MOTION HEARD: 2017 08 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dr. David Robinson
v.
London Health Sciences Centre and The University of Western Ontario
BEFORE: MASTER R.A. MUIR
COUNSEL: Matthew Wilton for the plaintiff
Nicola Brankley for the defendant London Health Sciences Centre
SUPPLEMENTARY REASONS FOR DECISION - COSTS
1On August 16, 2017 I heard a motion brought by the plaintiff seeking answers to undertakings and questions refused or taken under advisement at the examination for discovery of a representative of the defendant London Health Sciences Centre (“LHSC”). The plaintiff also sought an order pursuant to Rule 30.10 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”), for the production of a file in the possession of the law firm Filion Wakely Thorup Angeletti LLP.
2I released my reasons for decision on September 20, 2017. The plaintiff was largely successful. Most of the disputed questions were ordered to be answered including the questions related to the central issue on the motion being the claim for privilege by LHSC over the identity of certain witnesses interviewed in the course of its investigation of the plaintiff.
3I also requested that the parties provide the court with written costs submissions. I have now received and considered those submissions.
4The plaintiff seeks partial indemnity costs of $26,964.65. The plaintiff argues that he was the successful party on the motion. He also submits that the claim for privilege being made by LHSC was of central importance to his claim and it was necessary for senior counsel to devote a substantial amount of time in support of his position on this motion. The plaintiff also takes the position that the privilege claim being advanced by LHSC was a novel one in the context of an employment setting. The legal issues were therefore complex and required significant legal research and argument.
5LHSC takes the position that the costs requested by the plaintiff are excessive for a discovery motion of this nature. It suggests costs to the plaintiff in the amount of $5,000.00 would be fair and reasonable in the circumstances.
6The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, RSO 1990, c C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result achieved in the proceeding or motion and any offer to settle. This Rule includes a non-exhaustive list of factors the court may also consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
7When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
8These are the factors and principles I have considered and applied in determining the costs of this motion.
9I agree with the plaintiff that he has been largely successful and is entitled to costs. The issues on the motion were important, as I noted in my reasons for decision. The plaintiff is advancing a very substantial claim for wrongful dismissal and damage to his professional reputation. The motion was complex from a legal perspective and justified the use of senior counsel, at least to some extent.
10However, I also accept the submissions of LHSC that the costs requested are somewhat excessive. I have come to this conclusion for the following reasons.
11First, although the total number of hours devoted to the motion by counsel for the plaintiff was very similar to the hours spent by the lawyers for LHSC, the plaintiff chose to use two very senior lawyers. I accept that this was an important motion for the plaintiff and the use of senior counsel was justified. However, in my view, it would have been reasonable for LHSC to assume that the use of one senior lawyer by the plaintiff would have been sufficient. Much of the work could have been done by a junior lawyer or perhaps a law clerk. I note that the costs outline submitted by LHSC shows partial indemnity costs of $11,500.00 for approximately the same number of hours.
12Second, it is my view that the fees requested should be reduced as a result of the adjournment on June 13, 2017. The plaintiff delivered additional authorities the day before the motion which necessitated the adjournment. The plaintiff did not simply serve additional case law in support of arguments already made in his factum. The new authorities raised the argument of waiver of privilege for the first time. I note that counsel for the plaintiff placed great reliance on this argument when this motion was ultimately argued on August 16, 2017. The late notice of this argument undoubtedly resulted in extra cost to LHSC.
13I also agree that a portion of the time devoted to drafting lists of undertakings and following up with counsel for the defendants is properly part of the discovery process generally and also required for trial preparation purposes.
14A small reduction is also warranted for the Rule 30.10 portion of the plaintiff’s motion. LHSC did not oppose that relief. That part of the motion was necessary regardless of the position taken by LHSC.
15I agree with the plaintiff on the issue of the time spent in connection with the undertakings and refusals of the defendant The University of Western Ontario. Twenty percent appears to be a reasonable allocation in the circumstances. The issues involving LHSC were much more significant.
16I have taken these factors into account in determining the costs of this motion. I have concluded that a 50% reduction in the costs requested by the plaintiff is appropriate given these factors. In my view, it is fair and reasonable for LHSC to pay the plaintiff’s partial indemnity costs of this motion fixed in the amount of $13,500.00 inclusive of HST and disbursements. These costs shall be paid by December 8, 2017.
Master R.A. Muir
DATE: 2017 11 08