CITATION: Wensley et al. v. Xu et al. 2016 ONSC 843
COURT FILE NO.: 09-CV-392277
HEARD: January 28, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Wensley et al. Plaintiff v. Xu et al. Defendants
BEFORE: Master Haberman
APPEARANCES: Honnet, A. for moving party Baum, E. for responding party
REASONS FOR DECISION
[1] Frances Wensley moves to have her action traversed to Small Claims Court. Tom Wensley, an FLA claimant, seeks leave to discontinue his claim. Tom’s portion of the motion is not opposed. He is therefore granted leave to discontinue his FLA claim, without costs.
[2] Up until the hearing of the motion, it appeared that the relief sought by Frances would be opposed. It was only on the return of the motion that it became apparent that all that really separates the parties is the matter of costs in two contexts. The defendants now seek costs thrown away, which they calculate to be $6233.62. They also seek immediate payment of Balaban J’s February 2015 cost order, made in their favour in any event of the cause following their success on a motion for partial summary judgment.
[3] The motion arises in the context of a claim of dental malpractice against Dr. Xu, the only remaining defendant in the action. As matters stand, Frances claims damages in excess of $1 million based on root canal work the dentist performed on her in 2008, for which this action was commenced the following year.
[4] Although not directly referred to in the pleading, one of the major aspects of the claim became whether the facial lesions developed by Frances were attributable to Dr. Xu’s work. By Request to Admit of October 2, 2014, the defendant sought an admission that Dr. Xu did not cause or contribute to the development of this skin condition. A few days later, Frances responded that she was not prepared to agree with that assertion.
[5] A month or so later, on November 21, 2014, the defendant served the report of Dr. Sameh Hanna, in which he opines that the skin lesions are either folliculitis or furunculosis, unrelated to any work that Dr. Xu had performed. On that basis, counsel asked that the plaintiff agree to abandon that portion of her claim, advising that if no response was received by December 8, 2014, they would proceed with their partial summary judgment motion and seek costs.
[6] The threatened motion proceeded before Belobaba J. on February 23, 2015, and it was granted, as there was no medical report filed to refute what the defence expert had stated. His Honour ordered costs fixed at $4500, $2000 to be paid by the two plaintiffs forthwith, the remaining $2500 to be paid by them in any event of the cause.
[7] Defence counsel takes the position that if I move the matter to Small Claims court now, his client will lose the benefit of the deferred cost order, as the lower court will not be able to enforce it and this action will have disappeared. After some discussion, counsel agreed that while I could not make an order to vary a cost order made by a judge, they could still preserve the order by way of written agreement as between themselves.
[8] As a result, the only impediment left was the costs thrown away. In that regard, Frances acknowledged that the case law is clear and that she would have to pay them, but only those that were, in fact, costs thrown away.
[9] The quantum sought by Dt. Xu is in excess of $6000. Instead of a cost outline, providing a detailed explanation of how these costs were incurred, there is a chart contained in the moving counsel’s affidavit. In his submission, everything done in this action has been wasted as it will either have to be redone in Small Claims Court or would not have been necessary had they started in that court.
[10] I do not agree with that statement in its totality. The pleadings are the pleadings and will remain the same, aside from removal of the FLA claimant and his claim.
[11] Defence counsel claims they would not have had to prepare an affidavit of documents had the matter proceeded in Small Claims Court and that their documentary disclosure obligations would have been of a lesser nature, restricted only to those documents they rely on. They brought no law to demonstrate that this was the case, nor provided any evidence to indicate there was anything they did produce that could have been omitted.
[12] While clerical staff likely put the affidavit of documents together, I was given no indication of its size or how long it took. Simply stating that 1500-2000 pages were produced is not helpful – these pages could have all been part of a single entry, such as hospital records for a single admission, or each could have been a separate document.
[13] Counsel would have had to review the actual documents produced in any event to ensure relevance and check for privilege. I therefore do not find that the $492.31 sought for the first item in the chart has been justified.
[14] With respect to the second item, $316.97 for negotiating various status hearing and timetable orders, I note that the action was dismissed for delay and the defendant agreed to set the dismissal order aside. That involved negotiation of a new timetable by counsel. I have not been told who performed this work or what their actual rate would have been at this time for this client. I am prepared to allow no more than $250 for this item.
[15] A further step for which a claim is advanced is described as numerous letter, emails and telephone calls to the Plaintiff’ counsel requesting payment of outstanding “forthwith” cost award, obtaining instructions. The figure sought for this step is $874.62. The explanation for how it grew to this size is, in part, explained in the paragraphs of the responding motion record that precede it.
[16] At paragraph 16, the deponent states that numerous requests were made for the forthwith portion of the February 23, 2015 order. Then, rather than paying the costs as ordered, the plaintiffs sought to vary it so that only Frances would be liable for payment. Belobaba J. convened a telephone case conference on September 11, 2015, at which time he met no opposition so agreed to revise the order as sought.
[17] When costs were still not paid by November 2015, a motion to stay the action pending payment was booked for January 28, 2016 (this date is confirmed by the case history, as opposed to January 28, 2015 which appears at paragraph 19 of the responding affidavit). Payment was made by undated cheque on December 18, 2015. It appears that what is sought for this step is therefore justified as this involved far more than simply calling and/or writing for payment.
[18] I therefore accept that Dr. Xu should be paid costs thrown away of $874.62 for efforts made to get the costs paid as ordered.
[19] That leaves the remainder of the chart, entitled Responding to plaintiff’s motion returnable January 28, 2016. In effect, the defendant seeks the costs of this motion, inclusive of their attendance. I have difficulty with this.
[20] There is no question that courts before me have required a plaintiff to pay costs thrown away up front before they were permitted to move their action to a lower court (see May v. Hutchinson [2013] OJ. No. 5962; Lamarche v. ING Insurance Co. of Canada, [2012] OJ No. 3248). The question is whether the costs of arguing this motion should be included in “costs thrown away”.
[21] In my view, that is an issue that will vary with each case. As matters turned out, it was a fairly simple matter to resolve the issue of how and when the defendant would be paid the $2500 deferred cost order made by Belobaba J. Had there been discussion, this simple issue should have been easy to resolve. Thereafter, the only issue left would have been what “costs thrown away” was comprised of, again, something that should have been easy to resolve, absent this component.
[22] There was no discussion, however, and based on my reading of the correspondence, this is the result of the defendant having taken a very tough position with respect to this motion from the outset, stating is position and leaving little room for negotiation of this motion.
[23] The proposal to move the action to Small Claims Court was first proposed by Wensley’s counsel in a telephone conversation with defence counsel on April 22, 2014. At that time, he indicated that if there was no link between the alleged malpractice and the skin lesions, the matter should be transferred to Small Claims Court.
[24] After receipt of the defence medical report in November 2014, and in view of the fact that they had nothing with which to counter it, Wensley’s counsel again proposed that the matter be moved to Small Claims Court. In an e-mail dated January 19, 2015, he suggested that the summary judgment motion be argued at the beginning or end of the trial in the lower court. Alternatively, he indicated his client was prepared to settle the case for $20,000. In response, defence counsel said he would agree to a without costs dismissal of the action in its entirety.
[25] On January 15, 2015, Wensely’s counsel again spoke with defence counsel and this time proposed that the matter be moved to Small Claims Court instead of the defence bringing their motion for summary judgment. This was viewed as a “with strings” proposal and refused.
[26] By his response of January 29, 2015, it appears the major stumbling block from the defendants’ perspective is that they had already prepared for the summary judgment motion and had already incurred costs in doing so. As a result, the proposal from the defence was that the plaintiff consent to partial summary judgment and pay costs thrown away of $5000 (which turned out to be $500 more than they were ordered to pay). Even then, however defence counsel stated that his client was not inclined to move the matter to Small Claims Court.
[27] It appears from all of the foregoing that, while the defendant was willing to negotiate resolution of their motion for summary judgment, they were not prepared to consider a counter proposal for the plaintiff’s motion to move the matter to Small Claims Court. They had several opportunities to discuss terms, to propose what they wanted, but it simply never happened. Instead, they shut down the conversation by making it clear that they were not inclined to agree or, in fact, to discuss it further.
[28] While moving an action to a lower court is an indulgence, such that the moving party would generally not succeed in a request for costs that does not mean that a party who opposes such a motion and effectively does not succeed is automatically entitled to their costs. This approach encourages unnecessary court proceedings that are unwarranted.
[29] This is all the more so in this case, where the amounts in issue were insignificant and terms could have been easily resolved if counsel had been open to talking. I am therefore hard pressed to accept that the defendant should have their costs of this motion, when at the end of the day, it all came down to a matter of terms involving very small sums of money, all of which could have easily been resolved months ago.
Accordingly it is ordered as follows:
The plaintiff has leave to move this action to Small Claims Court after (1) paying costs thrown away, fixed at $1124.62 and (2) agreeing in writing that they will pay the $2500 awarded by Belobaba J. within 30 days of the conclusion of the action, by trial or settlement.
There shall be no costs of this motion to either party. The offer to move it to Small Claims Court came late in the day and with many strings attached until most recently. In my view, this is the order that is fair to both parties.
Date: February 2, 2016 Master Joan M. Haberman