Court File and Parties

CITATION: Minke v. Hartman, 2017 ONSC 5645

COURT FILE NO.: C-584-15

DATE: 2017/09/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven Minke, Linda Minke, Cameron Minke and Brittany Minke, Plaintiffs

AND: Stephen Hartman, Foot Works and Foot Works Inc., Defendants

BEFORE: The Honourable Justice G.E. Taylor

COUNSEL: Brian R. Goldfinger and Azka Ashan, Counsel for the Plaintiffs Anna L. Marrison and John McIntyre, Counsel for the Defendants

HEARD: April 12, 2017

Cost ENDORSEMENT

[1] The defendants’ motion for summary judgment to dismiss this medical malpractice action on the basis that the action had not been commenced within the relevant limitation period was dismissed. The parties have now submitted written submissions with respect to costs. This is my ruling on the issue of costs.

[2] The plaintiffs’ seek costs of the motion in the amount of $20,691.22 made up of $16,200.50 for fees, $2,106.07 for HST and $2,384.65 for disbursements. The defendants submit that cost of the motion should be reserved to the trial judge or be awarded in the cause in the all-inclusive amount of $15,000.

[3] This motion was important to both sides. It potentially spelled the end of the action for the plaintiffs. For the defendants, success on the motion would have avoided a potentially lengthy and complex trial. The motion material was well organized and presented. Both sides submitted affidavits which resulted in cross examinations over two days. The defendants’ Factum and Supplementary Factum totaled 30 pages and the plaintiffs’ Factum and Supplementary Factum were 25 pages in length. The motion occupied one half day of court time. Oral argument was focussed.

[4] The defendants do not take exception to the hourly rates proposed by counsel for the plaintiffs nor do the defendants object to the time spent or the disbursements incurred. The defendants did not provide any information about the time and disbursements incurred by them in bringing the motion.

[5] In my ruling on the motion I observed that the parties were essentially prepared for trial on the issue of the applicability of the limitation period. Accordingly, I agree with the submission of the defendants that some of the time spent preparing for the motion will be applicable to the trial. Also, some the costs of the transcripts will be applicable to the use of the transcripts at trial.

[6] On the other hand, based on my review of the Costs Outline it does not appear that any time has been included for attending for oral argument.

[7] I am not engaged in an assessment but rather I am fixing costs. In my view a reasonable amount for the costs of the motion is $15,000 for fees and $1,950 for HST. With respect to disbursements, I calculate the cost of transcripts to be $1,150. I think it reasonable to allocate one half that amount to the motion. The remainder of the transcript disbursement can be recoverable as costs of the trial. I therefore fix disbursements on the motion at $1,750. Therefore costs of the motion are fixed at $18,700.

[8] The plaintiffs ask that the costs of the motion be made payable within 30 days. The defendants submit that the costs be fixed and be reserved to the trial judge. Later in their written submissions the defendants submit that costs ought to be fixed and ordered to be payable in the cause.

[9] Rule 57.03 (1) of the Rules of Civil Procedure provides that on a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days unless a different order would be more just. In my view, it would not be more just to fix the costs of the plaintiffs on this motion and then either defer determination of the liability for those costs to the trial judge or make the costs payable in the cause. I have no information about the costs incurred by the defendants. It seems to me that it would be inappropriate for the quantum of costs to be determined based on the time and disbursements incurred by the plaintiffs but ultimately have those costs payable to the defendants. The defendants brought a motion for summary judgment which was unsuccessful. I see no reason why costs should not follow the event.

[10] Accordingly, the defendants are ordered to pay the costs of the plaintiffs in relation to this motion for summary judgment fixed in the amount of $18,700 within 30 days.

“G.E. Taylor”

G.E. Taylor, J.

Date: September 25, 2017