Turcotte v. Lewis, 2017 ONSC 4689

CITATION: TURCOTTE v. LEWIS, 2017 ONSC 4689

COURT FILE NO.: CV-14-0580

DATE: 20170802

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ryan Turcotte, Rick Turcotte and Kerry Turcotte, Plaintiffs

AND:

Aaron Lewis, Courtney Lewis, First Student Canada, 1853780 Ontario Inc. o/a Kee to Bala, Ryan Zaroski, David Ribble, John Doe 1 and John Doe 2, Defendants

BEFORE: THE HONOURABLE MADAM JUSTICE S. E. HEALEY

COUNSEL: M. Steven Rastin/Anita W.H. Wong, Counsel for the Plaintiffs Roger Chown/Marie Hynes, Counsel for the Defendants First Student Canada and David Ribble Andrew A. Evangelista, Counsel for the Defendants 1853780 Ontario Inc. o/a Kee to Bala, Ryan Zaroski

HEARD: By Written Submissions

COSTS ENDORSEMENT

HEALEY J.

[1] This costs endorsement follows this court's ruling on a successful motion for summary judgment brought by four of the defendants (2017 ONSC 1773), whereby the claim was dismissed in its entirety against each of them.

[2] The claim arises out of an assault and resulting injuries suffered by Ryan Turcotte, which occurred at the Duckworth Plaza in Barrie, Ontario in the early morning hours of June 26, 2012.

[3] In November, 2015 a jury found the defendants Aaron Lewis and Courtney Lewis guilty of aggravated assault against Ryan Turcotte. They are currently incarcerated, and have been noted in default.

[4] The moving party defendants are First Student Canada and David Ribble (the “First Student Defendants”), who are the company which provided a bus service used by Turcotte on the night in question, and the driver of the bus. Also moving were 1853780 Ontario Inc. o/a Kee to Bala and Ryan Zaroski (the “Kee Defendants”), who are the company which operates a concert hall and entertainment venue called the Kee to Bala, and a security guard employed by the Kee.

[5] Ryan Turcotte commenced this action seeking damages for injuries sustained in the assault. His parents claimed damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3. The total amount of the claim was $6.5M. The plaintiffs advanced a multiplicity of causes of action against the Kee Defendants, as well as both separate and related causes of action against the First Student Defendants.

[6] The action had proceeded to the stage of examinations for discovery of seven of the parties involved, lasting for three days. The investigation and defence of these various allegations also required attendance at the criminal trial of Courtney and Aaron Lewis. On the basis of the evidence obtained, the moving parties decided to proceed with a motion for summary judgment. Although the plaintiffs submit that the defendants could have brought their summary judgment motion earlier in the litigation to limit the costs, it is difficult to understand how that could occur without the evidence available from the examinations for discovery at a minimum.

[7] Because of the numerous allegations, substantial research was necessary to prepare for the summary judgment motion. Facta and briefs of authorities were filed. It took a full day to argue the motion. The motion was obviously a very important one to each of the parties.

[8] Neither the First Student Defendants nor the Kee Defendants assert that any party has acted in an inappropriate manner during the proceeding. It was clear from the way the summary judgment motion proceeded that there has been co-operation from all involved.

[9] I have reviewed the Bill of Costs of both the Kee Defendants and the First Student Defendants. No unnecessary steps were taken in the litigation and none of the time spent on any step was unreasonable given the amounts claimed and the breadth of the causes of action advanced against them. Where appropriate, the defendants utilized junior counsel or the services of a law clerk or paralegal to reduce costs. A review of the Bills of Costs shows that there is no duplication of costs claimed for the discoveries, in that costs are sought only in relation to one counsel's attendance.

[10] In 2005 the Costs Subcommittee of the Civil Rules Committee published guidelines for maximum partial indemnity rates that should be sought and applied in fixing costs. Those rates are now 12 years old, and are typically adjusted for inflation: see, for example, First Capital (Canholdings) Corporation v. North America Property Group, 2012 ONSC 1359. Using the Bank of Canada's inflation calculator, the comparative maximum 2016 rates, adjusted for inflation, are as follows: law clerks - $97.90/hr; student-at-law - $73.28/hr; lawyer (less than 10 years) - $274.79/hr; lawyer (10 or more and less than 20 years) - $366.38/hr; lawyer (20 years or more) - $427.45/hr. These maximum hourly rates are intended to provide guidance and are not mandatory. In reviewing their respective Bills of Costs, I note that the hourly rates applied to the work of all involved is below those recommended amounts as adjusted for inflation.

[11] Counsel for the First Student Defendants seeks costs of the action on a partial indemnity basis in the amount of $60,094.70. Counsel for the Kee Defendants seeks costs on a partial indemnity basis for the action in the amount of $52,217.20. A large portion of the costs relate to the summary judgment motions alone; for the Kee Defendants the sum of $22,002 and for the First Student Defendants the sum of $22,904.

[12] All of the above considerations would, in the normal course, entitle the moving parties to an award of costs in the range sought. However, I have determined that this is one of those rare cases in which no cost should be awarded.

[13] As all counsel were aware at the outset of the summary judgment motion, I presided over the criminal trial of this matter. In the course of that trial I received information about the plaintiffs' financial circumstances both through testimony and the victim impact statements filed on sentencing. The specific information to which I am referring is the extent of the brain injury suffered by Ryan Turcotte, his course of treatment, and the prognosis that he is unlikely to be employed in the future. Since the assault, his life and that of his parents has involved a prolonged regime of medical appointments, assessments and therapies. Mr. Turcotte’s parents have had to take time from work to transport and attend these appointments and therapies, and have borne the associated costs of those attendances. Ryan Turcotte continues to reside with his parents, and remains dependent upon them. Some of that information was also provided at Ryan Turcotte’s examination for discovery, where he estimated that his monthly income totalled $1,130 from a combination of disability benefits received through the Ontario Disability Support Plan and the Canada Pension Plan. Without specifics, the Victim Impact Statements of Rick and Terry Turcotte suggest that before the assault they were a working-class couple of modest means who had raised two children.

[14] In addition to this evidence of limited ability to pay the cost award in the amounts sought by the defendants, this case is one in which any reasonable person, viewing the matter objectively, would have extreme sympathy for the plaintiffs and their circumstances. Their lives were drastically affected by the assault. Recovering from the Lewis' on an award of damages and costs will be unlikely in their current circumstances. It is understandable that the plaintiffs attempted to look to all players who may have borne some degree of responsibility for the situation that has impacted their lives so harshly.

[15] While unmeritorious claims that entail unnecessary costs for defendants should not be encouraged, this was not an absolutely clear-cut case on liability. It was arguable. The fact that the plaintiffs chose to pursue their claims against these defendants does not, in my view, show that they were cavalier or irresponsible in their approach to the litigation. Rather, I view the plaintiffs as motivated strictly by their situation, undoubtedly fueled by their despair over the circumstances in which they now find themselves. As mentioned earlier, their case was conducted reasonably in that there was cooperation throughout, and the litigation proceeded in a straightforward fashion.

[16] The financial circumstances of a party may be considered in determining costs, and the inability to pay a cost award may result in an order that no costs be awarded against an unsuccessful party: Belvedere v. Brittain Estate, 2009 ONCA 691. In Sutherland v. Manulife Financial, 2011 ONSC 1170, at para. 8, Brown, J. cited and adopted the following passage from Morden & Perell, The Law of Civil Procedure in Ontario, First Edition, as an accurate statement of the law in this area:

It is appropriate for the court to consider the financial ability of a party to pay an award of costs and the consequences of making or not making the award to the parties.

There is divided authority about whether impecuniosity is a relevant factor and may be considered in awarding and in enforcing costs awards, including determining when the costs should be payable. In our opinion, the better and preferable line of authority is that the court may consider a party's impecuniosity when making a costs award. There are, however, authorities that adopt the categorical position that impecuniosity will not insulate a party from liability of costs otherwise payable. In any event, impecuniosity is not a shield to costs liability where a party has consistently failed to act reasonably. (p. 660)

[17] In this case, given their conduct in the litigation, the plaintiffs’ sincere intention to seek redress for what was an unprovoked, violent attack, and the financial burdens and limitations that they will bear arising directly from the assault, there should be no costs ordered against them. Further, there is precedent for refusing an award of costs in "exceptionally sympathetic circumstances": Savin v. Granite Club, 2016 ONSC 4671, at para. 31. These facts rise to that level.

[18] For the foregoing reasons, this court orders that there will be no costs awarded against the plaintiffs arising out of the dismissal of the action against the four moving party defendants.

HEALEY J.

Released: August 2, 2017