COURT FILE NO.: 10-23137

DATE: 2017-03-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Josef Biegerl as Trustee of the Estate of Louise Biegerl, Robert Josef Biegerl, Lindsey Anne Parkin, Jennifer Lee Parkin, Danielle Louise Biegerl, Tyler Louis George Biegerl and Hunter Bowman Pileggi, by his litigation guardian, Robert Josef Biegerl, Plaintiffs

A N D:

Oakville-Trafalgar Memorial Hospital, Dr. Peter Incze, Dr. Richard Casey, Dr. Manoj Sayal, Dr. Gerald White, Dr. Sonny Kohli, Nimfa Nato, Laurie Tilley, Elizabeth Pulchinski and Nancy Morton, Defendants

BEFORE: The Honourable Mr. Justice P. R. Sweeny

COUNSEL: Laura Hillyer, for the Plaintiffs Trevor A. Courtis, for the Defendants Dr. Peter Incze, Dr. Richard Casey, Dr. Manoj Sayal, Dr. Gerald White and Dr. Sonny Kohli Barbara Walker-Renshaw, for the Defendants Halton Healthcare Services – Oakville Trafalgar Memorial Hospital Site, Nimfa Nato, Laurie Tilley, Elizabeth Pulchinski and Nancy Morton

C O S T S E N D O R S E M E N T

[1] On March 8, 2017, I released my Ruling on Status Hearing with respect to this case. I ordered that the action proceed on a timetable as suggested by the plaintiffs.

[2] The parties were unable to agree upon costs. I have received costs submissions from the plaintiffs, the hospital defendants and the physician defendants.

[3] The plaintiffs seek costs on a partial indemnity basis in the amount of $10,668.15. The physician defendants assert that there should be no order as to costs. The hospital defendants accept the plaintiffs’ position on costs but ask that the costs be apportioned as between the hospital defendants and the physician defendants in a manner that reflects the work required of the plaintiffs to respond to their respective positions.

[4] As set out in s. 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43, the costs of or incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. The general rule is that the successful party is entitled to their costs of that step in a proceeding. The court does have authority to refuse costs in appropriate circumstances.

[5] In this case, the plaintiffs were successful on the status hearing. The defendants opposed the plaintiffs’ timetable and sought to have the action dismissed. The action will proceed on the timetable proposed by the plaintiffs.

[6] The physician defendants submit that I should consider, under Rule 57.01(1) of the Rules of Civil Procedure, the conduct of any party that tended to unnecessarily lengthen the duration of the proceeding. The physician defendants point to the delay in the prosecution of the action. In my view, the conduct of a party tending to unnecessarily lengthen the duration of a proceeding applies to conduct during the course of the proceeding or step for which the costs are sought. This provision is designed to deal with situations where costs were unnecessarily incurred. In this case, the conduct of the status hearing. The plaintiffs are only claiming costs associated with the status hearing. There was no conduct which caused unnecessary costs to be incurred related to the status hearing.

[7] The plaintiffs were successful. The plaintiffs proposed a timetable which would have avoided the hearing. When that timetable was not accepted, the plaintiffs requested this status hearing. The general rule that the successful party is entitled to costs should apply: the plaintiffs are entitled to their costs.

[8] With respect to the quantum, the hospital defendants acknowledge the reasonableness of the amounts claimed. The physician defendants do not comment on the reasonableness of the fees. In the circumstances, I find the costs claimed by the plaintiff to be reasonable.

[9] The plaintiff is entitled to costs on a partial indemnity basis fixed in the amount of $10,668.15.

[10] In accordance with the hospital defendants’ request and the submissions of the plaintiffs, I apportion the costs to be payable $2,668.15 by the hospital defendants and $8,000.00 by the physician defendants.

Sweeny J.

DATE: March 27, 2017