Court File and Parties

COURT FILE NO.: CV-16-559498 DATE: 20180517 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANK COLIN, Plaintiff/Responding Party AND: DESMOND HAMPDEN DIXON and THOMSON ROGERS, Defendants/Moving Parties

BEFORE: Cavanagh J.

COUNSEL: Paul Harte and Maria Damiano, for the Plaintiff/Responding Party William G. Scott, for the Defendants/Moving Parties

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] In this action, the plaintiff sues his former lawyers who had represented him in a medical negligence action. The plaintiff moved for summary judgment on the ground that there was no genuine issue requiring a trial in relation whether the defendants are liable for the plaintiff’s damages. The plaintiff’s motion was dismissed.

[2] The defendants moved for summary judgment dismissing the action on the ground that there was no genuine issue requiring a trial in relation to whether the plaintiff’s action was commenced after the expiry of the limitation period. The defendants’ motion was also dismissed.

[3] Both motions were heard together. I received written submissions with respect to costs, with the last submission sent on May 1, 2018. This is my decision with respect to costs of both motions.

[4] The defendants seek costs of the plaintiff’s unsuccessful motion on a partial indemnity scale. They seek fees in the amount of $15,177.59 and disbursements of $12,588.64. The fees claimed are based upon 56.7 hours spent by senior counsel at $235 per hour and a small amount of time by a law clerk, plus HST. The claimed disbursements include charges from two experts, Dr. Cheung and Dr. Sahjpaul, in the aggregate amount $9,570.

[5] The plaintiff takes no exception to the time or hourly rates claimed by the defendants.

[6] The plaintiff submitted a bill of costs in support of his claim for partial indemnity costs of the defendants’ unsuccessful motion for summary judgment claiming fees of $15,930.89 and disbursements of $861.56 (including HST on disbursements). The fees on a partial indemnity scale are calculated based upon 60.1 hours of time for counsel appointed by LAWPRO at an hourly rate of $235 and 27.20 hours spent by counsel of record for the plaintiff at an hourly rate of $325, plus some additional time expended by junior counsel (7.2 hours) and by a law clerk (2. 3 hours) at hourly rates of $225 and $80, respectively.

[7] The plaintiff submits that each party had a success and a failure, but that there has been no final determination of any issue. The plaintiff submits that it was reasonable for him to have brought his motion, and that the motion resulted in the action moving forward considerably and the issues being narrowed.

[8] The plaintiff submits that costs of both motions should be left to the trial judge (or that costs of both motions be in the cause) on the ground that both motions were heard together and both motions were dismissed. The plaintiff submits that if he succeeds at trial, it would be just that he recover the costs of his motion for summary judgment, even though he was unsuccessful. In the alternative, the plaintiff submits that there should be no order as to costs because the plaintiff’s entitlement to costs is roughly equivalent to the defendants’ entitlement to costs.

[9] In respect of the plaintiff’s motion for summary judgment, the plaintiff and the defendants relied upon evidence from experts in relation to the standard of care of a legal practitioner in the circumstances of this case, and from medical professionals in relation to the standard of care of a surgeon in the circumstances of this case. Although this motion was dismissed, the expert evidence will be needed for and used at trial.

[10] The defendants submit that it would not be just to award costs of the motions in the cause, and that neither party should receive costs for a failed motion for summary judgment. The defendants also submit that the plaintiff’s motion was more complex than the defendants’ motion, and that the plaintiff’s motion involved considerably more evidence, including expert evidence, cross-examinations and one examination of a witness pursuant to r. 39.03. The defendants submit that it cannot be said that the parties would reasonably expect the costs of the unsuccessful party on each motion to be the same.

[11] In my view, this is not one of the exceptional cases where it would be appropriate to depart from the usual approach that costs of a motion should be fixed and made payable within 30 days, with the exception of the disbursements for charges for Dr. Cheung and Dr. Sahjpaul. The defendants are likely to rely upon evidence from these witnesses at trial and, in my view, it would be more just to fix these disbursements and award costs of these disbursements in the cause.

[12] With respect to the defendants’ claim for costs of the plaintiff’s unsuccessful motion for summary judgment:

a. I fix fees as claimed at $13,431.50 which, together with HST, totals $15,177.59.

b. I fix disbursements in the total amount of $12,588.64 as claimed. This amount includes $3,375 for the charge for Dr. Cheung, $5,900 for the charge for Dr. Sahjpaul, and $295 for HST on Dr. Sahjpaul’s account, which totals $9,570.

[13] I order that fees fixed in the amount of $15,177.59 (inclusive of HST) and disbursements fixed in the amount of $3,018.64 (inclusive of HST), a total of $18,196.23, be paid by the plaintiff to the defendants within 30 days. The disbursements for the charges for the accounts of Dr. Cheung and Dr. Sahjpaul in the amount of $9,570 (inclusive of HST) are costs in the cause.

[14] With respect to the plaintiff’s claim for costs of the defendants’ unsuccessful motion for summary judgment, I rely upon the principle expressed by the Court of Appeal in Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 26 that the objective in awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than the amount fixed by the actual costs incurred by the successful litigant.

[15] In my view, the fees claimed by the plaintiff exceed the amount that would be fair and reasonable for the unsuccessful defendants to pay for this motion. The motion was certainly important to the parties and, if it had succeeded, the plaintiff’s action would have been dismissed. Nevertheless, I agree with the submission made by the defendants’ counsel that the parties would not expect the costs of the unsuccessful party on each motion to be the same. The plaintiff’s motion involved considerably more evidence than the defendants’ motion, and it was more complex.

[16] I conclude that the fees claimed by the plaintiff should be reduced to $10,000 to arrive at a fee that, in my view, reflects the fair and reasonable expectations of the unsuccessful defendants. The reduction also addresses that there may have been some overlap in the services provided by each of two senior counsel in relation to this motion. The Bill of Costs that was provided to me lacks sufficient detail for me to make this determination with any precision.

[17] In respect of the defendants’ motion for summary judgment:

a. I fix fees in the amount of $10,000 (exclusive of HST).

b. I fix disbursements in the amount of $861.56 (inclusive of HST).

[18] I order that fees in the amount of $11,300 (inclusive of HST) and disbursements in the amount of $861.56 (inclusive of HST), a total of $12,161.56, be paid by the defendants to the plaintiff within 30 days.

Cavanagh J.

Date: May 17, 2018