Court File and Parties

Court File No.: 26898/15 Date: 2017-03-02 Ontario Superior Court of Justice

Between: DONNA SUTHERLAND, EARLE SUTHERLAND AND JONATHAN SUTHERLAND and CLIFFORD SUTHERLAND Plaintiffs – and – SAULT AREA HOSPITAL, KAREN BOOTH, AARON PROVENZANO and KAREN DINTER Defendants

Counsel: Peter Denton, for the Plaintiffs Wayne Brynaert, for the Defendant Karen Booth Lisa Spiegel, for the Defendant Sault Area Hospital and Karen Dinter

Heard: written submissions

GAREAU J.

Reasons on Costs

[1] On January 30, 2017 I released a decision dealing with a motion brought by the plaintiffs arising from refusals given by the defendant Karen Booth on her examination for discovery conducted on July 12, 2016 and subsequent answers given in writing by that defendant to some of the questions she refused to answer on discovery.

[2] The motion was disposed of by an order that the defendant Karen Booth answer in writing 3 of the 13 questions refused on discovery. The plaintiffs request that the said defendant re-attend on discovery to answer follow-up questions arising from the written answers she provided was refused by the court.

[3] It appears that there were no offers to settle exchanged by the parties in relation to the motion. That is not surprising given the nature of the motion. There is no middle ground in this type of a motion. The plaintiff took the position that the questions should be answered and the defendant Karen Booth took the position that answers to the questions should be refused, on various grounds argued on the motion.

[4] It is fair to say that success on the motion was divided. The plaintiffs succeeded only minimally, in that the vast majority of the questions the plaintiffs sought to be answered were refused by the court. The plaintiffs had success on only 3 of the 13 questions raised. The defendant Karen Booth enjoyed some success in that most of the questions sought to be answered were not ordered to be answered but that said defendant did not enjoy complete success on the motion in that some of the questions she was seeking not to answer were ordered to be answered by the court.

[5] Given the nature of the motion and the fact that success on the motion was divided, the usual disposition would be to order costs in the cause or order that there be no costs of the motion.

[6] It must always be borne in mind that, as set out in section 131(1) of the Courts of Justice Act, R.S.O. 1990 c.43, costs are in the discretion of the court subject to any provision in the Rules that may assist the court in the exercise of its discretion.

[7] In the exercise of its discretion under section 131 of the Courts of Justice Act, in awarding costs the court may consider the result in the proceeding, any offer to settle made in writing and the factors set out in section 57.01(1) of the Rules of Civil Procedure.

[8] Both the plaintiffs and the defendant Karen Booth argue that they should receive costs on the motion. The defendant Karen Booth submits that as the substantially successful party she should be awarded costs of the motion. The plaintiffs argue that the defendant Karen Both, through her counsel, argued that the plaintiffs’ counsel engaged in improper conduct on the examination of discovery of Karen Booth and in his use of the material on discovery and indicated in his factum that he was seeking costs personally against the plaintiffs’ counsel and as a result of this unfounded allegation substantial indemnity costs should be awarded on the motion in favour of the plaintiffs.

[9] I do not agree with that position. A reading of my reasons dated January 30, 2017 clearly indicate that the motion brought by the plaintiffs was not decided on the basis of whether plaintiffs’ counsel acted improperly or used confidential material improperly on the examination of discovery of Karen Booth. Although these issues were raised by counsel for Karen Booth in his factum and in argument on the motion, this position did not form the basis for the disposition of the motion. The only reference to information obtained by plaintiffs’ counsel from a College of Physicians and Surgeons decision is in paragraph 30 of my reasons and in that paragraph I concluded that I am not satisfied that questions relating to charting and note taking arose out of the complaint to and decision of the College of Physicians and Surgeons of Ontario and therefore is an improper question. I was not required to comment upon the propriety or impropriety of the plaintiffs’ counsel’s conduct in obtaining and using information received from a complaint and decision of the College of Physicians and Surgeons of Ontario in disposition of the motion. If the propriety or impropriety of the use of that information and the conduct of the plaintiffs’ counsel in using it on the discovery was necessary for the court to adjudicate upon in disposing of the motion then the allegations would be a factor to consider in the determination of costs. That is not the case here.

[10] Given this fact and the fact that the success on the motion was very much divided, there shall be an order that the plaintiffs and the defendant Karen Booth be responsible for their own costs with respect to the motion.

Gareau J. Released: March 2, 2017