CITATION: Toth v. City of Niagara Falls, 2017 ONSC 5670
COURT FILE NO.: 1424/10 (Welland)
DATE: 2017/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY TOTH, by her Litigation Guardian, KAREN TOTH and KAREN TOTH
Plaintiffs
- and -
CITY OF NIAGARA FALLS
Defendant
COUNSEL:
Margaret Hoy, for the Plaintiffs
Ian P. Newcombe and Brad Remigis, for the Defendant
COSTS JUDGMENT
I. Introduction
[1] After ten days of trial, this jurist recommended to counsel that they take advantage of having a mid-trial “pre-trial” by a colleague. That kind of opportunity can be fruitful, as counsel have seen how the case has evolved and with a lot of things in life, how its evolution was different from that which was expected.
[2] Indeed, as the presiding jurist, I was concerned given how the Plaintiff’s case had gone in, that there were significant issues that could erode the most optimistic of expectations. The plaintiff’s claim for an injury which allegedly was caused by an uneven sidewalk, and then numerous consequential operations to address a severely fractured leg of a nine-year-old young girl, in the abstract, presented as substantial. The potential enormity lay beyond the general damages, in the loss of economic opportunity attributed to psychological issues which had arisen to thwart the career plans and chances of success of the plaintiff.
[3] No doubt the parties, concerned with such an expressed concern by the presiding jurist, took a fresh look at their respective positions. It was quite fortuitous that Justice Arrell was able to achieve settlement in that the defendant municipality would pay $450,000.00 to satisfy the claim. The parties also agreed that I as the trial judge would decide the issues of costs, which ultimately would be on a partial indemnity basis (despite the agreement, counsel for the plaintiff still, in her materials, raised the spectre of full indemnity).
[4] The latter part of the settlement, namely, letting the trial jurist decide the appropriate level and quantum of costs, directs that the trial jurist in that exercise consider how the evidence came out at trial and how it was presented.
II. Issues
[5] There were at least three impediments to the successful pursuit of the plaintiff’s case. All arose out of the how the case was presented.
[6] The major impediment was that there was a significant disparity between what the plaintiff had attested to in the discovery (the discovery evidence) when she was 12 years of age, and what she attested to at trial (the trial evidence).
[7] The second impediment was the discovery of social media pictures which were in direct contrast to the attestations of a lack of social interaction and physicality that the plaintiff testified to as a result of her various surgeries over the years.
[8] The third impediment lay in the evidence of Dr. Max Wheeler. His evidence was problematic for a variety of reasons.
[9] There are numerous other issues with the presentation of the case and the actual expenses claimed and the quantum of services rendered.
III. Applicable Law
Costs Generally
[10] Section 131(1) of the Courts of Justice Act R.S.O 1990 c.C-4 speaks of costs being in the discretion of the court, the court may determine by whom costs should be paid and to what extent. Costs awards are a means to ensure the efficient and fair operation of the system. As Justice LeBel stated in British Columbia (Ministry of Forests) v. Okanagan Indian Band, 2003 SCC 71 2003 3 SCR 37, para 26:
Indeed, the traditional approach to costs can be viewed as being emanated by the broad concerns to ensure that the justice system works fairly and efficiently. Because cost awards transfer, some of the winner’s litigation expenses to the loser rather than them leaving each parties expenses where they fall (as is done in jurisdictions without costs rules). They act as a disincentive to those who might be tempted to harass others with meritless claims. Because they offset, to some extent, the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court’s concern with over-seeing its own processes and ensuring that litigation is conducted in an efficient and just manner. In this sense, it is a natural evolution of the law to recognize the related policy objectives that are served by the modern approach to costs.
[11] Rule 49.10 sets out consequences in the event a written offer is made in a timely fashion. Obviously, offers are encouraged within a system of litigation that cause parties to reflect upon their chance of success and the costs associated with the pursuit of the litigation. In other words, to take a clinical objective approach to that which they are embroiled in. The incentive is to make a fair offer and that there are costs consequences to the other side if they do not achieve the offer or better than.
[12] Rule 49.13 references back to the discretion referred to above; it allows the court to take into consideration any written offer, the date of the offer and its terms.
[13] As Justice Epstein writes for the panel in König v. Hobza, 2015 ONCA 885, this latter rule invites “a holistic approach to the determination of costs having regard to factors including any offers to settle – regardless of whether they meet the requirements of Rule 49 – where appropriate to do justice between the parties”.
[14] The introductory subsections of Rule 57.01 talks about above and beyond the results and offers, the court considers the experience of counsel for the successful party and the hours dissipated.
[15] Therefore, the discretion that is referred to is to be exercised in a fair and principled manner. Rule 57.01 continues to consider as factors: elements of bad litigation behaviour, i.e. the failure to admit that which should be admitted and behaviour that contributes to the prolongation of the matter or unnecessary expense. Obviously, one of the goals is to have litigation which is cost effective, not a function of playing “hardball”.
Premiums
[16] Counsel for the plaintiff uses language in her costs factum associated with the granting of a premium over and above actual costs. In Sandhu (Litigation Guardian of ) v. Wellington Place Apartments, 2006 20540 (ON SC), 81 OR (3d) 307, Justice Horkins reviewed the appropriate case law with respect to premiums and isolated the following as requirements (para. 11):
(1) A costs premium is reserved for consideration in those cases where the plaintiff has been awarded substantial indemnity costs. To “award a premium in addition to partial indemnity costs would offend the principles that govern costs awards”.
(2) A cost premium is rare.
(3) Both the risk and result criteria must be satisfied. Neither alone will justify a premium.
(4) Counsel must achieve an outstanding result.
(5) The risk criterion requires four factors to be proven:
(a) The plaintiffs lacked financial resources to fund lengthy and complex litigation;
(b) plaintiffs’ counsel financed the litigation;
(c) the defendants contested liability; and
(d) plaintiffs’ counsel assumed the risk of not only delayed but possible non-payment of fees.
[17] The first requirement would appear to render the possibility of a costs premium in this matter eclipsed, as the agreed upon cost parameters in the case are in a “partial indemnity basis”. Additionally, the result, while fortuitous is not outstanding.
The Duty to Correct Answers Given at Discovery
[18] Rule 31.09 provides that if a party has testified in a particular fashion, namely, an answer, and information is subsequently discovered that renders that answer incorrect or incomplete, that deviation should be communicated to the other parties. If a party fails to do that then the corrected evidence can only be led or introduced if leave is obtained from the trial judge (Rule 31.09(3)(a).
[19] This rule clearly applies to the deviation of the plaintiff in her evidence at trial from that which she attested to at her examination for discovery.
Social Media Evidence
[20] In the last day of this trial (i.e. before the parties entered into settlement discussions facilitated by a jurist, in a mid-trial pre-trial), the name of the plaintiff’s boyfriend, having been finally discovered, counsel for the defence tabled as exhibits, Facebook and photographs from the boyfriend’s account showing the plaintiff in various physical and social events. The plaintiff was familiar with these photographs. These photographs were arguably relevant to the plaintiff’s physical capabilities and her degree of socialization, both elements of the general damages sought.
[21] Generally speaking, all documentation are relevant to a pleading is producible by the party in whose possession they are. Perhaps because these documents were on the public side of the boyfriend’s Facebook it could be argued that they were not in possession of the plaintiff, but ostensibly they were within the power of the plaintiff. Why was the name of the boyfriend not revealed earlier? It could be because of the duration of this litigation, “Facebook” disclosure only came into vogue four or five years ago. But in this case, this revelation led to the possibility of hundreds of more pictures. In this day and age, given the ease of taking such pictures with your iPhone and the frequent tendency by some to take “selfies”, this form of potential disclosure presents a potential treasure trove of real evidence as to what a party is capable of doing, notwithstanding their injuries.
[22] Counsel for the plaintiff started to argue privacy concerns before the subsequent evidence was produced. Southern J.A. in M.(A.) v. Ryan, 1994 6417 (BCCA) 1997 1 S.C.R. 157 stated:
In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion. There need not be a privilege against testimony in the classic sense for this to be a relevant question. By “private documents” I mean documents which are not public documents. I do not limit this question to what might be thought of as personally embarrassing documents.
On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim.
But, on the other hand, a defendant ought not be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the Court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance”.
(As cited in Merpaw v. Hyde, (2015) ONSC 1053 at para. 20.)
[23] There is absolutely no reference in the affidavit of documents produced by the plaintiff of the existence of these photographs. Surely counsel for the plaintiff, realizing the age of her client and the overwhelming use of iPhones to capture even the most insignificant of moments, should have averted her mind to the existence of such documentation in a public forum.
IV. Analysis
(i) Offers to Settle
Rule 49 Offer of the Defendant
[24] The defendant had made a Rule 49 offer before the commencement of the trial of a judgment for the plaintiffs in the amount of $400,000.00, costs, HST, and disbursements, were to be assessed on a partial indemnity basis.
[25] That offer was made at the time when the defendant operated under of the belief that the plaintiff would testify as per her examination for discovery.
The Plaintiff’s Offer
[26] The plaintiff offered to settle the matter for $720,000.00 without any breakdown of what the sum covered. The offer went further to talk about prejudgment interest on past losses and general damages. Unfortunately, without the breakdown between general and FLA damages, the latter aspect was impossible to calculate as there are different rates of interest with respect to such claims. Counsel for the defendant guesstimates that the offer would be roughly for $828,000.00 and costs. In Elbakhiet et al. v. Palmer et al., 121 O.R. (3d) 616, 2014 ONCA 544, Justice Rosenberg, writing for the panel quoted Laskin J.A. with respect to the issue of uncertainty.
[27] This “uncertainty” should not invalidate Rule 49 offers. I recognize that some courts have taken the opposite view. It seems to me, however, that in evaluating a Rule 49 offer for any “uncertainty” that arises from a provision for costs should only be relevant in deciding whether the party relying on the offer has met the burden of proof under Rule 49.10(3). In other words, uncertainty, or lack of clarity in an offer may prevent a party from showing that the judgment obtained was “as favourable as the terms of the offer to settle, more or less favourable as the case may be”, the reference being Rooney (Litigation Guardian of) v. Graham, (2001) 2001 24064 (ON CA), 53 O.R. (3d) 685, [2001] O.J. No. 1055 at para. 44.
[28] Given that the eventual result in this case was far less than the offer, the “uncertainty” referred to above is academic.
The Offer Made by the Plaintiff at Mediation
[29] Counsel for the plaintiff asserts that because counsel for the defendant made reference to an apparent limited preparation for the mediation, that reference somehow allowed her to refer to an offer made at the time of mediation, notwithstanding clause 5(d) of the Mediation Agreement which expressly prohibits the parties from “relying on or introducing as evidence in any subsequent proceedings... any offers or positions taken by any party”.
[30] Needless to say, counsel for the defendant takes the opposite view, namely that the reference to the preparation was an innocuous and only arose as counsel for the plaintiff referred to the hours she had allegedly dissipated in preparation and attendance at the mediation. In other words, there was no breach of the confidentiality clause of the mediation agreement.
[31] Remarkably, both sides refer to Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, 2014 1 SCR 800 as authority for their position. That precedent is based on a factual situation in which a settlement was achieved at the mediation. The discussion was with respect to the interaction between settlement privilege and a mediation confidentiality clause. In our case, there was no settlement. There is no way that counsel for the defendant breached the confidentiality clause, by referring to the quality of the plaintiff’s counsel’s preparation, a fact that she herself had raised in the context of the costs sought. The confidentiality clause prevails, the innocuous reference made in the cost submissions does not allow counsel for the plaintiff to put forth in these cost submissions an offer that was made by the plaintiff at mediation.
Conclusions as to the Existence of Relevant Offers
[32] The Rule 49 offer by the defendant comes close to how this case was resolved. The Rule 49 offer of the plaintiff was far in excess of what was achieved. Although as Justice Rosenberg stated in Elbakhiet v. Palmer, supra at para. 31, there is no “near miss” policy, the defendant’s offer was still the more relevant and realistic offer to consider in the holistic approach to costs provided for by Rule 49.13.
(ii) The Non-Disclosure of the Plaintiff as Required by Rule 31.09
[33] As stated under “Issues” there were two versions of the plaintiff’s evidence.
The “Discovery Version”
[34] On May 10, 2012, the plaintiffs Kelly Toth and Karen Toth and Karen Toth were examined for discovery under oath. Evidence was given with respect to “scootering around the block on prior occasions”.
[35] The May 10, 2012 discovery of Kelly Toth included the following questions and answers:
Q. 64 – Okay. All right now, in terms of geography of where you could go with the scooters, you said you should stay on the sidewalk, but were you told to restrict yourself to any particular streets or neighbourhoods?
A. Just our neighbourhood.
Q. 65 – And what does that really mean?
A. So like our street, our block.
Q. 66 – I’m just going to show you - - it’s just so we have something to talk about, I’m showing you a little map of sorts, which is tab 7 of the City’s Book. And you’ll see on there Westfield which goes in a sort of a ‘U’ shape...
A. Yeah.
Q. 67 – ...and then there’s Olden, and then there’s Casey.
A. So usually...
Q. 68 – so when you said block, is that the block you’re referring to?
A. ...like this block. So you could go around here.
Q. 69 – Okay, so you’ve just traced with your finger...
A. It’s just on...
Q. 70 – ...Olden, Casey, and Westfield?
A. ...yes.
Q. 71 – All right, and when you say you were just to go around the block, were you allowed to cross any of those streets to the opposite side?
A. No.
Q. 72 – So you’d be riding on the interior of that block without crossing the streets?
A. Usually, unless we were on our street, we could go to the other side.
Q. 77 – Okay. Maybe I’ll do it this way. Before your accident had you ever noticed a bump in the sidewalk at the spot where you eventually had your accident?
A. No.
Q. 90 – Okay, so you’d be riding around the block in a clock-wise direction?
A. Yeah.
Q. 91 – How many times, or how often do you think you would have ridden scooters around the block over that summer, the summer of 2008?
A. Quite often, like, a lot.
Q. 92 – I know from experience that what young people mean by a lot might not be the same as an old guy like me. So can you be a little more specific?
A. Well, I guess you could say once a week, twice a week.
Q. 102 – Okay, and on the occasions when you are riding the scooter, would you go around the block once, more than once, how many times?
A. Once or twice.
Q. 103 – Okay, now I want to make sure I understand you. Are you saying that if you’re riding a scooter on a given day, you would go around the block once or twice, and then you would do that once or twice a week?
A. Yes.
Q. 104 – Okay. So doing my simple arithmetic then, you would go around the block once or twice on this day, and around the block once or twice on that day. So that would be two to four times per week you would ride your scooters around the block?
A. Yes.
Q. 116 – Okay, so over the course of that summer, that’s the summer of 2008, when you’re going around the block with Amanda on your scooters two to four times a week, had you ever fallen?
A. No.
Q. 117 – Had you ever lost control of a scooter before?
A. No.
[36] The May 10, 2012 discovery of Karen Toth included the following questions and answers:
Q. 187 – Prior to this accident, did you know that your daughter was riding the Miller’s scooters?
A. Yes.
Q. 188 – Did she do that with your permission?
A. Yes.
Q. 189 – Did you know she was riding those scooters around the block that’s defined by Westfield, and Casey, and Olden?
A. Yes.
Q. 190 – Did you have any objection or problem with that?
A. No.
[37] There was no Rule 31.09 correction by the plaintiff.
[38] Therefore the Rule 49 offer by the defendant was no doubt influenced by the “discovery version”, which was what was anticipated to be led at trial.
[39] That version is pivotal with respect to the liability issue in the trial. Because the evidence led was rather vague as to how the actual falling off the scooter is caused, the evidence of Kelly Toth was crucial. The “discovery version” made contributory negligence a live issue, she had circumnavigated the block several times without issue, without apparently being affected by a sidewalk rise or perhaps she had learned to deal with that alleged feature. Counsel for the defendant in his opening remarks clearly stated that contributory negligence was key, perhaps even eliminating liability.
[40] The Rule 49 offer, given that position, which was not unreasonable, appears to be in itself quite fair and reasonable. “Reasonable” in the holistic sense, i.e. all things considered, it was somewhat generous. With the benefit of hindsight, if the defence had known of the disparity between the trial and discovery versions, no doubt the offer would have been much lower.
The Trial Version
Q. All right, so your evidence in this court is that before your accident, you had never scootered the Olden sidewalk and you had never scootered on the spot on the Olden sidewalk where you later had your accident?
A. Correct.
Q. What you are saying here in this trial says that you were only scootering along Westfield sidewalks, correct?
A. Correct.
Q. So you’re saying that when you scootered down Olden to Casey, you had never done that before?
A. We had walked it but not scootered it.
Q. All right, now in closing, before this trial commenced, did you have an opportunity to review your transcript?
A. I did.
Q. You read it carefully?
A. Yes.
Q. And did you decide at any time that the transcript in any respects was not correct or accurate?
A. Yes.
Q. All right, and you had the intention of testifying differently than is in your transcript and you in fact then did so?
A. Yes.
Q. Specifically, you testified here in court, in chief, that you had never scootered that spot before and had never circled that block before?
A. Yes.
Q. Can you show me the communication to the defence which corrected your discovery evidence?
A. I was told that Margaret did that.
Q. Well, in fact, and we can deal with this later, but as far as you know, there was no such communication was there?
A. I was told there was.
Q. You know the defence theory of this case was that the bump had only come up recently because the sidewalk had only heaved recently and it wasn’t there all summer. You knew that was the theory?
A. Yes.
Q. And you had known that for some before the pre-trial – or sorry, before the trial?
A. Yes.
Q. You – in fairness, you knew that if the evidence was that you had scootered all summer around that complete block defined by Westfield, Casey, Olden, that that might be a problem for your case?
A. No.
Q. You came to this trial and testified you had never scootered around that block?
A. Correct.
Q. And without informing the defence that that was going to be your evidence, contrary to discovery?
A. I was told that it was told to you.
[41] Given the disparity between the versions and the absence of a Rule 31.09 notification, counsel moved to strike the trial version. That was a legitimate position.
[42] Counsel for the plaintiff was naturally upset. There was talk of her retaining counsel to represent her. It was about as awkward a moment as you could have in a trial, the plaintiff stating that she believed her counsel had sent the Rule 31.09 notification. The concern was openly expressed with respect to how the other plaintiff witnesses would testify. So, this jurist had the spectre of professional negligence and possible collusion amongst witnesses.
[43] Fortunately for all, after counsel discussed this matter, the defence withdrew the motion to strike the trial version and the two versions were left in place. So, the plaintiff was now a witness with a prior inconsistent statement, which could be considered by the trier as relevant to her credibility. The Rule 31.09 non-compliance could be considered on costs.
[44] So, the trial limped on. The inconsistent versions were not inconsequential; the existence of liability was perhaps even more of a sensitive issue.
[45] Counsel for the plaintiff seeks to explain the discrepancy, by saying that Kelly was a pre-adolescent child when she was examined at discovery, whereas at trial she was a more sophisticated young adult. That being said, is there not something refreshing, non-rehearsed when children say things?
[46] It must be observed that with all the preparation counsel for the plaintiff alleges in her Bill of Costs, devoted to interviews and preparation of witnesses, would counsel not have gone over with her client the latter’s discovery evidence? Would that exercise not have revealed the discrepancy, the error, the “incorrect” discovery testimony? Maybe the preparation was not as intensive as is put forth, but the exercise of going over prior evidence or statement is pretty basic.
[47] There is no doubt that the plaintiff experienced numerous surgeries and apparatus to address the multiple fractures resulting from the incident. Her evidence with respect to her sense of isolation as an adolescent was compelling. At the same time, she demonstrated a certain strength of personality in her demeanour as she testified.
[48] Ms. Toth’s evidence as to the continuation of this lack of physicality and sociability into adulthood, such that it would impact upon her scholastic success and choices, was challenged by the Facebook photographs. She had travelled to England with her boyfriend, gone to rock concerts, went drinking with friends, etcetera.
[49] Regrettably, over her evidence of isolation and lack of physicality, was the cloud of credibility arising out of the Rule 31.09 fiasco. This was not helped by or lifted by how the photographs were discovered by accident, versus being produced. Two failures of disclosure in one trial does not help a plaintiff’s case. Did the plaintiff torpedo or diminish her credibility independently? Or did counsel just not address those issues?
(iii) Conduct of a Party that Unnecessarily Lengthens the Duration and Complexity of a Trial
[50] What has been said above with respect to the effect of the Rule 31.09 conformity applies with respect to the manner in which the plaintiff’s case was presented. That non-conformity clearly added to the length of the trial; there was a fire to be extinguished, an issue that could have been so easily addressed by adhering to the rule in the first place.
[51] Preparation of counsel for the defence was geared up to and based on the discovery version. With the “trial version” counsel had to scramble to address that version and the repercussions for the defence’s case.
[52] To some extent, counsel for the defence had to scramble when the boyfriend’s name was finally revealed, and Facebook could be explored.
[53] Clearly how the plaintiff’s case was presented at trial elongated the process. The trial was expanded upon by dealing with both the Rule 31.09 issue and the social media production.
(iv) The Amount Claimed and the Amount Recovered
[54] At the outset of the trial, the plaintiff moved to increase the prayer for relief from $1,000,000.00 to $2,000,000.00. No reason was provided for why this amendment had not been made earlier.
[55] The plaintiff succeeded in obtaining a settlement of $450,000.00 plus costs, which represents about a quarter of what was sought.
[56] Proportionality of costs relative to the amount realized is a factor. A Bill of Costs ranging between $381,695.09 and $427,499.64, the latter being almost 100 percent of what was achieved. This is not a model of proportionality.
(v) The Complexity of the Issues
[57] The legal framework of this case was not complex. The real challenge lie in producing a body of evidence which satisfied the liability issue and the magnitude of the damages. With respect to the former, the plaintiff undermined her credibility and with the latter, there was the prospect of “overreaching”.
V. Preliminary Conclusions with Respect to the Receipt of Costs by the Plaintiff
[58] The discussion to this point reveals significant problems with how the case was presented on behalf of the plaintiff. Some of these problems trigger the negative factors touched upon in Rule 57.01. That being said, that does not mean the plaintiff is not to receive any costs.
[59] The case for the plaintiff obviously had some worth, despite how it was presented. It was that sense of worth that caused this jurist to encourage participation in a mid-trial pre-trial.
[60] The settlement itself recognizes inherent worth in the plaintiff’s claim and that is at a point where there are real credibility issues with respect to liability and the extent of damages. $450,000.00 plus assessed costs is not a diminutive result. Given what has been discussed, it is a very fair result for a young person with a shortened leg and coincidental orthopaedic architectural difficulties.
[61] The discussion to this point merits a significant reduction in the amount of costs claimed by counsel for the plaintiff. It is recognized that depending upon the understanding between the plaintiff and her counsel, that any discrepancy between what is awarded and what counsel has put forth in her bill of costs may be deducted by counsel from the $450,000.00. That possible deduction or diminution of the settlement amount may be based on what counsel claims as between her client and herself as costs.
[62] This potential for encroachment upon the settlement cannot be a concern for this court. That is between counsel and her client.
[63] The responsibility of the court is broader as was referenced in the survey of applicable case law regarding costs. The courts have to apply the general principles of Rule 57.01 and consider how the presentation of the case impacted upon the efficiency of the system and fairness to all sides.
VI. Analysis as to the Appropriate Level of Legal Fees and Appropriate Disbursements
[64] The discussion now moves from the broad concerns expressed to date, to the specifics of the actual Bill of Costs of the plaintiff.
Fees
[65] The defence understandably contests the magnitude of the Bill of Costs with respect to fees.
[66] Counsel claims that 712 hours were dissipated by herself in this matter at a partial indemnity rate of $350.00 per hour (the actual rate would be $400.00 per hour). By way of contrast, counsel for the defendant who has seven years more experience, has a partial indemnity rate of $265.00 per hour. Counsel for the defendant reports a total a 299 hours. Possibly it can be argued that defence of the claim is less time consuming because it is essentially a reactive phenomenon, versus a proactive task facing the plaintiff. That being said, the defence was well organized, made appropriate concessions and was fair (witness the concession with respect to the Rule 31.09 fiasco).
[67] The partial indemnity rate of the defence stands as a benchmark for the partial indemnity rate in this matter.
[68] Regrettably the number of hours put forth by counsel for the plaintiff presents as hopelessly “bloated”.
[69] There are specific instances of this “bloat”. One notes in passing that no dockets were presented by counsel with her initial bill of costs. A docket only appeared in reply submissions.
[70] In her “Costs Outline”, counsel puts forth a total of fees of $335,807.75, on top of which is added a $40,000.00 counsel fee. The former figure is the substantial indemnity rate purportedly multiplied by 712 plus hours. The $40,000.00 counsel fee presents as a duplication of the hours claimed in court. Perhaps this is akin to the “premium” alluded to in her submissions. Such a claim for counsel fee is duplicitous and definitely not merited as a premium.
[71] The suggestion of 712 hours in itself is problematic. Counsel claims for 10 days of trial. She dissipated 80 hours, roughly eight hours per day. A remarkable claim in that the standard court day is essentially a five hour exercise given the breaks that are taken. Granted, preparation is often expended for the date ahead, but counsel does not allocate any of her eight hours to preparation. In fact, she describes it as “attendance at trial”.
[72] Counsel claims 275.5 hours for preparation. Counsel for the defence spent 90.2 hours. As mentioned, there may be something said for the differentiation in roles, but that differentiation only goes so far. How could counsel of roughly equivalent experience spend triple the time that her colleague does? As stated before, if that time was actually dissipated how would a Rule 31.09 omission occur and production problems present?
[73] Eight hours is a figure utilized by counsel, even if an event is only a half day or less, such as the mediation appearance, and the trial settlement conference.
[74] The discovery apparently demanded 28 hours, for both preparation and attendance; yet the discovery itself only took three and a half hours.
[75] Meetings with experts required some 24 hours. The same amount of time was roughly required to read their reports. There were six experts. Counsel for the defence appropriately questions the need to spend four hours in trial prep for each expert. The same counsel points out that the duty of impartiality of an expert diminishes the need for “preparation” of the expert for trial. In other words, why do you need so much time, when in a way the report speaks for itself and is presumably the basis for anticipated testimony?
[76] The involvement of plaintiff counsel in the drafting of pleadings and the affidavit of documents, appears excessive in this day of age “boiler plate” pleadings and word processing. Indeed it is hard to imagine counsel of this vintage spending 12 hours on the affidavit of documents, a compilation usually performed by a clerk.
[77] 51.5 hours are claimed for legal research without any specification. Services such as Goldsmiths and readily available case law, can quickly establish a broad range for general damages. There is also multiple readily available case law with respect to actions against municipalities, and their duty with respect to sidewalk repairs. This court actually referred counsel to previous decisions of this jurist in this regard. Why cases tried by the defence counsel would be relevant to legal issues involved is questionable, any more so than “all the cases within the City of Hamilton”.
[78] The fee breakdown does not add up to the total substantial indemnity fees claimed. Counsel for the plaintiff acknowledges that the dockets presented in reply are in excess of what is claimed in hourly rate.
[79] There are other questionable items, for example the time required for review of a letter (more likely an email in this day and age), a task which would be in the main performed by a legal assistant.
[80] Having noted all of the above, and using a partial indemnity rate of $265 per hour and considering the costs principles enunciated, fees payable to the plaintiff are fixed at $80,000.00. Upon that sum HST will be payable.
Disbursements
[81] Allowable disbursements are those which are “reasonably necessary” for the conduct of the action. The plaintiff claims a total of $103,043.43.
[82] The defence takes exception to some of the items claimed.
[83] Without any explanation for the usage, Purolator costs are questionable as being reasonably necessary. Therefore, that cost of $256.82 is disallowed.
Dr. Missiuna
[84] Dr. Missiuna charged $15,424.50 for his court attendance. Apparently he was scheduled according to counsel for the plaintiff to be in attendance April 4, 2017. That was remarkable scheduling as that was the first day of trial. Counsel for the plaintiff normally would build or present their case leading off with the plaintiff herself. That was done in this case.
[85] This jurist notified counsel that day that the trial would be interrupted for a bail hearing later that initial week.
[86] Dr. Missiuna charged for his nonattendance April 4, 2017, $5,876.00. Counsel for the plaintiff seeks to justify this cost as a result of the doctor cancelling his activities that day. Why would he be scheduled for April 4, 2017? That scheduling is surely an error on the part of the office of the plaintiff’s counsel. The defence is not required to pay for the other side’s mistakes. Therefore $5,876.00 will be deducted.
[87] Dr. Missiuna did testify April 12, 2017. He bills $5,876.00 for that attendance as he was in attendance for eight hours at an hourly rate of $650.00. In fact he testified for about four hours. Allowing for the luncheon recess and the fact that he practices in Hamilton, roughly an hour away, that sum is acceptable.
Dr. Wheeler
[88] Dr. Wheeler is a qualified psychiatrist. He was called by the plaintiff to establish her sense of isolation, social withdrawal and general lack of confidence in terms of her academic pursuits and future employability.
[89] The defence argues that his appearance was not reasonably necessary in light of the social media images which contradicted such assertions. Furthermore, counsel states that the plaintiff’s issues were essentially orthopaedic.
[90] The presentation of psychiatric evidence was a plausible step in the prosecution of this claim. That does not necessarily mean that it would be accepted, but it is a legitimate choice by the counsel for the plaintiff, possibly made before the impact of the social media images was anticipated.
[91] Dr. Wheeler’s evidence became readily problematic in that he enthusiastically opined about the Fraser Institute and the deplorable state of education in the Niagara Peninsula, etcetera. He was cautioned by the bench to stick to his expertise but he could not help himself, he had to opine. Counsel for the defence refers to this witness as a “joke”. That is quite strong language, but his departure from his expertise and deeply held beliefs did get the better of him at the expense of his objectivity as a witness. He was reactive to counsel. Counsel for the plaintiff states that this was as a result of a personality conflict with counsel for the defence. That may be so, but as a professional witness he should have risen about that. His behaviour put the validity of his evidence in issue. He did not contribute value to the trial. Accordingly the amount of $2588.00 for his court attendance is disallowed.
[92] The defence also challenges the disbursements for Niagara Investigative Associates of $2,034.00 for services rendered during the course of the trial. One immediately has to ask how could whatever fact or witnesses the investigators discovered be disclosed in a timely fashion. As it was, the witnesses discovered, Bob Styles and Doris Ferguson who testified, failed to add any relevant information. Eleventh hour investigations may be useful but in a way demonstrate a lack of trial preparation. Surely given the trial preparation claimed by counsel, these were possible facts that could have been discovered and produced way in advance. The other side is not required to cover the cost of what you as counsel have left to the last minute. The investigative costs are therefore disallowed.
[93] Therefore, the allowable disbursements are reduced. I believe counsel failed to add up the disbursements properly, therefore I start with the total provided by the defence which is higher.
[94] Subtracting from $103,043.43, the sum of $10,754.00 leaves $92,289.43.
VII. Concluding Remarks
[95] To summarize, the plaintiff is to receive $80,000.00 plus HST for legal fees and $92,289.43 for disbursements.
[96] Counsel for the plaintiff, throughout the cost submissions, portrayed the realization of the costs claimed as an access to justice issue. Hearkening back to the remarks of Justice LeBel in British Columbia (Minister of Forests) v. Okanagan Indian Band (supra) and Justice Southin in M.(A.) v. Ryan (supra), that correlation is valid.
[97] That being said, if a party has access to justice, as the plaintiff did have, the exercise of that access on her behalf has to be in accordance with the costs Rules of Practice and reasonable, not bloated. It is that adherence that maintains the fairness of the process.
Whitten J.
Released: September 28, 2017
CITATION: Toth v. City of Niagara Falls, 2017 ONSC 5670
COURT FILE NO.: 1424/10 (Welland)
DATE: 2017/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY TOTH, by her Litigation Guardian, KAREN TOTH and KAREN TOTH
Margaret Hoy, for the Plaintiffs
- and -
CITY OF NIAGARA FALLS
Ian P. Newcombe, for the Defendant
COSTS JUDGMENT
ACRW:jl/mw
Released: September 28, 2017