Court File and Parties

COURT FILE NO.: 15-65254 DATE: 20180925 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOANNE BURWASH, Plaintiff AND Dr. SHELDON LEVY, DR. ABRAHAM ORNER, 7977085 CANADA INC., previously known as RIVERFRONT MEDICAL SERVICES LIMITED, SCM INSURANCE SERVICES, previously known as CIRA MEDICAL SERVICES INC., previously known as RIVERFRONT MEDICAL SERVICES (2011) INC., and JEAN TURGEON and DR. TILAK DE FONSEKA MENDIS and DR. KENNETH WILLIAM GREGORY SUDDABY, Defendants

BEFORE: C.T. Hackland J.

COUNSEL: Joseph Obagi, Counsel, for Joanne Burwash, Plaintiff Brian C. Elkin, Paul D. Mooney, for SCM Insurance Services Inc., Defendant

HEARD: In Writing

Endorsement (Costs)

[1] This motion was brought by the defendant SCM for an order staying or dismissing this action, or, in the alternative, to prohibit the plaintiff from using any and all documents and information obtained from SCM in response to a 3rd party records motion in another earlier proceeding (in which SCM was the non-party possessor of the documents), based on the deemed undertaking rule (Rule 30.1). The plaintiff brought a cross-motion seeking leave to use such documentation if the deemed undertaking was found to be applicable.

[2] The motion was argued over the course of two and one half days and was centered principally on the plaintiff’s cross-motion for leave to use the documentation, notwithstanding the deemed undertaking. The court dismissed the plaintiff’s cross-motion and prohibited the use of the documents pursuant to the deemed undertaking rule. The court’s reasons dated March 26, 2018 are reported at 2018 ONSC 682.

[3] The defendant SCM argues that it was successful on the motions and should therefore be entitled to its party and party costs on a partial indemnity basis. I accept that submission as being obviously correct.

[4] The plaintiff asks that costs be ordered to be in the cause in order that the trial judge can consider the plaintiff’s argument that the defendant SCM and other defendants who were not involved in this motion, wrongfully interfered with the content of experts’ reports in a prior motor vehicle personal injury proceeding in which the deemed undertaking arose. The plaintiff relies on jurisprudence concerning interlocutory injunctions “where costs do not necessarily follow the event where the underlying substance of the action has yet to be determined.”

[5] I do not accept this argument. Irrespective of the ultimate outcome of the plaintiff’s action, there has been a final determination by the court that the deemed undertaking does apply and the documentation in question is not to be used by the plaintiff in the present proceeding.

[6] The plaintiff submits that there is a possibility that some of the documents found to be subject to the deemed undertaking could ultimately be admitted into evidence by the trial judge under one of the legislated exceptions identified in Rule 30.1 of the Rules of Civil Procedure. In my view it is not appropriate to consider these possibilities in the abstract and they do not justify depriving the defendants of their costs of this motion.

[7] As to the quantum of costs to be awarded, the plaintiff advances a similar argument ie., that the concept of proportionality dictates that the amount of costs awarded should be reflective of the ultimate value of the order secured and its importance to the litigation. The suggestion here is that documents found to be subject to the deemed undertaking could conceivably be admitted into evidence by the trial judge and therefore the resources put into this complex motion were not justified by the outcome.

[8] Again, the ultimate outcome of this proceeding and the importance of the deemed undertaking as a restriction on the evidentiary foundation of the plaintiff’s case cannot be assessed with any certainty at this early stage of the action. I do not accept that this circumstance justifies depriving the defendant SCM of its costs or reducing the quantum of costs.

[9] The defendant SCM seeks partial indemnity costs of $46,525 plus HST for a total of $52,573. The plaintiff says it does not dispute the hours or disbursements claimed by the defendant SCM but in view of the results achieved questions the justification of using two senior counsel on the motion. I disagree. The plaintiff’s allegations, if substantiated, could be expected to fundamentally impact the credibility of SCM and could permanently damage its reputation as an ethical provider of expert opinions to insurers and to the court. This case is very important to the parties, is factually and legally complex, involved cross-examinations, 2½ days’ argument and detailed and carefully prepared written and oral submissions. The time and preparation put into the matter by the defendant SCM’s counsel was justified.

[10] I allow the costs as claimed by the defendant SCM, which are to be paid within 30 days of this endorsement.

Justice Charles T. Hackland Date: September 25, 2018.