give further consideration to quantum. At para. 24 of Boucher, Justice Armstrong directed that “it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” He reiterated what the Court of Appeal said in Zesta Engineering Ltd. v. Cloutier, 164 O.A.C. 234 (Ont. C.A.), at para. 4:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[9] These authorities require that I step back to assess whether the cost claimed are fair and reasonable in the circumstances. Given all of the factors and considerations outlined above, I am satisfied that an award of costs in the amount $9,500 is fair and reasonable for this particular motion.

[10] This court orders that Severn shall pay to the plaintiffs their costs of the motion fixed in the amount of $9,500 and payable in 30 days.

HEALEY J. Date: August 25, 2016