Court File and Parties

COURT FILE NO.: 13-44580 DATE: 2018-08-20 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

VLADISLAV BUKSHTYNOV, KATERINA BUKSHTYNOVA and KSENIA BUKSHTYNOVA, a minor under the age of 18 years, by her litigation guardian, the said Vladislav Bukshtynov Plaintiffs

Sumitra Lagoo and Daniel Roncari, for the Plaintiffs

- and -

MCMASTER UNIVERSITY, FLYING ANGELS RUNNING CLUB, GEORGE KERR, HWANG LEE and/or JOHN DOE RUNNER Defendants

Robert S. Sutherland, for the Defendant McMaster University M. Edward Key and Bradley M. Remigis, for the Defendants Flying Angels Running Club, George Kerr, and Hwang Lee

COSTS JUDGMENT

The Honourable Mr. Justice A. C. R. Whitten

I. INTRODUCTION

[1] The plaintiff Vladislav Bukshtynov (V.B.) and his spouse Katerina Bukshtynova (K.B., the spouse), and daughter Ksenia Bukshtynova (K.B., the daughter) brought the within action against the various defendants for injuries experienced by V.B. as a consequence of him coming in contact with Hwang Lee, a member of the Flying Angels Running Club (the running club) on a Saturday morning, December 10th, 2011 at the indoor track at McMaster University. The plaintiff claimed significant damages in the collective amount of $1,100,000.00 plus interest and costs.

[2] The trial before a jury was originally scheduled for 10 days, but it extended for 13 days.

[3] On May 25th, 2018, the jury returned a verdict of: 1) no liability on the part of the university and Hwang Lee; 2) the defendants George Kerr, the running club coach, and the Flying Angels 60% liable; and 3) V.B. was found 40% contributorily negligent.

[4] With respect to damages, the jury assessed them in the following fashion:

a) General damages for V.B. - $ 75,000.00 b) Family law claim of K.B., the spouse - 20,000.00 c) Family law claim of K.B., the daughter - 5,000.00 d) Out of pocket expenses - 1,883.00 Total - $101,885.00

[5] The usual invitation was made for the parties to either resolve the question of costs by agreement, or to exchange and to file their respective positions with this jurist. Those submissions have now been received.

II. ISSUES

a) Rule 49 offers were exchanged before trial. The jury findings were for amounts far less than the defence offers. Therefore, it is necessary to determine the appropriate rate of reimbursement both before and after the offer dates, applying the principles enumerated pursuant to Rule 57. b) The plaintiffs have requested a Sanderson order in which the defendants, the running club and Kerr the coach, pay for the cost of the university. Given the circumstances of this case, is that appropriate? c) With respect to the actual bills of costs submitted, what is fair and reasonable?

III. BACKGROUND FACTS SPECIFIC TO THE QUESTION OF COSTS

[6] The plaintiff V.B. was at the time of the incident a Ph.D. student at the university.

[7] On the morning of December 10th, 2011, he was running on the indoor track of the university. There were others using that track that morning, a bobsled team working in lanes three and four on endurance training, and the running club, which was doing sprints in lane two under the supervision of Kerr, the coach. There was some evidence that the plaintiff had wandered between lanes one and two and was wearing ear buds. There was evidence that he had been warned of the presence of the track club runners, one of whom was Hwang Lee. That fact, along with others, no doubt influenced the jury in finding him contributorily negligent when he continued to run despite such warnings.

[8] Hwang Lee, proceeding at a high rate of speed, was unable to safely avoid V.B. and came into contact with V.B.’s right shoulder, effectively sending him flying.

[9] V.B. required an open reduction on his right shoulder and the stabilization of the joint. V.B. has declined further surgery for the removal of the necessary hardware. Needless to say, he has had to bear the discomfort of recovery and a reduced range of motion. That being said, Dr. Axelrod, an expert witness for the plaintiff, described his range of motion as good. Also with digital visual aids, it was debatable that V.B.’s activities as a university lecturer were significantly affected.

[10] V.B. has prospered in academia. He was at the time of trial an assistant professor at the Florida Institute of Technology. It is obvious that this jury did not believe there were any future economic losses, whether it was income loss or otherwise.

[11] The defendants were joined as such by the Statement of Claim. Although the university and the running club, member and coach cross-claimed against each other, the trial proceeded as if they were not adverse in interest. As noted in the jurat, the running club coach and runner were represented by the same counsel.

[12] Given that the plaintiff and his family were well before the time of the trial residents of the United States, the university brought a motion for security for costs initially in October of 2017. That first motion was settled for the university’s costs of the motion, namely $800.00, on the understanding that the ATE insurance (After-the-Event insurance) would be available as security should the plaintiff failed to yield a successful judgment against McMaster. One notes that the premium for that insurance is referred in the plaintiff’s list of disbursements as of April 25th, 2018, and is described as being unpaid.

[13] On April 24th, 2018, the university made a formal offer to contribute the sum of $30,000.00 towards the settlement of all the plaintiff’s claims. Additionally, the university would pay prejudgment interest on that sum to the date of the offer, 15% of the partial indemnity costs of the plaintiff, and 15% of any assessable disbursements.

[14] The next day, April 25th, 2018, the defendants collectively agreed to pay a Rule 49 offer in which $62,500.00 was payable for general damages; plus prejudgment interest; the amount of $21,500.00 for loss of competitive advantage; the amount of $14,750.00 for the derivative family law claims of K.B., the spouse, and K.B., the daughter; the amount of $19,000.00 for the American subrogated claims along with prejudgment interest in those amounts; $3,750.00 for travel expenses and prejudgment interest; $58,750.00 for future medical and rehabilitation expenses; OHIP subrogated claim; costs; and disbursements to be agreed upon or assessed up until the date of the offer. Counsel for the plaintiff described this offer as being worth $180,000.00 plus the OHIP subrogated interest.

[15] That same day, the plaintiffs made a Rule 49 offer to settle in the amount of $1,216,550.00 plus costs and disbursements.

[16] Obviously, the two sides were miles apart, and in fact the plaintiff’s offer was so extreme that it effectively was a message that there was no way this matter would settle. Perhaps it was a stubborn refusal to consider settlement that led to the plaintiff failing to procure costs insurance as per the security for costs motion. As for the security for costs understanding as of October 2017, that failure to follow through necessitated a second motion to security for costs on the eve of trial. That second motion produced an order by Justice Parayeski, dated May 7th, 2018, requiring that the plaintiff V.B. pay into court $86,161.37 as security for costs, before any witnesses were called.

[17] That failure to pay the premium to ATE is bizarre and nonsensical. For approximately $1,500.00, the plaintiff would have had some piece of mind and would have avoided paying in personal funds as per the order of Parayeski J. One would wonder what kind of advice is the plaintiff receiving or more to the point, what kind of instructions is he giving to his counsel? This court agrees with counsel for the university that the only possible explanation for this failure was that the plaintiff refused to address the possibility of any liability on his part for the costs of the university, even in the face of ostensibly fair Rule 49 offers. The plaintiff had an agenda.

[18] Within days of the commencement of the trial and the testimony of the plaintiff V.B., certain realities emerged. Firstly, the plaintiff’s injury against the backdrop of the SCC trilogy cases, would be worth general damage-wise in the range of $100,000.00 to $125,000.00. Secondly, the future loss of economic benefits, specifically future wage loss, was minimal or virtually non-existent. The plaintiff had been quite successful in his academic career. He was as of the time of trial, an assistant professor at the Florida Institute of Technology; he had two summer invitations to be a visiting professor at Stanford University. Thirdly, contributory negligence on the plaintiff was very much a live issue.

[19] As per the Rules, this jurist was not advised as to the existence or nature of any Rule 49 offers. As the judge with a jury making the essential determinations, I could have blithely sat back and let the costs clock tick away. Or given what I believe is a shared concern amongst judges for the impact of litigation costs upon access to justice (see the opening remarks of Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87), I could suggest as I did on two occasions midtrial pretrial by another jurist. 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.

[20] The continuation of the trial did not make economic sense in terms of what could be gained by the plaintiff in the face of mounting costs for all parties. By continuing the trial, the likelihood, if any, amount being awarded being a “Pyrrhic” victory loomed large.

[21] The plaintiff refused to engage in any midtrial pretrial. There is no joy in a concern being actualized. The jury verdict was a “Pyrrhic” victory. Sometimes we cannot save people from themselves. Now that we have the full picture, which includes the pretrial offers, it is quite apparent that the plaintiff V.B. was stubborn (a characteristic which actually came out in the trial testimony; he steadfastly refused to accommodate to the presence of other users on the track that morning), and in the end the only person he hurt was himself.

IV. APPLICABLE LAW AND ANALYSIS

i. General Principles

[22] Referring as did Justice S. Gomery in Greenough v. Maple Ridge Media Inc., 2018 ONSC 4429 to the normative or default approach which was summarized by Justice Cumming in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at paragraph 5 it is stated:

In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

[23] Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding are in the discretion of the court, and the court can decide by whom and to what extent the costs should be paid. As with any discretion, it should be exercised fairly and reasonably.

[24] Rule 57.01 sets out the general principles to be applied. The preamble to the rule invites a court to consider the results of any written offer.

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[25] The factors listed in this rule are to be “fleshed out” as it were in the particular case.

ii. Rule 49 Offers

[26] Rule 49.10 sets out the 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 litigation. In other words, to take a clinical, objective approach to what they are embroiled in. The incentive is to make a fair offer and there are cost consequences to the other side if they do not achieve the offer or better than.

[27] The offers made April 24th and 25th are within the rule. According to Rule 49.10(1), if a plaintiff’s offer is as good as or better than the judgment, the plaintiff receives partial indemnity costs to the date of the offer and substantial indemnity costs from the offer forward.

[28] In the case at hand, the situation was effectively reversed; the defendant’s offer was greater than the verdict. Rule 49.10(2) provides that if the plaintiff obtains a judgment which is as favourable as the defence offer or less, the plaintiff is entitled to partial indemnity costs to the date of the offer and the defendant is entitled to partial indemnity costs from the offer date “unless the court orders otherwise”. This last phraseology is a reiteration of the discretion a court possesses (which is again referred to in Rule 49.13).

[29] The plaintiff, the running club, coach and Hwang Lee accept the first component of Rule 49.10(2); i.e. plaintiff gets partial indemnity up until the time of the offer. The running club, coach and Hwang Lee propose to the court that they receive partial indemnity costs up to the time the court recommended a midtrial pretrial (May 14th, 2018) and then for them to receive their substantial indemnity costs. On behalf of Hwang Lee, it is proposed, because he was effectively exonerated from blame, that he receive his costs from the inception of the action onwards. The university, equally exonerated, seeks its partial indemnity costs from the commencement of the proceedings until the date of the offer and thereafter substantial indemnity costs.

iii. Sanderson Order

[30] The plaintiff claims a Sanderson order in which the unsuccessful defendants, the running club and George Kerr, pay the costs of the university, the successful defendants. It is therefore necessary before discussing what rates of reimbursement are applicable at a particular timeframe to decide if there is going to be a shifting of responsibility to pay as per a Sanderson order.

[31] In Moore v. Wienecke, (2008) 90 O.R. (3d) 464, 2008 ONCA 162, Justice MacPherson, writing for the panel, stated:

In a multiple-defendant case in which the plaintiff succeeds against some defendants but not against others, the “normal course” is for the unsuccessful defendant to pay the plaintiff's costs and the plaintiff to pay the successful defendant's costs: see Mark M. Orkin, The Law of Costs, 2nd ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at 2-108. Sanderson orders -- like Bullock orders, which are based on the same rationale -- are exceptions to that general rule.

[32] Apparently, the only difference between the two orders is the means by which the successful defendant is reimbursed. With a Bullock order, the payment is indirect in that the unsuccessful defendant reimburses the plaintiff who in turn pays the successful defendant. With a Sanderson order, the unsuccessful defendant pays the successful defendant directly.

[33] The determination of whether a Sanderson order is appropriate is to be done in two steps. Firstly, the court asks the “threshold question”, was it reasonable to join the defendants together in one action? The plaintiff argues that it was reasonable to bring the action as it did against the university and the running club, coach and runner. This court agrees. The actions of the defendants were intertwined and took place in the same unique location, the indoor track at the university.

[34] If the court answered that threshold question affirmatively, the court is to exercise its discretion to determine whether a Sanderson order would be just and fair in the circumstances (ibid, paragraph 41).

[35] In exercising the latter discretion, there are a number of factors.

[36] Did the defendants at trial try to shift responsibility onto each other as opposed to concentrating on meeting the plaintiff’s case? (Ibid, paragraph 46). Although there were cross-claims between the defendants, the defence of the action was unified and the defendants did not attack each other; they did not act as if their claims were adverse. The defendants concentrated on what happened that fateful morning, and in particular what contribution the plaintiff V.B. himself made with respect to what transpired. The defendants definitely share the challenging of the damages claimed.

[37] A second factor is whether the unsuccessful defendant caused the successful defendant to be added as a party? That was not the case in this matter (ibid, paragraph 48).

[38] Thirdly, were the actions against the two principal defendants, namely the university and the running club, independent of each other? (Ibid, paragraph 49). Again, the two actions were intertwined. The plaintiff was alleging that the university was negligent in allowing the running club to use the lanes they did that morning and that the latter club misused the facility to the detriment of the plaintiff.

[39] Fourthly, some cases refer to the ability of the plaintiff to pay (Ibid, paragraph 50). Counsel for the plaintiff notes that the plaintiff is an academic and consequently is "remunerated differently than if he worked in the private sector." His income tax returns showed income in 2017 of $67,217.71 (USD). Nevertheless, the plaintiff did have the possibility of costs insurance with ATE which would have covered these costs. That was the understanding behind the original order for security for costs. Counsel did not pay for that insurance despite that understanding (possibly on the instructions of the plaintiff himself). The plaintiff had the ability to pay $86,161.30 into court on the eve of trial. It may not by easy but the plaintiff did and does have the ability to pay.

[40] For all of the above, it is not fair and reasonable that there be a Sanderson order especially given the irresponsible litigation behaviour on the part of the plaintiff.

iv. Partial and Substantial Indemnity Rates

[41] Rule 1.03 defines "substantial indemnity costs as "costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A." Justice Spies in Newlands Estate v. Newlands Estate, [2018] O.J. No. 2598 at paragraph 54 construes the above phraseology to describe substantial indemnification costs as 1.5 times the amount of partial indemnity costs, in other words typically partial indemnity costs are 60 percent of substantial indemnity rates.

[42] Keeping in mind that in the past, discussion by courts as to the costs referred to party - party costs and solicitor client costs, those terms are equivalent to the terms partial v. substantial indemnity. That being said, precedent as to what factors led to the granting of the higher rate is of assistance.

[43] In S & A Strasser Ltd. v. Richmond Hill (Town), (1990), O.J. No. 2321 (OCA), Carthy J. having reviewed ruled 49.10(1) and (2) commented that:

...it seems an anomaly that the plaintiff should be awarded solicitor-and-client costs following the date of an offer, while the defendant only receives party-and-party costs. The answer is found in appreciating that this rule assumes that the plaintiff has recovered a judgment of some value. Without the rule, that plaintiff would normally recover party-and-party costs. The rule gives that plaintiff a bonus for an offer lower than the recovery by elevating costs to the solicitor-and- client level following the offer. The bonus to a defendant who makes an offer higher than the recovery is that the defendant pays no costs following the offer and, in addition, recovers party-and-party costs for that period of time. That rationale does not fit a case where the plaintiff is totally unsuccessful because, without the rule, the defendant is normally entitled to party-and-party costs. The words in the rule "and the plaintiff obtains a judgment as favourable" make it clear that the rule has no application where the plaintiff fails to recover any judgment.

[44] Justice Smith in Michael Dunston v. Flying J. Travel Plaza, (2007) OJ No. 4089 refers to Justice Carthy's observations above and extends his findings to state that Rule 49(10)2 only comes into play if the plaintiff recovers a judgment of some value. It is really questionable that the jury verdict was of some value as it was within the context of costs payable by the plaintiffs.

[45] Beyond considering the result, the preamble to Rule 57.01 refers to, that the discussion invariably shifts to behaviour of a party that prolongs or exacerbates the costs of all or some of the parties. Carthy J.A. and S.A. Strasser spoke of, "An expression of the courts disapproval of (the parties) behaviour".

[46] Justice Malloy in Standard Life Assurance Company v. Elliott, (2007) O.J. No. 200131 describe "A situation(s) in which such an award is appropriate is where one party to the litigation has behaved in an abusive manner/brought proceedings wholly to void the merit and unnecessarily run up the costs of litigation."

[47] Justice Shaw in Metz v. Tremblay Hall, [2007] Carswell Ont, 1056 A.C.W.S. (3d) 536 quoted Henry J. in Apotex Inc. v. Egis Pharmaceuticals, (1991), 4 O.R. (3d) 321 (Ont. S.C.J.) who spoke of a party pursuing "The litigation willy nilly", and like Justice Malloy, that higher level of costs being reserved for instances where the court wishes to show its disapproval of conduct that is "aggressive or congumelious".

[48] Justice Shaw did distinguish between improper conduct and unwise conduct (ref. para. 11). The latter is less blame worthy but if repeated throughout a substantial part of the litigation it does take on the characterization of being improper because of its repetitive nature.

[49] In Davies v. Clarington (Municipality), 2009 ONCA 722, the judgment of the court contains such references as, "Reprehensible conduct...egregious behaviour, deserving of sanction...malicious, counterproductive behaviour conduct".

[50] Applying the above factors, it cannot be said that the plaintiff's behaviour was specifically censorable before the offers of April 25, 2018. A failed mediation per se is not indicative of egregious behaviour, it could have been quite situational in that the plaintiff had his first experience with the possibility of settlement and was not so inclined. Therefore, in accordance with the first part of Rule 49.10(2) the plaintiff is entitled to his partial indemnity costs to the point of the offers, leaving aside for a moment, the reasonableness of those costs and disbursements.

[51] Having said that the offer of the plaintiff himself is something of a red flag for his continuing litigation behaviour. This is especially so in how he failed to follow through with the understanding as to the pre-trial security for costs. That refusal to obtain costs insurance was reckless and it left the university vulnerable in recovering its costs. Certainly, with the continuation of the trial, the amount paid in by the plaintiff would be progressively diminished in costs value, possibly far below what would be incurred by the successful defendants.

[52] By May 14, 2018 the three emergent realities spoken by the court earlier in this decision; namely (a) the extent of the general damages claim; (b) the virtually non-existent future economic loss and (c) the distinct possibility of a contributory negligence, were obvious to all. The reticence to settle was reckless and pernicious.

[53] For all the above the defendants are all entitled to their costs on a partial indemnity basis from April 25, 2018 to May 14, 2018 and thereafter to their costs and disbursements on a substantial indemnity basis. This does not preclude the court from giving those defendants who were completely successful some of their costs incurred before the offers of April 25, 2018.

V. DEFENDANT COST FINDINGS

(a) Hwang Lee and the Flying Angels Running Club

[54] It was inevitable that Hwang Lee was a defendant given the fact he had in fact collided with the plaintiff in the graphic video of the occurrence. Even though his counsel was the same as that of counsel for the running club and the coach, there still would be costs associated with the defence of Mr. Lee at trial which would include preparation as he himself testified. Counsel's suggestion for the pre offer work devoted to Mr. Lee a $5405.00, ie: 20 percent of the overall Flying Angels defence is not unreasonable. As for the post-offer costs of the running club, its coach and Mr. Lee, it is true the efforts were somewhat blended and the trial went for 11 days beyond May 14, 2018. The suggestion by counsel that the easiest way to calculate those costs is to take the average between substantial and partial indemnity rates is sound. The charging out for Mr. Remigis, a junior who did some of the heavy lifting at trial in terms of cross-examinations, at the same rate as a student is indicative of the reasonableness of the collective account.

[55] Therefore, the total payable by the plaintiff for the costs of these defendants is $69,156.00.

(b) McMaster University

[56] Counsel for the university obviously notes the finding of no liability against the university. The unreasonable offer of the plaintiff and the continuing refusal by the plaintiff to consider settlement as factors which extended the trial unnecessarily.

[57] Because of the allegations made by the plaintiff with respect to the operation, signage, etcetera of the indoor track, it would be understandable that an engineer was hired. That expert did not testify is no doubt because of how the trial evidence emerged. Numerous lay witnesses were required; however to establish the interaction between the plaintiff and other participants at the track, and those elements of the plaintiff's behaviour which made an inherently dangerous situation even more so.

[58] The university seeks partial indemnity costs from the outset of the proceedings to the offer of approximately $46,264.04. One notes the criticism of the costs for the Wagg motion ie: Third-party productions and the second motion for security for costs. The former at $1096.84 is appropriate. The latter at $3907.60 was necessary giving the voiding of the ATE policy and should reflect the costs recovery of the first motion of $800.00. Therefore, the costs of those motions would be $3100.00.

[59] Given that the joining of the university by the plaintiff was not without merit, as it was obvious at the outset that the management at the track that day in question was an issue, and that it had to be tested out by the plaintiff, this court is not inclined to give even full, partial indemnity costs to the date of the offer. The university no doubt was not surprised to be added as a defendant and to some extent that is the "Cost of doing business" of operating a track to a diverse community of users.

[60] The motion for a dismissal given the existence of a waiver was understandable. The Court ruled against the motion on the basis that the context in which to waiver was created led to ambiguity as to its application. Despite that finding, it was appropriate for the university so act, and that was economically incorporated during the course of the trial.

[61] Considering the comparable amount of work that counsel for the running club, coach and runner expended, the appropriate amount of costs pre-offer for the university is fixed at $25,000.

[62] As mentioned above, the court considers it appropriate that the defendants receive partial indemnity costs between post-offer and May 14, 2018 and substantial indemnity costs post May 14, 2018. Again, fee and disbursement calculations of counsel for the co-defendants is informative as a comparable amount of work would have been expanded, save and accept for the motion for dismissal.

[63] Post-offer costs are fixed at $70,000 inclusive of disbursements making for a total of $95,000 payable to the university. Accordingly, the monies paid in on May 7, 2018 by the plaintiff shall be paid in partial satisfaction of those costs.

(c). The Plaintiff's Costs

i.) Fees

[64] As mentioned previously in reference to S & A Stasser ruling, part one of Rule 49.10(2) is not readily available to the plaintiff who fails to achieve a judgment of value. Obviously, what the plaintiff had achieved in the verdict was of some value, but certainly a far cry from what was originally claimed in excess of millions.

[65] Specific criticisms of the fees component on the plaintiff bill of costs are:

1. The characterization of the hourly rates of Ms. Lagoo and Mr. Kemeny;
2. Repeated review of a file necessitated by use of different juniors, for example, those incurred by Mr. Yan Lau and then those incurred by Mr. Roncari, and then S. Efstharous, Balopoulous and by Ryan Findlay, student-at-law and Nicole Howard, Howard Legal.
3. Doubling of resources by having Ms. Lagoo and Mr. Kemeny at the examinations for discovery.
4. The inclusion of work by a paralegal, Lisa Morris, to ensure compliance with a tickler system. Surely this is a matter of general overhead.

[66] The items listed demonstrate a reluctance to honour numerous reviews of a file by different persons. That repetition could be a function of the size of a firm. In a way, it illustrates how a sole practitioner could be a more efficient means of delivering services, it could also be a function of scale that should not be considered as costs. Not every cost within a law firm is a recoverable cost, there is still the concept of fixed costs which no doubt will range with the size of the organization.

[67] Given what has been stated before in comparables, namely, the pre-offer costs of counsel for the defendants and recognizing that because there are more defendants' issues to face than the plaintiff and his derivative classes. Pre-offer fees costs of the plaintiff are fixed at $30,000 inclusive of HST.

[68] As for the claim for $48,206.92 inclusive of HST for disbursements, counsel for the running club, coach and member has raised specific criticisms. The first concern is that the defendant should not be paying for examinations for discovery transcripts ordered by the plaintiff. The ultimate use of such transcripts is trial preparation, in particular, the ability to cross-examine opposing parties. Counsel could only incur that cost of the transcript of your own client as preparation for an anticipated cross-examination.

[69] There are occasions when such transcripts become the foundation for motions to compel answers and fulfillment of undertakings, but there is no evidence of such use in this matter.

[70] Given the use described as a costs of transcripts is denied.

[71] The running club defendants argue, understandably against the inclusion of costs with respect to the security for costs motion, it had nothing to do with them, as does the treatment of the monies paid in, there was absolutely no benefit to them. This is especially the case since the plaintiff voided the costs insurance. There is no available source to satisfy the running club's defendants' costs. Given the plaintiff's behaviour in this issue, it is appropriate that those disbursements be deleted.

[72] With respect to binding fees, file administration fees and photocopying costs, some of these must be attributable to basic overhead. Furthermore, would it not be the case that the intensity of these costs would be incurred as part of trial preparation. As the plaintiff literally forced a trial upon the defendants after the offers of the latter were quite reasonable, it is appropriate that such costs be deleted.

[73] Given that the travel expenses were incurred by Canadian citizens who chose to work stateside, it is debatable that such costs should be included.

[74] Certainly, Dr. Axelrod's trial attendance fee of $11,300 is deleted. It is extremely unlikely that that expense was paid as of the time of the offers.

[75] With respect to unpaid disbursements of the economic loss report and a cost of insurance the ATE. The latter was never paid and required the second motion for costs. The former was of questionable utility given the extremely hypothetical nature without a factual foundation. As noted, the jury returned a resounding zero for future economic losses. Both disbursements should be disallowed.

[76] The claim for the loss of work incurred by K.B. the spouse is not compensatable. There is no precedent for such a claim and even if it was considered, it would create havoc in litigation costs. There are simply some costs incurred by a litigant that are not compensatable, their lawyer's fees and disbursements are, but not the spill over costs, disruption and anxiety of being a litigant.

[77] Given all of the above, the pre-offer disbursements of the plaintiff is fixed at $13,108.00, therefore the total pre-offer costs of the plaintiff are fixed at $43,108.

VI. CONCLUSIONS

1. Given the denial of the Sanderson order, the plaintiff is responsible directly for the costs of the university found to be $95,000, and that of the running club, coach and members in the amount of $69,156.00;
2. The amount payable into court by virtue of the May 7, 2018 order of Justice Parayeski shall be utilized to pay the costs of the university.
3. The defendant running club and coach shall pay the plaintiff's costs fixed at $43,108.00 to be deducted from the costs payable to the defendants to the plaintiff.
4. Any shortfall experienced by the defendant running club and coach with respect to their costs and disbursements shall be deducted from the amount of damages payable by those defendants to the plaintiff.

WHITTEN J.

Released: August 20, 2018