Court File and Parties

COURT FILE NO.: CV-09-392886

MOTION HEARD: 20160615, 20160823, 20161102, 20170628

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LORENA CHEESMAN, RUBEN REINOSO and YVONNE REINOSO, Plaintiffs

-AND-

CREDIT VALLEY HOSPITAL, DR. MICHAEL MILLER, DR. NORMAN EPSTEIN, DR. ALICIA SARABIA, DR. LORNE SMALL, DR. DEEPA SONI, DR. ROBERT DAILY, KATHLEEN DYKSTRA, BARBARA MCGOVERN, ANA-LIZA TEODORA, BILLY DANIEL, YAMILEE JULIEN, ROSE BECKFORD and JOHN and JANE DOE (representing a number of physicians, health care professionals and/or Hospital employees involved in the care and treatment of LORENA CHEESMAN on December 24 and December 25, 2007 at CREDIT VALLEY HOSPITAL), Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Amani Oakley, Oakley & Oakley Professional Corporation, counsel for the plaintiffs Fax: 905-943-4045

Ronald P. Bohm, SBMB Law, Co-Counsel for the plaintiffs Fax: 905-884-5445

William D. Black and Atrisha Lewis, McCarthy Tetrault LLP, counsel for defendants, Dr. Michael Miller, Dr. Norman Epstein, Dr. Alicia Sarabia, Dr. Lorne Small, Dr. Deepa Soni Fax: 416-868-0673

Chris Kinnear Hunter, Lenczner Slaght Royce Smith Griffin LLP, counsel for the defendant, Dr. Robert Daily Fax: 416-865-2866

Carole Jenkins, Smockum Zarnett LLP, counsel for the defendants, Billy Daniel and Rose Beckford Fax: 416-862-2793

HEARD: June 15, 2016, August 23, 2016, November 2, 2016, June 28, 2017

REASONS FOR DECISION ON COSTS

[1] This costs decision relates to the plaintiffs’ undertakings and refusals motions that were brought against the defendants set out below. I made rulings on June 28, 2017, June 29, 2017 and as set out in my Reasons For Endorsement dated March 21, 2018 (oral arguments made on June 15, 2016 and August 23, 2016).

Costs of Motion Against Defendants, Doctors Epstein, Miller, Sarabia, Small and Soni (“defendant physicians”)

[2] Examinations for discovery of the five defendant physicians were conducted in January, February and March 2012; however, by December 2015 when this motion was scheduled, the defendant physicians had not answered any of their undertakings or answered any questions that had been refused.

[3] The plaintiffs seek costs on the basis that the motion was necessary given complete non-compliance by the defendant physicians. Although the defendant physicians answered many undertakings and refused questions prior to the hearing of the motion, the plaintiffs submit that they were successful on the majority of the questions argued at the hearing.

[4] The defendant physicians submit that there should be no costs of the motion despite the fact that they were successful on the majority of the questions argued. In addition, they submit that their counsel incurred substantial costs thrown away due to plaintiffs’ counsel having advised their counsel that a third day of oral argument was necessary when it was not. As this issue was not argued at the hearing where evidence could have been filed to support the defendant physicians’ position, I am not inclined to consider this issue in fixing costs.

[5] In my view, the defendant physicians were mostly successful with respect to the rulings made in my endorsement dated March 21, 2018. However, I have considered that this motion was necessary because the defendant physicians did not answer many of their undertakings until after this motion was served. As such, they caused unnecessary costs to be incurred by the plaintiffs.

[6] Having considered that the plaintiffs were successful on many of the refusals, albeit less successful than the defendant physicians, and the fact that the defendant physicians caused the plaintiffs to incur unnecessary costs, in my view, it is reasonable that the plaintiffs be entitled to a portion of their costs of this motion against the defendant physicians.

[7] Therefore, the plaintiffs’ costs are hereby fixed in the all-inclusive sum of $6,800, payable within 30 days.

Costs of Motion Against Defendant, Dr. Daily

[8] The examination for discovery of Dr. Daily was held on January 23, 2015. He gave seven undertakings and refused to answer four questions. After this motion was served in or about December 2015, Dr. Daily answered all undertakings and three of the four refusals within a short period of time.

[9] Dr. Daily was successful on the one refusal argued at the hearing.

[10] The plaintiffs seek modest costs for the motion on the basis that the motion was necessary as Dr. Daily had not answered any of his undertakings by the time this motion was served.

[11] Notably, there is no discovery plan in this action. Discovery plans are mandatory pursuant to rule 29.1. Had the parties agreed to a discovery plan, it would have included a timeline to answer undertakings and to bring discovery motions. (subrule 29.1.03(3))

[12] In my view, it is not reasonable that the plaintiffs receive costs of preparing this motion as Dr. Daily answered all undertakings and refusals, except one, within a short period of time after the motion was served, and there was no discovery plan that set out a timeline upon which undertakings were to be answered.

[13] Therefore, Dr. Daily is entitled to his costs of this motion having been successful on the one refusal argued which are fixed in the amount of $3,257.64 inclusive, payable within 30 days.

Costs of Motion Against Defendants, Rose Beckford and Billy Daniel

[14] Examinations for discovery of these defendants were held on January 21, 2015 and August 15, 2015, respectively. Rose Beckford gave 10 undertakings and refused to answer 23 questions. Billy Daniel gave 12 undertakings and refused to answer five questions.

[15] After this motion was served in or about December 2015, these defendants answered numerous undertakings. To their credit, the parties were able to negotiate a resolution on the balance of the issues on this motion.

[16] The plaintiffs seek costs for the motion on the basis that the motion was necessary to instigate compliance with undertakings which necessitated at least 10 hours of additional counsel’s time in discussions with opposing counsel and updating the chart.

[17] For the same reasons given in paragraphs 11 and 12 above, I find that the plaintiffs are not entitled to costs of this motion.

Conclusion

[18] For the above reasons, the following orders shall issue:

(a) the defendants, Doctors Epstein, Miller, Sarabia, Small and Soni, shall pay the plaintiffs’ costs of this motion in the amount of $6,800 within 30 days;

(b) the plaintiffs shall pay the defendant, Dr. Daily, his costs of this motion in the amount of $3,257.64 within 30 days.

(c) there shall be no costs of this motion against the defendants, Rose Beckford and Billy Daniel.

(Original Signed)_________

Master Lou Ann M. Pope

Released: May 28, 2018