Court File and Parties

COURT FILE NO.: C-10897-08 DATE: 2017-06-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lori-Ann Brown, Kevin Brown and Randy Boucher, Plaintiffs v. Electri-City Amusements Limited operating as New-Way Sales Company and Cedar Fair Entertainment Company carrying on business as Canada’s Wonderland, Defendants

BEFORE: A.D. Kurke, J

COUNSEL: Daniel C. Sirois and Dhiren Chohan, for the plaintiffs Todd J. McCarthy and Susannah Margison, for the defendant Cedar Fair Entertainment Company

HEARD: in Chambers on written submissions

Endorsement

Overview

[1] On April 11, 2017, the trial of this action was concluded with the jury finding no negligence or liability under the Occupier’s Liability Act (OLA) on the part of either of the defendants.

[2] Only the defendant Cedar Fair Entertainment Company carrying on business as Canada’s Wonderland (“Cedar Fair”) defended the action at trial. The other party defendant, though alerted about the trial date, did not appear.

[3] I invited the parties to make written submissions as to costs. Only the plaintiffs and Cedar Fair have provided submissions as to costs.

Factual background

[4] The action involved allegations of negligence and occupier’s liability against the defendants. Cedar Fair operates an amusement park. Electri-City Amusements Ltd. ran a games concession at the park. In 2007 Lori Brown injured her ankles while using the “Jumpin’ Jackpot” game at the park, and sued in negligence and under the OLA. She claimed for non-pecuniary damages, loss of income, and loss of competitive advantage. Her husband and son made claims under the Family Law Act. The jury found no negligence or breach of the OLA, but assessed damages suffered by Lori-Ann Brown and her husband in the total amount of $53,677.34.

[5] In the Statement of Claim, the plaintiffs had sought more than $525,000 in damages.

[6] Cedar Fair brought a motion for summary judgment, which was heard on December 21, 2010. It was dismissed by Poupore J., with costs awarded to the plaintiffs. In that motion, Poupore J. encouraged the plaintiffs at trial to offer expert evidence on liability.

[7] Offers went back and forth over time:

a. The plaintiffs in a letter from May 2014, sought $160,000 all-inclusive to resolve the case;

b. Cedar Fair served a Rule 49 Offer to Settle on October 5, 2016, offering to consent to dismiss the action as against Cedar Fair without costs;

c. On October 27, 2016, the plaintiffs made their own Rule 49 Offer to Settle, in the amount of $84,847.55, plus pji, assessable disbursements, and costs on a partial indemnity scale. This was estimated to total nearly $150,000;

d. In late October 2016, Cedar Fair offered $10,000 all-inclusive to resolve the matter. It increased the offer to $25,000 all-inclusive when the matter was not reached in the November 2016 sittings;

e. Later the same year, plaintiffs’ counsel suggested that $70,000 all-inclusive would resolve the case.

[8] The amount of damages assessed by the jury comes in between the final amounts offered by the parties. That amount, however, is notional only, as the jury found no liability.

[9] Cedar Fair seeks partial indemnity for costs to October 4, 2016, and substantial indemnity thereafter, given its Rule 49 Offer. That amounts to $92,167.93. On a partial indemnity scale throughout, Cedar Fair puts its total at $67,121.25.

Factors on Costs

[10] Pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs in a proceeding are in the discretion of the court, which can determine to what extent the costs shall be paid. Here, there is no question that if costs are to be paid, they are to be paid by the plaintiffs, to defendant Cedar Fair.

[11] Pursuant to Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in determining costs, I may consider the following, among other things:

a. The result of the proceeding;

b. Any offer to settle pursuant to Rule 49;

c. The principle of indemnity, including the experience of the lawyer(s) involved, the rates charged, and the hours spent by the lawyer;

d. The amount of costs that an unsuccessful party could reasonably expect to pay;

e. The amount claimed, and the amount recovered;

f. The complexity of the proceeding; the importance of the issues;

g. The conduct of any party that tended to shorten or lengthen unnecessarily the proceeding;

h. Whether any step was vexatious or unnecessary, or taken through negligence, mistake, or excess caution;

i. Unreasonable denial or refusal to admit the what should be admitted;

j. Any other relevant matter.

[12] The defendant was completely successful in the proceeding. It made a Rule 49 offer to settle October 5, 2016, that was at least as favourable as the actual result, and two further informal offers that were substantially better than the result. Given their years of call, the hourly rates set out by defendant’s counsel in their Bill of Costs are quite modest, and discounted further for substantial or partial indemnity. More than $500,000 was initially claimed, though the realistic claim had been pared down to approximately $150,000 well before trial; this was not a major lawsuit. There were barely five days of evidence, submissions, and charge.

[13] The plaintiffs argue that the costs of the proceeding, as advanced by Cedar Fair, are unreasonable and that the case was “over-lawyered”. I note that the case was not particularly complex, and, with the greatest respect, I do not see the need for a law clerk to have assisted Cedar Fair’s two counsel at this modest proceeding, especially given the substantial travel and accommodation costs involved.

[14] In addition, although in the end result it would have been better for the parties if Cedar Fair’s motion for summary judgment in December 2010 had been successful, it was not. Costs were awarded to the plaintiffs against Cedar Fair, and matters relating to that motion should not now figure in Cedar Fair’s Bill of Costs at this point.

[15] The lawyers conducted the litigation with civility and focused on the relevant matters. The matter was obviously of great concern to the parties, and either side trumpeted the significance of its issues, although it is easy to overstate their importance. That said, the plaintiff’s unyielding stance, in the circumstances of this case, and without having heeded the warning of Justice Poupore to procure expert evidence of causation, was unrealistic. In that context, plaintiffs’ claim of impecuniosity, while it should be acknowledged, could also be said to aggravate their responsibility for costs, as the plaintiffs should have appreciated more fully the heavy downside risks of continuing to trial.

[16] Rule 49.10(2) of the Rules of Civil Procedure provides for enhanced costs from the date of a defendant’s formal Offer to Settle that is as favourable or more favourable than the plaintiff achieves at trial. That is the situation in this case.

[17] In my view, the court must also take into account the very important principle of proportionality. By the time of trial in this case, there was no likelihood that the jury, even if liability were found, would award anything like the amount sought in the Statement of Claim. An award of costs in the ranges advanced by Cedar Fair is out of all proportion to the importance of the issues, the complexity of the case, and the amount of money reasonably at issue.

Conclusion

[18] When I take into account all of the factors, including the Rule 49 offer in October 2016, and the principle of proportionality, it is my view that an appropriate, reasonable and fair costs award in the circumstances of this case, is $45,000, all inclusive.

A.D. Kurke J. Date: June 9, 2017