Court File and Parties
COURT FILE NO.: CV-11-418941 DATE: 20170519 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jesse Norman Imeson, Plaintiff AND: Maryvale (Also Known As Maryvale Adolescent and Family Services), Tony “Doe” and The Roman Catholic Episcopal Corporation For The Archdiocese of London and Father Horvath, Defendants
BEFORE: Stewart J.
COUNSEL: S. Dhanju - Dhillon, for the Plaintiff J. Dakin, for the Defendant Maryvale Adolescent and Family Services S. Metzler, for the Defendants Archdiocese of London and Father Horvath
HEARD: In Writing
Costs Endorsement
[1] Following a trial with a jury, the Plaintiff recovered an award of damages in the amount of $225,000.00 for sexual assault as against the Defendant Maryvale Adolescent Family Services. His action as against the Archdiocese of London and Father Horvath was dismissed.
[2] The award of the jury and the assessment of damages are properly characterized by the Plaintiff as being general damages for personal injury, both physical and psychological. Accordingly, prejudgment interest on these damages should accrue at the rate of 5% per annum pursuant to s. 128(2) of the Courts of Justice Act, R.S.O. 1990, C.43. I consider it is fair and appropriate that interest should run from the date on which the action was commenced.
[3] Prior to trial, the Plaintiff offered to settle his entire action for payment to him by the Defendants of the sum of $75,000.00. That offer to settle dated August 17, 2016 was not accepted by any of the Defendants.
[4] The Plaintiff now seeks costs of the action as against Maryvale on a partial indemnity basis up to the delivery of his offer to settle, and on a substantial indemnity thereafter up to and including trial. The total amount of costs claimed in this regard is approximately $217,500.00.
[5] The Archdiocese of London and Father Horvath, having successfully defended the action, claim costs of approximately $125,500.00. They refer to formal offers to settle delivered by them to the Plaintiff early in the proceedings offering to agree to a dismissal of the action on a without costs basis. These offers were not accepted by the Plaintiff.
[6] The Plaintiff argues that Maryvale should be responsible for payment of any costs to the Archdiocese of London and Father Horvath, and seeks a Sanderson or Bullock Order to that effect.
[7] Maryvale takes the position that the costs sought by the Plaintiff are excessive in the circumstances. It also submits that Plaintiff should be liable to pay any costs awarded to the Archdiocese of London and Father Horvath and that there is no basis to justify the granting of an order requiring Maryvale to pay these costs.
[8] Dealing with the costs request made on behalf of the Archdiocese of London and Father Horvath (who is now deceased but for whose alleged conduct the Archdiocese of London has assumed responsibility), I consider the amount requested by those Defendants to be fair, proportionate and within the reasonable expectations of the parties given the nature and seriousness of the allegations, the steps taken in the action and the length and complexity of the trial.
[9] I also take into account the formal Offer to Settle the action by means of a dismissal without costs delivered on behalf of the Archdiocese of London and Father Horvath. Although there was no financial component contained in the proposal for settlement, the nature of the allegations against those Defendants and the serious credibility issues they raised made such a settlement position reasonable.
[10] Further, the likelihood that the quantum of costs sought by the Archdiocese of London and Father Horvath was within the reasonable expectation of the parties is evident when the quantum of costs sought by the Plaintiff as against Maryvale is considered.
[11] Accordingly, the Archdiocese of London and Father Horvath shall recover costs in the amount of $125,500.00, as requested. The only issue in that regard is by whom they should be paid.
[12] Sanderson or Bullock Orders are the exception to the general rule regarding costs. The general rule is that a plaintiff is entitled to costs against an unsuccessful defendant, and a successful defendant is entitled to costs against an unsuccessful plaintiff.
[13] The test for deciding whether a Sanderson or Bullock Order is appropriate comprises two steps. First, it must be determined whether it was reasonable to join the Defendants in the one action. If the answer to that question is “yes”, it must be determined whether a Sanderson or Bullock Order would be just in the circumstances (see: Moore (Litigation Guardian of) v. Wiencheke, 2008 ONCA 162).
[14] Maryvale acknowledges that joining these Defendants in a single action was reasonable.
[15] However, Maryvale submits that the order sought by the Plaintiff would not be just in the circumstances.
[16] The factors relevant to exercise of discretion in applying the second step of this test include: whether the Defendants tried to shift responsibility onto each other, whether Maryvale caused the Archdiocese of London and Father Horvath to be added as parties, whether the causes of action are independent of each other, and who has the ability to pay costs.
[17] The decision to involve the Archdiocese of London and Father Horvath in this action was purely that of the Plaintiff.
[18] The Plaintiff, as the party which initiated proceedings as against those Defendants, must bear the primary risk of meeting their costs when his action is unsuccessful.
[19] Further, there is no substantial link between the allegations against Maryvale (or its former employee for whose conduct it assumed liability) and the allegations made against the Archdiocese of London and Father Horvath.
[20] The Plaintiff resided at Maryvale in Windsor, Ontario from late October of 1996 to March of 1997. The allegations of abuse involving Maryvale were confined to this time period. The events said to give rise to the causes of action are wholly independent of one another as to time and place.
[21] Therefore the claims as against Maryvale and as against the Archdiocese of London and Father Horvath have no practical nexus. Further, the respective liability of Maryvale and the Archdiocese of London and Father Horvath were advanced as ones which were to be assessed independently.
[22] In my view, the claims arose out of completely independent circumstances. Maryvale should not be expected to assume an obligation to indemnify the successful Defendants where the causes of action are substantively unrelated.
[23] In addition, attempts to shift responsibility from the unsuccessful Defendant to the successful defendant did not occur in this case. The Defendants took the united position that none of the events described by the Plaintiff had happened.
[24] Crossclaims initially advanced by the Defendants were not pursued at trial. During the cross-examination of the Plaintiff by counsel for each Defendant, no attempt was made to attribute any damages to the acts of the other Defendants. Similarly, neither Defendant, when putting in their respective cases, attempted to attribute damages or liability to the other.
[25] Considering the magnitude of the award made against Maryvale, the Plaintiff has the ability to satisfy the costs demand of the successful Defendants. This is not a case where they will be left without recourse.
[26] For these reasons, I do not consider a Sanderson or Bullock Order would be appropriate in this case.
[27] Accordingly, the Archdiocese of London and Father Horvath shall have their costs payable by the Plaintiff. I see no reasoned basis for the charging order to attach to the Plaintiff’s recovery from Maryvale requested by the successful Defendants, designed to provide security for payment of the costs award. Payment may be pursued in the usual manner.
[28] With respect to the Plaintiff’s claim for costs as against Maryvale, it must be observed that a sizeable portion of time spent in preparation and at trial was directed toward advancing his claims as against the Archdiocese of London and Father Horvath. Maryvale should not be required to pay those costs.
[29] However, it is also evident that the Plaintiff was prepared to compromise his claim for an amount far less than what the jury awarded. Substantial indemnity costs are the fair consequence to visit upon Maryvale as a result of their refusal to accept that offer.
[30] Accordingly, considering all of the arguments of the parties and the factors governing an award of costs including the principle of proportionality, I am of the view that a reasonable and fair amount to award to the Plaintiff as costs against Maryvale is the amount of $175,000.00, inclusive of disbursements and applicable taxes.
Stewart J. Date: May 19, 2017