Zaravellas v. TTC, 2016 ONSC 8146

CITATION: Zaravellas v. TTC, 2016 ONSC 8146

COURT FILE NO.: CV-05-CV-295522

DATE: 20161220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MIKE ZARAVELLAS

Plaintiff

– and –

TORONTO TRANSIT COMMISSION

Defendant

Daniel J. Holland and Silene M. Malhao, for the Plaintiff

Chad Townsend and Stephen Sargent, for the Defendants

HEARD: December 18, 2016

S.A.Q. AKHTAR J.

costs judgment

[1]

Background

Mike Zaravellas brought an action for negligence against the Toronto Transit Commission (“TTC”) arising out of an incident that occurred on 30 August 2003. He claimed that the premature closing of a TTC bus door caused an injury to his wrist which led to serious complications later made worse following a fall after taking a shower in his apartment. His claim failed and the allegations were dismissed in their entirety. The TTC now seeks costs of the action.

[2]

Substantial Indemnity Costs

This was a lengthy case in which the vast number of witnesses were medical and psychological experts. The TTC seeks substantial indemnity costs based on a number of findings I made in dismissing the plaintiff’s allegations including:

• The plaintiff’s numerous deceptions when making his application to the TTC in 2002

• The plaintiff’s false complaints of pain which allowed him to avoid work and mount an unmeritorious claim against the TTC

• The inaccurate information given to the numerous health professionals who were called to testify at trial to be successful at trial

• The numerous fabrications of pain, disability and the actions behind the plaintiff’s single motive: to be compensated without ever having to work.

[3]

Rule 49 Offer to Settle

The TTC also relies on an offer to settle made on 18 September 2015, pursuant to Rule 49 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, where the TTC offered full and final settlement in the amount of $70,000 plus costs and disbursements. The TTC’s offer was increased to $100,000 at a judicial pre-trial held on 16 November 2015.

4Rule 49.10 of the Rules reads as follows:

Plaintiff’s Offer

49.10 (1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

Defendant’s Offer

(2) Where an offer to settle,

(a) is made by a defendant at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.

5The TTC requests that the plaintiff’s actions combined with their offer to settle, should result in the award of substantial indemnity costs.

[6]

Analysis

Rule 49.10 does not permit the award of substantial indemnity costs to a successful defendant. In Davies v. Clarington (Municipality), 2009 ONCA 722, it was held that such costs were appropriate only where there is “a clear finding of reprehensible conduct on the part of the party against which the cost order is being made.”

7Despite my findings that the plaintiff in this case fabricated his claims in order to obtain compensation, I do not find his conduct in proceeding with the case to rise to the level described by the Court of Appeal. The offer made by the TTC has no real effect in this case as they were the successful party and are entitled to costs of the action in any event. Accordingly, the TTC’s request for elevated costs is dismissed.

8Cost awards are guided by the principles of Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, and are not the result of a mathematical exercise but a reflection of reasonableness. Overall, I am required to consider what is “fair and reasonable” in fixing costs, balancing the interests of compensation to the successful party with the goal of ensuring access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

9Turning to the amount of partial indemnity costs to be awarded, the plaintiff argues that the costs sought are excessive and much of the preparation claimed by the TTC is exaggerated in light of the lack of complexity of the matters at issue. I disagree with this submission. As I have already noted, the case consisted, in large part, of expert witnesses called by both sides to support or defeat the proposition that the plaintiff had suffered long lasting and serious physical and mental health issues as a result of the accident with the TTC streetcar on 30 August 2003. This was hardly a straight forward matter.

10In my view, the partial indemnity costs claimed by the TTC is a fair and reasonable amount.

[11]

Disposition

Accordingly, I order costs in the amount of $193,043.98, all inclusive, be paid by the plaintiff to the TTC forthwith

S.A.Q. Akhtar J.