COURT FILE NO.: CV-97-0701, CV-97-0271 & CV-14-0209
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Court File No: CV-97-0701
PAULETTE M. ENDEAN, FRANK WILLIAM ENDEAN AND DEBBIE ENDEAN Plaintiffs
J. Legge, D. Steeves and P. Orr, for the Plaintiffs
- and -
ST. JOSEPH’S GENERAL HOSPITAL Defendant
S. Wojciechowski and D. Latta, for the Defendant
A N D B E T W E E N:
ANDREW KARAM Plaintiff
- and -
ST. JOSEPH’S GENERAL HOSPITAL Defendant
A N D B E T W E E N:
SHERRY LIND, GINO DEAMICIS, LORRAINE LIND AND LAURI LIND, CRYSTAL LIND, DONALD DEAMICIS, DANIEL DEAMICIS Plaintiffs
- and -
ST. JOSEPH’S GENERAL HOSPITAL, Defendant
Court File No: CV-97-0271 J. Legge, D. Steeves and P. Orr for the Plaintiffs S. Wojciechowski and D. Latta, for the Defendant
Court File No. CV-14-0209 J. Legge, D. Steeves and P. Orr for the Plaintiffs S. Wojciechowski and D. Latta, for the Defendant
HEARD: November 1, 2017 at Thunder Bay, ON
FITPATRICK J.
Judgment on Costs
[1] This is a judgment in respect of the costs for three complex medical malpractice cases that proceeded to trial before me in the fall of 2016. The actions were commenced in 1996 or 1997 and have been going on for over twenty years. The alleged tortious acts that founded the cause of action alleged by the plaintiffs took place in the mid 1980’s. The liability portion of the trial took 41 days to complete.
[2] The trial was bifurcated at the request of the parties. One of the defences raised by the defendant was that the three claims were barred by the operation of the limitation section of the Public Hospitals Act. At the close of the evidence regarding liability, I gave a ruling. I indicated that I agreed with the position of the defendants that the claims were indeed statute-barred. Accordingly, I dismissed all three claims.
[3] The defendant now seeks an order for costs in respect of these three dismissed claims. The plaintiffs argue they should be awarded costs despite the fact their claims were dismissed.
Background
[4] The facts and evidence in these cases respecting liability were summarized in my judgment. I do not propose to repeat those findings here. For the purposes of the costs decision the essential background is as follows.
[5] In the mid 1980’s the three plaintiffs were implanted with a medical device designed to ameliorate or eliminate problems they were having with the temporomandibular joints (the “TMJ”). The TMJ is located in the jaw. It is a joint that allows a person to talk, chew, swallow and yawn, among other things. The implant procedure was done by an oral surgeon in the defendant hospital. The oral surgeons were given privileges to perform the procedure in the hospital. The oral surgeons were, at one time, party defendants to these actions. However, the plaintiffs’ actions against the oral surgeons were settled and the settlement was made the subject of a Pierrenger order.
[6] The device failed to perform as advertised. Over time, the device delaminated inside the plaintiffs’ TMJ, leaving microscopic particulate residue. This residue caused degenerative bone loss in the area of the TMJ. The hospital admitted that the device caused personal injury-type damage to the plaintiffs.
[7] However, for reasons set out in my decision, I found that the evidence at trial proved that the plaintiffs had received treatment and care within the hospital that ceased once they had been discharged from the hospital. The limitation period of two years in the Public Hospitals Act required that the plaintiffs commence their actions two years from the date of their discharge. For the three plaintiffs, this means that they would have had to start their claims, at the latest, by 1988. They commenced their actions in 1996 and 1997. As such, I found that their actions were statute-barred and dismissed the claims.
[8] It is important to note that the three claims were also tried together with another action, that of Janet Hearsey and her husband Leslie. I did not find her action was statute-barred. I did make a finding of liability against the hospital in that matter. I also made a finding of apportionment of damages against the hospital. The trial as to the issue of the damages suffered by Ms. Hearsey and the extent of the Family Law Act claim of her husband will continue before me at some later date. However, the issue of costs for Ms. Hearsey’s claim was expressly not before me on this hearing.
[9] The written submissions of the defendant contained a nineteen page comprehensive outline of the history of the proceedings. It appeared at Tab 3 of the defendant’s written submissions. The written and oral submissions of the plaintiffs did not take issue with the history of the proceeding as set out by the defendant. I therefore rely on the defendant’s chronology of the proceeding as being accurate.
[10] Significant for the purposes of a cost award were the following facts.
[11] The parties made written offers to each other. The plaintiffs made two offers, on June 7, 2013 and March 9, 2015. As I will still have to deal with the question of damages for Ms. Hearsey, the amounts of the offers by the plaintiffs were not revealed save and except the express quantum the plaintiffs had provided for costs in their offers.
[12] The defendant made three offers, one on April 1, 2015, and two on August 30, 2016, one addressing the issue of apportionment of liability (which apportionment amount was not disclosed to me) and one for a payment of $10,000.00 plus costs for each of the three plaintiffs before the court on this particular hearing.
[13] The hospital served three requests to admit, all of which were served in close proximity to the commencement of the trial. The first was served on August 22, 2016. The other two were served on September 19, 2016 and September 21, 2016. These requests to admit came at my request in the hopes that the trial could be shortened. In my view, the plaintiffs did not meaningfully respond to these requests to admit.
[14] The original pleadings for all three matters were completed in the mid to late 1990’s. The plaintiffs served fresh as amended statements of claim in November 2013. The hospital responded to these pleadings in December 2013.
[15] These cases had extensive documentary disclosure and production. At trial there were 18 bankers boxes of documents filed. Some of this material related to Ms. Hearsey, but nevertheless there were a lot of documents produced at trial.
[16] The plaintiffs were each subject to two days of examination for discovery. The hospital did a de bene esse examination of Ms. Endean in London, Ontario in May 2015. The hospital was subject to five separate rounds of examination for discovery involving four different representatives. This took eight days of examinations.
[17] The matter was subject to extensive judicial and private mediation and settlement efforts. Part of this effort involved eight days with two private mediators and one judge for the period from 2006 to December 2011. In addition, this matter was extensively pre-tried and mediated by Wilkins J. in Toronto. During the trial I heard a great deal about his efforts. Wilkins J.’s involvement with these files happened over the period from 2012 to April 2015 with numerous attendances.
[18] Also Shaw J. of Thunder Bay conducted a case management conference in April 2015. In addition, this matter was the subject of eight pre-trial and one mid-trial trial management conferences before me.
[19] Attempts were made by the defendant to obtain agreement as to the facts in the matter before the trial commenced. In my view, these efforts were not positively received or responded to by the plaintiffs. At paras. 9 and 10 of my judgment on liability I commented that I was surprised the parties could not have agreed on more of the facts that ended up being largely proven by documents that had long been available to the parties.
[20] The plaintiffs were each claiming $350,000 in general damages and $3,000,000.00 in special damages against the hospital.
[21] Suffice it to say, this was a big case that required a great deal of effort by counsel on both sides.
The Law
[22] Recently, Master M.A. Muir helpfully summarized the general principles regarding an award of costs in the decision Robinson v. London Health Sciences Centre, 2017 ONSC 6720. At para. 6 Master Muir stated:
[6] The 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.
[23] In considering this matter, I was also provided with a number of authorities by the parties. I took into account well known principles from the case law regarding costs reflected in cases such as Apotex Inc. v. Egis Phamaceuticals, 1991 2729 (ON SC), 4 O.R. (3d) 321 (Gen. Div.), Zesta Engineering Ltd. v. Cloutier et al, 2002 25577 (ON CA), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (ON CA), and Serra v. Serra, 2009 ONCA 395 which were provided to me. I found particularly helpful the principle from Serra at para. 8, that modern costs are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation, (2) to encourage settlement and (3) to discourage and sanction inappropriate behaviour by the litigants. In my view, one of the paramount considerations in dealing with an award of costs should be a consideration of what I view as a fair and reasonable amount of costs that should be payable by the unsuccessful party in a particular matter. To that end, the reasonable expectations of the losing party are something to which I have paid particular attention in this matter. Of course, I am bound to consider all the factors set out in Rule 57.01. I have indeed considered all of those factors in coming to my decision about the costs that are to be paid.
[24] I paid particular attention to an authority provided to me by the defence, the decision of the Ontario Court of Appeal in Boucher. In that decision, the Court of Appeal held that the overall objective of this process will continue to be to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. In Mudford v. Smith, 2009 63136 (ON SC), Belobaba J. gives a summary of Boucher at para. 7 of that decision where he states:
[7] In Boucher, the Court of Appeal reminded trial and motion judges that fixing costs is not simply a mechanical exercise beginning and ending with a calculation of hourly time and rates. The costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant. In deciding what is fair and reasonable it is relevant to consider the expectations of the parties. When a quantum has been determined, it is then necessary to step back and consider the result produced and assess whether, in all the circumstances, the result really is fair and reasonable.
Position of the Parties
[25] The defendant seeks individual awards of costs in the following quantum against the following plaintiffs:
Endean - $260,828.53 inclusive of HST and disbursements;
Estate of Karam - $248,199.32 inclusive of HST and disbursements;
Lind - $252,747.04 inclusive of HST and disbursements.
[26] I proceeded in this matter to assume the defendant sought costs both against the main plaintiff in the respective actions as well as the Family Law Act plaintiffs in each case. The amounts they sought were in effect “all in” for all plaintiffs in each particular action.
[27] The defendant asserts it was 100% successful in these three matters. It made offers to settle that were superior to the result the plaintiffs achieved after the trial. As such, the defendants assert they are entitled to partial indemnity costs to the date of their first offer, that is 1997 to April 2015, and substantial indemnity costs thereafter.
[28] The matter proceeded in three stages according to the defence. The first stage occurred from the late 1990’s when some 32 claims were filed against the hospital. The second stage occurred from April 2015 until August 2016. The defendant was faced with 15 plaintiffs during this time frame. The third stage was trial of four plaintiffs’ claims, three of which were dismissed and are the subject of this judgment.
[29] As a practical matter, the defence had a general file for the TMJ claims as well as individual files for each plaintiff at issue here.
[30] The defence relies on the amount it billed to its client as the baseline for commencing its calculation of the quantum of costs requested.
[31] The quantum of costs requested was calculated by taking the hours spent by the three lawyers on the file (at various times), multiplying it by their hourly rate and then applying a multiplier of 60% for the partial indemnity period and 90% for the substantial indemnity period. No discount was given for the claim for disbursements.
[32] During the so-called first stage, the defence took the amount expressly billed to the client for each individual plaintiff and 1/32 of the general bill to the client.
[33] For the second stage, the defence took the amount expressly billed to the client for each individual plaintiff and 1/15 of the general bill to the client.
[34] For the third stage, the defence took the amount expressly billed to the client for each individual plaintiff and 1/4 of the general bill to the client.
[35] The defendant pointed to the numerous efforts it made to attempt to limit the amount of trial time, by preparing requests to admit and agreed statement of facts. The defendant submits that the plaintiffs were unresponsive to these efforts.
[36] The defence also points to several statements made during the opening of trial by counsel for the plaintiffs concerning conduct of the hospital. The defendant says these statements were completely untrue and not borne out in the least by the evidence or the findings I made.
[37] In particular the defence pointed to a written submission made by counsel for the plaintiffs at the opening which asserted,
The documents you have been given and the evidence you will hear will clearly establish the Hospital’s liability for these surgeries. The Defendant knew all this. Not passive ignorance, but active involvement. Not simply Rogue dentists, but quack dentists who needed a rogue hospital to buy them and supply them with illegal implants, provide them with surgical facilities, supply them with nurses and anesthetists and provide them with professional credibility.
[38] The defence argues these kinds of statements reflect the attitude of the plaintiffs to this litigation. Assertions by the plaintiffs that the oral surgeons were unqualified, that the hospital was defending on the basis of contributory negligence, that the hospital permitted the oral surgeons to admit and discharge their own patients, that consent were not properly obtained, that proper records were not kept and that the hospital committed the tort of spoliation all reflect an aggressive and ultimately unfounded approach that should warrant an award of costs consistent with a trial that took 41 days on liability alone and where the claims were completely dismissed.
[39] Further, the defendants had been provided with a copy of the plaintiffs’ costs to the eve of trial, that is, as of August 2016. When comparing the amounts that the individual plaintiffs had been charged to that date with the amounts being sought by the defence on this hearing, even on a substantial indemnity basis, the amount sought is less. The defence argues this goes to the issue of the reasonable expectation of the plaintiffs as to costs they may be expected to pay if they were unsuccessful.
[40] The plaintiffs argued that despite the fact their claims were dismissed, the defendant should pay costs, albeit at a reduced rate.
[41] I had asked for a written outline of the parties’ submissions prior to the date for oral submissions. In my view, the plaintiffs’ written submission bore little resemblance to the oral arguments made by plaintiffs counsel before me.
[42] Counsel for the plaintiffs did not accept the quantum sought by the defence, but did not provide specifics as to why these amounts were inappropriate. Nor did counsel spend any significant amount of time arguing about the chronology of the proceeding or disputing the hourly rate of the defendant’s lawyers. Instead, counsel spent the majority of the oral argument attempting to relate my decision on apportionment in the Hearsey case, to the provisions of the Negligence Act and arguing that costs for the plaintiffs’ claims that were dismissed on a limitations defence should be related to findings of degrees of fault found in a matter that happened to be heard at the same time but was not dismissed. The words “negligence act” did not appear in the plaintiffs’ written submission. The plaintiffs submitted that my decision in the Hearsey matter apportioning a damage percentage against a non-party should be a factor in either reducing the amount of costs awarded to the defendants or in favour of making an award to the plaintiffs.
[43] Counsel for the plaintiffs submitted the defendant should pay a global amount of $250,000.00 plus disbursements in the order of $375,000.00 plus HST to the plaintiffs.
[44] I found the vast majority of the argument on costs made by the plaintiffs to be difficult to follow and unhelpful to determine the question of costs. The written submissions of the plaintiffs, in my view, were an attempt to either reargue the case, or were a preview of what the plaintiffs intend to rely upon on the appeal of my decision regarding liability. They did not assist in determining the specific issue that was before me, namely which party should be awarded costs and how much.
[45] The plaintiffs’ submissions emphasized the catastrophic nature of the injuries suffered by the plaintiffs. In its written submission, the plaintiffs argued that for the defendant to recover any costs where the plaintiffs have suffered such injuries from a device that was implanted at the hospital would be shocking to the conscience. The plaintiffs did not provide any authorities that dealt with this “shocking to the conscience” concept in the context of an argument about costs.
[46] I do accept the plaintiffs’ submission that the plaintiffs are of modest means.
Disposition
[47] I was not persuaded by any of the arguments of the plaintiffs that this matter was one where I should consider going against the usual maxim “costs should follow the result”. The claims of the plaintiffs were dismissed. The defendants had attempted to circumvent the need for a trial of the limitation issue, upon which they were ultimately successful, by bringing a motion for summary judgment in 1998. The motion was dismissed (Patrick v. Dowhos, [1998] O.J. No. 5438). In that decision, the motions judge determined the limitation issue required a trial. One was held.
[48] I do not agree with the plaintiffs’ submission that my decision to dismiss the plaintiffs’ claims was grounded in an interpretation of the pleadings and the statute and not of the evidence adduced at trial. A trial was required to determine the limitation issue. Based on the evidence at trial, I found that the plaintiffs’ claims were statute-barred. In my view these three plaintiffs and their Family Law Act co-plaintiffs lost their cases.
[49] I find no basis to make an award of costs against the defendant in favour of the plaintiffs. I do not agree with the written or oral submissions of the plaintiffs that the conduct of the defendant was of any type that would cause me to depart from the usual provisions that in civil litigation the successful party is entitled to their costs. I do not accept that the hospital failed to produce documents during the litigation in a timely way. Plaintiffs’ counsel made this submission often during the course of the trial. He made it at the closing of trial. He made it again in oral submissions before me regarding the issue of costs. I expressly rejected this proposition in my reasons for decision at paras. 228 to 237.
[50] In my view the plaintiffs should pay a reasonable amount of costs to the defendant.
[51] The role that the various offers to settle made by the defendant should play in this matter is important. Rule 49.10(2) provides:
Defendant’s Offer
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (2); O. Reg. 284/01, s. 11 (2).
[52] In my view, the plaintiffs failed to accept the defendant’s offers which would have given them a result that was more favourable than the result they received after trial. Interestingly, the second defendant’s offer (August 30, 2016), made to all three plaintiffs on similar terms, did not expressly revoke the first offer (April 15, 2015) which had been made to all three plaintiffs on similar terms. Otherwise, in my view, both offers made by the defendant were Rule 49.10 compliant.
[53] I note the plaintiffs did not provide any precise or clear evidence as to their partial indemnity costs up to either date, April 1, 2015 or August 30, 2016. The plaintiffs did provide a chart of their disbursements, albeit segregated into two time periods, 1996 to 2013 and 2014 to 2017. Even though the first period was discounted to 50%, it appears that disbursements were incurred at a 2 to 1 ratio in the second time frame (2014 to 2017) relative to the earlier period.
[54] For example, Ms. Endean’s 1996–2013 disbursements at 50% were set out to be $26,337.86. Doing the easy math 100% is $52,675.72. This is to be contrasted with her disbursements at 100% for 2014-2017 to be $103,605.05.
[55] The parties did not expressly address the effect of Rule 49.10 in their respective arguments. I take it that this was because of the line of authority commencing with the Ontario Court of Appeal decision in S. & A. Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 6856 (ON CA), 1 O.R. (3d) 243, which held that while not expressly provided in the Rules, where a plaintiff fails to accept a significant offer to settle by the defendant and the action is dismissed, the defendant should be awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.
[56] It is trite to say that Rule 49.10 was designed as an incentive to settlement, and its effects are to be applied in the majority of cases (see Jarbeau v. McLean, 2017 ONCA 115 at para. 82). However, following the line of authority commencing with Strasser and affirmed by the Court of Appeal in cases such as Davies v. Clarington (Municipality), 2009 ONCA 722, I will exercise my discretion in this case and find that Rule 49.10 does not apply in this matter.
[57] There is no question that the defendant is entitled to be paid partial indemnity costs to the date of the first offer, April 1, 2015. There is also no question the defendant is also entitled to its costs thereafter. The only issue is the scale.
[58] It is clear to me the defendant did make significant efforts to attempt to reduce the amount of trial time by making attempts to narrow the issue by serving requests to admit and proposed agreements as to facts. In my view their efforts were reasonable.
[59] In addition, the offers to settle would have led to a better result for the plaintiffs than the result they achieved at trial. Counsel for the plaintiffs did not provide any authority for the proposition that the financial means and circumstances of the losing party should be taken into account in determining liability for costs. While I do accept these particular plaintiffs are of modest means, it struck me that the argument on this hearing was premised on an assumption that it was the defendant who had forced this trial on the plaintiffs. In fact, it was the other way around.
[60] Counsel for the plaintiffs again brought up the issue of the alleged failure of the hospital to produce a list of patients to recall. I heard this evidence at trial. I rejected it. It has no bearing on a finding regarding costs.
[61] Counsel for the plaintiffs spent the majority of his time in oral argument discussing the fact my decision had made an apportionment finding against Vitek and Instrumentarium, admittedly non-parties to this action. I understood this argument to be that because I had made an apportionment finding against two “non-parties”, I should also make a costs apportionment against them as well. It was suggested that, because in the Hearsey matter I had found non-parties 75% responsible for damages, I should reduce the quantum of the costs claimed by the defendant in these cases by 75%. I find this argument ungrounded in any principle that arises from the authorities on costs or the provisions of Rule 57. On this particular hearing I was not dealing with a situation of joint tortfeasors. I was dealing with a single defendant who, in three separate cases that were tried together for efficiency purposes, was found to be 100% successful in the litigation against a series of single plaintiffs and their Family Law Act claimants.
[62] I do not accept the proposition that I should substantially reduce the defendant’s claim for costs because of the apportionment decision I made in a related matter.
[63] In all, I am satisfied that the quantum of costs as submitted by the defendant was quite reasonable. I find the hours spent on the file appear to be reasonable for the scope of the matter at issue. I find the hourly rates charged by the counsel involved were also very reasonable. I say this for a number of reasons.
[64] The matters have been going on for twenty years. The trial took 41 days. The evidence of the plaintiffs took the majority of trial time. The defendant did the majority of the work in preparing the voluminous document briefs at least in so far as binding and photocopying the paper. The defendants had attempted to bring the issue upon which they were ultimately successful (the limitation defence) before the court by way of a summary judgment motion. A trial was required in the view of the motions judge. I made my decision that the plaintiffs’ claims were-statute barred based upon the evidence of trial. I did not, contrary to the submission of the plaintiffs on this hearing, decide the question simply on the pleadings and the statute.
[65] The quantum of costs requested by the defendant comes from a mathematical calculation of hours spent times hourly rates for the three lawyers involved in the file. In my view, a consistent theme of more recent jurisprudence on the fixing of costs is a caution against being “beholden to the math”, which is to say a judge should not automatically accept the result of hours times rate and instead to take a more global approach, which does emphasize the reasonable expectations of the opposing party to pay a certain quantum of costs. In this case, I do have some evidence of what the plaintiffs might have been expecting by way of costs which comes from what they had themselves been charged by their lawyers to the eve of the trial. In the trial management process, I had a written confirmation from counsel for the plaintiffs that as of April 2016 they had been provided by counsel with a “best estimate” of what a twelve week trial would cost. The trial turned out to have taken somewhat less time, if all 41 days had been back to back, but on a calendar basis it did take us about three months to complete the liability portion.
[66] In my view, the best evidence of the reasonableness of the defendant's claim for costs, comes from a comparison with the plaintiffs’ outline of fees charged which was contained in the materials before me. The plaintiffs had provided the defence with a summary of its costs and disbursements as of August 31, 2016. The plaintiffs’ claim for disbursements was significantly greater than that of the defence as of that time.
[67] The plaintiffs’ fees had been segregated by time, as had been the case for the amount of disbursements noted previously in this judgment. Apparently for the plaintiffs, the fees for the 2014 to 2016 period vastly exceeded those that had been charged for the 1996 to 2013 period. For Ms. Endean it was by a ratio of roughly 9 to 1. She had incurred $19,234.20 for fees for the pre-2014 period and $185,423.33 for fees for the 2014 to August 31, 2016 period. The total pretrial amount was $204,657.53 for fees. These ratios were similar for Mr. Karam and Ms. Lind.
[68] This is to be contrasted with the actual billings the defendant had made for efforts they attributed to defending Ms. Endean’s claim, to the end of trial, in the amount of $239,278.64. I expect that by the end of trial the plaintiffs were facing bills for fees in excess of those that the defendant had been charged.
[69] In my view, the mathematical approach does not conflict with a global approach in this case if the goal is to determine a reasonable amount that might be expected to be paid by an unsuccessful party. This is because the comparison of what was being charged by both sides on a full indemnity basis is available and is relatively similar. I find the plaintiffs were aware that this was a big case in terms of the money that was being spent to prepare it to go to trial, and that the defendant was also spending serious money defending it.
[70] I am mindful however of the direction of the Court of Appeal in Davies contained at para. 40 where Epstein J.A. stated:
40 In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework - as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.
[71] I do not find that the plaintiffs engaged in egregious behaviour deserving of sanction for their conduct of the trial. The plaintiffs put in their case in a particular fashion. The evidence in my view did not support the conclusions they wished me to draw. However, the case was not pursued in a way that I would see as attracting substantial indemnity costs following the making of the first offer. Measured against the chronology of the case, the first defendant offer came in during what might be described, using a hockey metaphor, as the “middle of the third period”. The case had been going on for almost twenty years. It was a year and a half before trial and a trial date was clearly contemplated. It came after the defendant had tried the motion for summary judgment. I can understand why the plaintiffs took the matter to trial. However, the fact of their modest means is not sufficient to shield them from what is otherwise the usual result when a plaintiff tries but fails to prove their case.
[72] I find in this case that the mechanical calculation of costs converges or is in concert with a reasonable amount of cost that should be paid for a matter of this magnitude. Stepping back from it, while the amount of costs being sought is large, it is consistent with this prolonged and difficult piece of civil litigation by which the plaintiffs were wholly unsuccessful.
[73] Accordingly, I award partial indemnity costs to the defendant for the entirety of the action. I note that the plaintiffs had three counsel working on this file. The defendant had three counsel working on this file. I am allowing costs for all three defendant’s counsel. This was a serious matter that required multiple counsel to prepare and present, on both sides. Disbursements will be allowed to the defendant at 100% for the entirety of the action. Relying on the written material filed by the defendant which set out partial indemnity costs from the beginning of each respective action to the conclusion of the liability portion of the trial, I order the following plaintiffs to pay to the defendant Hospital the following amount for costs:
Paulette Endean: $143,567.18 for fees $42,873.75 for disbursements Total $186,440.93
The Estate of Andrew Karam $134,646.98 for fees $40,156.74 for disbursements Total $174,803.72
Sherry Lind $136,087.58 for fees $43,271.86 for disbursements Total $179,359.44
[74] Order to go accordingly. No costs for the costs submission portion of this matter.
____ “original signed by”____________
FITZPATRICK J.
Released: December 1, 2017
COURT FILE NO.: CV-97-0701, CV-97-0271 & CV-14-0209
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CV-97-0701:
ENDEAN ET AL.
Plaintiffs
- and -
ST. JOSEPH’S GENERAL HOSPITAL
Defendant
CV-97-0271:
ANDREW KARAM
Plaintiff
- and -
ST. JOSEPH’S GENERAL HOSPITAL
Defendant
CV-14-0209:
LIND ET AL.
Plaintiffs
- and -
ST. JOSEPH’S GENERAL HOSPITAL
Defendant
JUDGMENT ON COSTS
FITZPATRICK J.
Released: December 1, 2017
/sab