Court File and Parties

COURT FILE NO.: CV-12-450447 DATE: 20180820 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Parbattie Poonwasee, Plaintiff and Cecilia Plaza, Defendant

BEFORE: Schreck J.

COUNSEL: G. Mazin, for the Plaintiff W.J. Jesseau, for the Defendant

HEARD: In writing.

Costs Endorsement

[1] The plaintiff commenced a negligence action against the defendant arising out of a motor vehicle accident on May 13, 2010. The plaintiff had picked up her nine-year-old son from school and was on her way home to have lunch. She was driving a Toyota Tercel and stopped in the curb lane of Jane Street at a red light at the intersection of Woolner Avenue. Another car was beside her. The plaintiff did not see any cars behind her. Suddenly, a black Mercedes drove between the plaintiff’s car and the car next to her. It hit the plaintiff’s car with sufficient force to push it into the intersection. The damage to the plaintiff’s car was significant enough that it had to be written off. There was no issue that the defendant was the driver of the Mercedes. The plaintiff claimed that she suffered injuries as a result of the accident. The defendant took the position that her injuries were the result of a pre-existing condition and that any aggravation of that condition as a result of the accident was short-lived.

[2] Following a two-week trial, a jury awarded the plaintiff $30,000 in general damages, $9,900 for past loss of income, $25,000 for future loss of income, $22,000 for future housekeeping costs and $15,000 for future care costs. It is clear from the verdict that the jury was satisfied that the defendant’s negligence caused the accident, that the plaintiff sustained injuries resulting from the action, and that those injuries have had and will continue to have a lasting effect on her.

[3] The parties agree the after the statutory deductible and other collaterals are deducted, the plaintiff is entitled to judgment totalling $43,014.93. Prior to trial, the plaintiff made an offer pursuant to Rule 49 of the Rules of Civil Procedure to settle the proceedings if the defendant agreed to pay her $50,000.00 in damages. The defendant rejected the plaintiff’s offer and made no offer or her own.

[4] The plaintiff seeks costs totalling $201,479.37. The defendant submits that each party should bear its own costs or, in the alternative, if costs are awarded against her they should be substantially less than is claimed.

[5] The principles which should guide a court’s exercise of discretion in the assessment of costs were thoroughly outlined by my colleague, Firestone J., in Valentine v. Rodriguez-Elizalde, 2016 ONSC 6395, 60 C.C.L.I. (5th) 213, at paras. 40-44. While I have considered all of those factors, I will highlight only those that were raised by the parties or that I find to be of particular relevance to the facts of this case.

[6] As noted, the plaintiff made an offer to settle. While she did not “beat” the offer after trial, the amount she was ultimately awarded was less than $7,000.00 short of the amount she offered. In contrast, the defendant made no offer to settle. The plaintiff accepts that as result of not having beaten the offer, she is only entitled to partial indemnity costs. I agree. However, pursuant to Rule 49.13, the offer is a factor which I may consider. In my view, it is a significant factor.

[7] This was a case where the defendant, through her insurer, “played hardball”. Although counsel for the defendant indicated during the pre-trial conference that he would concede liability, he resiled from that position at trial. He attacked the credibility and reliability of the plaintiff’s key witnesses and made numerous objections during the course of the trial. I do not point this out to be critical. The defendant was entitled to “play hardball”. However, she chose to do so in the knowledge that if she was ultimately unsuccessful at trial, there were likely to be significant cost consequences.

[8] The defendant has made various submissions in support of her position that the plaintiff should not be awarded any costs, or reduced costs. The first of these is that I should deny costs on the basis of Rule 76.13, which states that a plaintiff shall not recover costs unless it was reasonable not to proceed under the simplified procedure regime. I cannot accept this submission. This was not a case where the plaintiff recovered markedly less than the simplified procedure limit. Give that what she recovered was close to the limit, it cannot be said that employing the ordinary procedure was unreasonable. As well, in my charge to the jury, I provided a range of damages under each head of damage which the jury was told would be reasonable based on the evidence in this case. The total of the upper ends of those ranges exceeded the simplified procedure limit. No objection was taken to this jury instruction. I cannot now say that the plaintiff was unreasonable in seeking to recover amounts which I told the jury were reasonable: Garisto v. Wang (2008), 2008 ONCA 389, 91 O.R. (3d) 298 (C.A.), at paras. 18-22.

[9] It is also suggested that there was “divided success” because the defendant was “wholly successful in defending two of the five heads of damage”. In this regard, the defendant relies on Rule 57.01(4)(a). I do not view this a case of “divided success”. Resort to Rule 57.01(4)(a) may be appropriate where a party is successful on one issue but not on another issue that is distinct from the first: Adatia v. Damji (Receiver of) (2005), 8 C.B.R. (5th) 165 (Ont. S.C.J.), at paras. 11-12. However, in this case the evidence in relation to the different heads of damage was, for the most part, the same. In these circumstances, I am of the view that Rule 57.01(4)(a) does not apply: Xiao v. Gilkes, at para. 13. I note as well that although the plaintiff did not recover any general damages because of the deductible, this was not a case where the total amount she did recover was minimal, as was the case in Sharma v. Stewart, 2017 ONSC 4333.

[10] The defendant also submits that the costs being sought are not proportionate to the jury’s award. While proportionality is a relevant factor, courts must be cautious not to apply it in such a way as to undercompensate a plaintiff for expenses that were legitimately incurred: Valentine, at para. 66; Persampieri v. Hobbs, 2018 ONSC 368, at paras. 90-97.

[11] Another factor the defendant asks the court to consider is her own costs, which are substantially less than the amount being sought by the plaintiff. While this is ordinarily relevant, I note that the hourly rates being charged by counsel for the defendant are markedly less than one would expect of lawyers with their level of experience. It is, of course, open to counsel to provide a client with a discount. However, counsel who does so cannot expect the court through its costs order to compel opposing counsel to do the same.

[12] All of that said, I agree with the defendant that much of the time billed for in the plaintiff’s bill of costs was duplicative, inappropriate or excessive. Some examples follow.

[13] The plaintiff’s bill of costs contains a large number of entries where time was billed for the review of various documents. A number of these were unreasonable. For example, it should not take 15 minutes to review a one-line jury notice, nor should it take 30 minutes to review a notice of change of solicitor.

[14] Some of the fees and disbursements are in relation to interlocutory proceedings for which cost awards have already been made.

[15] A number of entries relate to the fees of law clerks doing secretarial work. In my view, the costs of secretarial work are part of every law practice’s overhead and should not be billed to clients. Having secretarial work performed by a law clerk does not change this.

[16] Ultimately, the fixing of costs is not a mathematical exercise but, rather, a determination of what is reasonable in the circumstances. Having considered the factors set out in Rule 57.01(1) and the factors referred to earlier, I fix costs in the amount of $120,000, inclusive of disbursements and HST, payable by the defendant to the plaintiff within 30 days of the date of this order.

Schreck J. Date: August 20, 2018.