Court File and Parties

COURT FILE NO.: CV-08-359836 DATE: 20170404 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WANDA LABANOWICZ, Plaintiff AND: CORPORATION OF THE TOWN OF FORT ERIE, Defendant

BEFORE: GANS J.

COUNSEL: Loretta P. Merritt and James A. Round, for the Plaintiff Christine G. Carter, for the Defendant

HEARD: In Writing

COSTS ENDORSEMENT

Introduction

[1] I released judgment in this matter in late January after a more than three week trial that was heard in the Fall of 2016. [1] I am now called upon to settle costs and interest, neither of which issues can be agreed upon, which has regrettably been par for the course for this trial. With but a few exceptions, the defendant put almost everything in issue right from the get-go. [2]

Background

[2] The action arose out of an unfortunate single person bicycle accident in late July 2006, which took place on a recreational trail maintained and occupied by the defendant municipality. Liability, the extent and nature of the plaintiff’s injuries, and loss of past and future income were all hotly contested issues.

[3] As the below recited judgment indicates, I decided the various liability questions in issue in the plaintiff’s favour. In the final analysis, I found for the plaintiff on almost all of her claims and awarded damages, primarily for past and future income, in an amount of $737,339.72. This was in addition to the general and special damages agreed to earlier with the assistance of D. Wilson J. I am advised from a review of the Draft Judgment that the total judgment sought to be approved is $894,839.72, exclusive of costs and interest.

Costs

[4] I preface this aspect of the endorsement by noting that I do not intend to mindlessly repeat the costs principles provided by the Rules [3] and the applicable recent jurisprudence. I have recently articulated those principles in Evans v. Paradigm Capital Inc. [4], and Bimman v. Neiman [5], to which I directed counsel before receiving their recently delivered material.

[5] In my opinion, there are four overarching factors that play into an award of costs in this case: (1) the plaintiff’s pre-trial offer to settle, which she handily surpassed; (2) the manner in which the defendant conducted its defence, which the plaintiff has aptly described as a “scorched earth” defence; (3) the complexity of the matters in issue; and (4) the reasonable expectations of the parties as to the fair and reasonable costs to be paid by the losing party. The fourth factor must be weighed against the first three factors. Again, I do not intend to repeat the case law that supports the above mentioned principles—they are captured in Evans and Bimman and repeated, in part, in paragraphs one and two of the defendant’s written argument.

The Offers

[6] The plaintiff delivered two pre-trial offers that were lower than the damages awarded at trial, one in September 2015, and a formal Rule 49 offer in May 2016 (the “May Offer”). These offers were made before the matter was initially scheduled for trial and adjourned because defendant’s counsel was required to be at trial elsewhere. The May Offer was for $600,000 plus interest and costs.

[7] The defendant delivered what can only be described as ‘nuisance’ value pre-trial offers in a complex case of this nature, one in the Fall of 2011, for $50,000 all-in and one in February 2016 for $100,000 all-in. In my view, in light of the result achieved, neither offer was worthy of consideration on the plaintiff’s part and underscored the misplaced confidence in which the defendant held its case, both in terms of liability and damages.

[8] Under the circumstances, and as the defendant has surprisingly conceded at paragraph one in its written submissions, the plaintiff will be entitled to recover her reasonable partial indemnity costs to the date of the May Offer and reasonable costs on a substantial indemnity basis thereafter.

The Defence

[9] The defendant, in my view, asserted unreasonable and/or unsupported defences throughout the trial, which included but were not limited to: (a) the ouster of the court’s jurisdiction by virtue of the OPSEU Collective Agreement grievance process; (b) pension deductibility against future income; (c) business record admissibility; (d) allegations of contributory negligence attributable to the plaintiff and non-parties; and, last but not least, (e) its interpretation of s. 4 of the Occupiers’ Liability Act [6]. Most of these issues had been long since put to bed by decisions of higher courts. [7]

[10] The defendant asserted principles of negligence and contributory negligence which did not even have an air of reality to them and were not supported by the evidence or admissible evidence. Furthermore, the defendant attempted to rely on experts who purported to testify in areas about which they had no recognized expertise, training or education. In that regard, I found the evidence of Mr. Solomon to be most unhelpful and the evidence of Dr. McGovern, in respect of the issues of cognitive deficits, to be of limited value.

[11] In my view, the defendant erred in not calling a neuropsychologist or psychiatrist to comment on the critical issues of post-concussion syndrome and its impact on the plaintiff’s ability to be gainfully employed as an IT specialist. The same observation can be made regarding the defendant’s failure to call a human factors expert to speak to the issue of adequate response time and reactions to ‘hidden’ or disguised road perils. Instead, it relied on its traffic engineer who lacked this particular expertise.

[12] In addition, and without limitation, the defendant would have been well advised to call a bio-mechanical engineer to testify to the perils of not wearing a bicycle helmet in the vain hope of avoiding or limiting the effects of a head trauma. Sending the court on a merry chase in respect of unsubstantiated and inappropriate questions posed to the plaintiff’s neuropsychologist was not only an unproductive exercise, but, a waste of time.

[13] Ms. Merritt’s written submissions on behalf of the plaintiff sets out other pre-trial incidents in which she suggests that the defendant acted unreasonably, the results of which sent plaintiff’s counsel down roads that were neither relevant nor appropriate. I cannot comment on these arguments since they are unsubstantiated by any form of admissible evidence before me.

[14] That said, I have seen the manner in which the defence of this case was handled and the interchange between the court and counsel during the course of the trial, and the manner in which the defendant raised issues in this post-trial costs review. [8]

[15] In the first place, I would observe that there is little place in today’s litigation arena for the defence to play everything so close to the vest and to leave the presiding judge with a gnawing doubt on whether full disclosure has taken place in a timely if not meaningful fashion. That is not to say that a litigant is not entitled to play ‘hard ball’.

[16] In my view, the words of D. Wilson J. in Gardner v. Hann [9] are most instructive:

It was clear throughout the trial that the defence took a very different view of the nature of the injuries sustained by Gardner in the motor vehicle accident and on the impact of these injuries on Gardner’s future. Certainly, they were entitled to take the approach that they did and force the Plaintiffs to prove all aspects of the claims. I note, however, that this was not a case of soft tissue injuries arising from an accident; nor was it a chronic pain type of case where there is little objective evidence of injury. There was no dispute that Gardner suffered a head injury in the accident; the disagreement was over the severity of that head injury and its impact on the Plaintiff’s future endeavours. This was a case that had significant risk for the defence, given the nature of the injury and the age of the Plaintiff. There were numerous opportunities for Hann to resolve the claim within policy limits without the necessity of a long trial and Hann chose not to avail himself of those opportunities. I say this not in a critical fashion, as any litigant is entitled to have a claim proceed through trial, but if the outcome is not what was hoped for or anticipated, they cannot later be heard to say that they are not prepared to pay the consequences of their refusal to settle the case.

Complexity

[17] The complexity of this case is best distilled at paragraph 3 in the plaintiff’s written submission which I have excerpted rather than paraphrased:

The trial commenced on October 4, 2016 and concluded on November 15, 2016. There were 15 witnesses including 9 expert witnesses. There were written legal submissions filed on behalf of the Plaintiff (94 pages) and the Defendant (23 pages.) There were extensive legal briefs filed by both parties. There were dozens of exhibits and 3 volumes of Exhibit Briefs (Medical, Employment and Document). The trial chronology, extensive medical and employment compendiums were all prepared by counsel for the Plaintiff.

[18] In my view, this statement captures it all but for the fact that plaintiff’s counsel did a first rate job in the presentation of the case.

Reasonable Expectation of the Parties

[19] While the defendant has correctly set out the principles of ‘reasonable expectation’ in its submissions, I am not persuaded that the plaintiff’s proposed Bill of Costs, which is roughly six times the defendant’s accounts, suggests that plaintiff’s counsel has taken a “money is no object” approach to the litigation, particularly in respect of the trial and trial preparation. As I said, plaintiff’s counsel were very well prepared, as they needed to be, and were at the ready to meet all manner of defence, in addition to the presentation of their own case.

[20] These same arguments were raised by losing defence counsel in Bain v. UBS Securities Canada Inc. [10] I prefer to follow the line of reasoning suggested by D. Wilson J. at paragraphs 20-24 in Bain, which I paraphrase: (a) I can’t begin to inquire into the hourly rates charged by defence counsel to insurers, which no doubt is governed by contract; and (b) the hourly rates suggested by the plaintiff do not appear to me to be off the dial and while outside the so-called grid, do not offend the principles expressed in the case law.

[21] That said, I am not unmindful of the fact that throughout this litigation saga, the plaintiff was, apparently, represented by no less than three law firms. This fact, by definition, means that there was duplication in the pre-trial preparatory work which should not be visited at the defendant’s door.

[22] I have analyzed the Bill of Costs prior to the May Offer and from that date to trial. [11] I propose to reduce the pre-trial, pre-May Offer partial indemnity costs by $35,000, which is a reduction of approximately 30% of the proposed bill to cover any duplication and wasteful expense. I do not, however, take issue with the hourly rates set out in the material.

[23] I also propose to reduce the post-May Offer portion of the Bill of Costs to reflect what I consider to be underscored by the notion of “way too many cooks” in this pre-trial broth, without further explanation. In my view, there was too much clerk and student time for starters, relative to the time apparently expended by trial counsel, let alone by counsel who never darkened the courthouse door.

[24] I do not propose to reduce the time expended by counsel at the trial proper. It is what it is. But I think the time expended for the preparation of the Bill of Costs and the submissions in respect of costs was on the high side, as well. That number will be reduced by half.

[25] To summarize: Pre-May Offer costs will be set at $82,000; Post-May Offer costs to trial will be set at $432,000; Trial costs are fixed at $168,000; Subsequent Costs will be set at $5,000. Total fees portion of the Bill of Costs is, therefore, set at $687,000 plus HST.

Disbursements

[26] Defendant’s counsel made some suggestion that it had paid some unspecified disbursements that were being double-counted. I was unable to discern the disbursements it referred to in correspondence sent to me after delivery of the written submissions. If the defendant believes it discharged disbursement accounts now claimed, it was obliged to highlight these items for me rather than having me double check the items on a less-than-informative spreadsheet.

[27] I am also not satisfied, without more information, that the amounts charged as disbursements are unreasonable. In that respect, I cannot begin to challenge the accounts rendered by the experts. They seem fair and reasonable in the circumstances having regard to the complexity of the issues, the medical history of the plaintiff, which covered volumes of material, the preparation time to trial and the actual testimony of the experts.

OHIP

[28] The defendant also suggested that the OHIP account, which I was reminded was proved in evidence, was not a matter for inclusion in the Judgment. This proposition is completely baffling to me. The OHIP claim is a subrogated claim advanced by OHIP for services rendered to the plaintiff as a result of the injuries sustained in the subject accident. It did not form the subject matter of the Special Damages brief filed before D. Wilson J.

[29] For the defendant to now object to the quantum claimed without challenging it during the trial is ill-conceived and inappropriate. Such a position flies in the face of the personal injury litigation to which I have been exposed these past 20 years. The mere fact that it did not form part of final argument, if that assertion be correct, is of no moment since that debate focused on liability and income loss and not something that was of relative de minimus value.

Interest

[30] I am advised by the defendant that it does not take issue with the rates of interest utilized by the plaintiff in its Draft Judgment. Its argument, as best I understand it, is that it should not be responsible for the full interest hit since the matter was so long in its ‘gestation’ before trial. This argument would have some merit if it were shown that the plaintiff engaged in contumacious behaviour in bringing the case to trial and the defendant had faced rising or variable interest rates throughout the period to trial. These arguments, as best as I can determine, do not apply to the facts of the instant case. The plaintiff will have interest on the full judgment as claimed.

Disposition

[31] I will leave it to counsel to recalculate the amounts specified in the Draft Judgment, including costs, disbursements, OHIP, and interest in accordance with this endorsement.

GANS J. Date: April 4, 2017

Footnotes

[1] Labanowicz v. Fort Erie (Town), 2017 ONSC 630. [2] The defendant reluctantly, and only at my urging, concluded an Agreed Statement of Facts during the course of the trial. In addition, on the eve of trial, D. Wilson J. conducted a further pre-trial and was able to obtain an agreement in respect of the plaintiff’s claim for general and special damages, which having regard to the Draft Judgment, amounted to $157,500. [3] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [“Rules”]. [4] Evans v. Paradigm Capital Inc., 2016 ONSC 7500 (“Evans”). [5] Bimman v. Neiman, 2015 ONSC 4144 (“Bimman”). [6] Occupiers’ Liability Act, R.S.O. 1990, c. O.2 [“Act”]. [7] The defendant did not direct me to the Court of Appeal’s decision in Campbell v. Bruce (County), 2016 ONCA 371, 349 O.A.C. 302, which would have been of some assistance in further understanding the overarching duty of care and standard of care under the Act, as well as causation and contributory negligence on the part of recreational trail users. That said, the plaintiff erred in not uncovering this case which came to my attention when the leave application to the SCC was dismissed most recently (see Bruce (County) v. Campbell). [8] Counsel for the defendant raised certain matters in her submissions on costs (related to disbursements and OHIP) that were not only unsubstantiated, but forced me and counsel for the plaintiff to drill down on the suggestions made through additional material, which was equally a time-waster. I was left scratching my head as to why these unwarranted propositions were advanced. [9] Gardner v. Hann, 2012 ONSC 2006, at para. 27. [10] Bain v. UBS Securities Canada Inc., 2017 ONSC 1472 (“Bain”). [11] The defendant argued that she could not meaningfully ‘attack’ the plaintiff’s Bill of Costs since she was not furnished with copies of accounts or arrangements between previous counsel and the client. Respectfully, this argument is without merit and misses the point of the exercise of judicial discretion in an award of costs.