Court File and Parties

Court File Nos.: 14-60736 Date: 2018/11/16 Ontario Superior Court of Justice

Between: Paramjit Singh and Nirmala Singh, Plaintiffs – and – Shoppers Home Health Care (Ontario) Inc., Defendant – and – The Ottawa Hospital, The Ottawa Hospital Rehabilitation Centre and Monica Robichaud, Third Parties

Counsel: Derek Nicholson and Alim Jessa for Plaintiffs Chelsea Gilder and Riley McIntyre for Defendant Any Mayer for Third Parties

Costs Endorsement

[1] The plaintiff Paramjit Singh (“Mr. Singh”) and the defendant Shoppers Home Health Care (Ontario) Inc. (“Shoppers”) each seek costs following the trial of this action.

[2] In February 2008, Shoppers supplied Mr. Singh, a paraplegic, with an electric wheelchair. In 2011 and 2012, Mr. Singh developed pressure ulcers in his buttocks. He had to undergo several surgeries and lost the use of his colon. Mr. Singh sued Shoppers, alleging that his injuries were caused by pressure or friction against his body due to a metal control box installed on the seat pan of his wheelchair. He sought general damages of $250,000 as well as special damages. Nirmala Singh, Mr. Singh’s wife, claimed damages under the Family Law Act (the “FLA”) [^1]. Her action was dismissed, on consent, the day after a jury was selected.

[3] On October 4, 2018, following a four week trial, a jury concluded that Shoppers was liable for damages for Mr. Singh’s injuries. The jury found that a metal power box was installed on the seat pan of the wheelchair when it was delivered by Shoppers, that supplying a wheelchair in this condition was negligent and breached Shoppers’ legal warranty obligations under the Consumer Protection Act, 2002 [^2], and Sale of Goods Act [^3], and that the box caused Mr. Singh’s pressure ulcers in 2011 and 2012 as well as the loss of his colon. It awarded Mr. Singh $96,000 in general damages and future care costs of $167,121.90.

[4] The jury’s assessment of Mr. Singh’s damages was much lower than he had hoped. In closing submissions, his counsel Mr. Nicholson asked for an award of $160,000 to $200,000 in general damages and $710,213 in future care costs. Taking into account a discount of 15% to 20% for contingencies, this would have resulted in a total award of $728,170 to $803,681. The jury furthermore concluded that Mr. Singh was 75% contributorily negligent for his injuries. As a result, the total damages awarded to him were only $65,780.48 or $72,996.92 including pre-judgment interest.

[5] Mr. Singh claims partial indemnity costs of approximately $260,000 from Shoppers. He says that he won at trial and that the total costs claimed are reasonable given the duration of the litigation and complexity of the case. Shoppers contends that it made a rule 49.10 settlement offer on August 23, 2018 and that this offer was better than the outcome obtained by Mr. Singh at trial. It therefore claims partial indemnity costs from the date of the offer to the end of the trial in the amount of $139,049.96. Shoppers concedes that it should pay Mr. Singh’s costs up to August 23, 2018, but says that they should be substantially discounted. Factoring in this discount and offsetting the amounts each party should receive from the other, Shoppers says it is entitled to $109,000 in costs.

[6] The third party defendants defended the main claim and their counsel attended the trial. The third party action was not however tried with the main claim and the third party defendants have not made any costs submissions.

Did Shoppers serve a valid rule 49 offer?

[7] Since the existence of a rule 49.10 settlement offer would have a significant impact on costs, I will begin with that issue.

[8] Rule 49.10(2) of the Rules of Civil Procedure applies when a defendant makes a settlement offer to the plaintiff at least seven days before the beginning of the hearing of the case and the offer is neither accepted nor withdrawn before the hearing begins. If, at the end of the trial, the plaintiff obtains a judgment that is less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, “unless the court orders otherwise”.

[9] On August 23, 2018, Shoppers served a written offer on the plaintiffs, open for acceptance until one minute following the commencement of trial. In it, Shoppers offered to pay $100,000 to the Singh’s and Mr. Singh’s disbursements and costs as agreed upon between the parties or assessed. In return for these payments, the Singhs would execute a full and final release and consent to a dismissal of the main action without costs.

[10] Taking into account pre-judgment interest, Mr. Singh’s total recovery at trial is about $73,000, less than Shoppers’ offer. Mr. Singh nonetheless argues that the offer does not trigger the costs consequences set out in rule 49.10, for two reasons. First, its terms were ambiguous. Second, it was not a reasonable or good faith offer.

Was the offer ambiguous?

[11] A settlement offer must be “crystal clear” in order to trigger rule 49.10 [^4]. If the terms of the offer are ambiguous, I could still take the August 23 offer into account when determining who should get costs and how much they should receive [^5]. Shoppers would not however be presumptively entitled to recover its trial costs.

[12] Mr. Singh argues that the August 23 offer was not sufficiently clear because Shoppers offered a global amount of $100,000 rather than specifying how much he would receive and how much Mrs. Singh would receive. It also did not say whether either Mr. Singh or Mrs. Singh could accept the offer independently of the other.

[13] In some cases involving multiple plaintiffs, courts have concluded that a valid rule 49.10 settlement offer must indicate whether the defendants are extending a global and non-severable offer requiring acceptance by all of the named plaintiffs, or a collection of separate offers which any individual plaintiff could accept. In a 2014 decision, Leach J. gave this rationale for requiring these terms:

Our courts have emphasized that non-severable offers made to multiple plaintiffs are unacceptable and contrary to Rule 49 because they raise the danger of defendants encouraging plaintiffs to “play off their claims against each other”; a concern that is heightened in situations where one or more plaintiffs is comparatively vulnerable. They also make it inherently difficult to determine whether or not a plaintiff has obtained a judgment more or less favourable than any amount on offer. [^6]

[14] In other cases, however, courts have concluded that a global offer to multiple plaintiffs meets the requirements of rule 49.10, even if it does not include a severability clause.

[15] In Fragomeni v. Ontario Corp. 1080486, Mr. Fragomeni sued for injuries he suffered in a slip and fall in a parking lot [^7]. His wife and five sons also sued under the FLA. Prior to trial, the defendants made a global settlement offer of $250,000. At trial, the plaintiffs were awarded $112,000. Although the defendants’ offer did not specify how much each of the members of the Fragomeni family would receive, and did not say it was non-severable, the trial judge concluded that it met the requirements of rule 49.10. He held that the offer was different than the offer in Malik:

It is clear that the sum offered is intended to include all the plaintiffs. There is no ambiguity in the wording of the offer, nor was it misleading. The only rational conclusion from its wording is that it was a package offer for the plaintiffs to divide up amongst themselves any way they saw fit. They rejected it not because it was confusing, but because they thought they could do better at trial. This is exactly what Rule 49.10 is intended to address. [^8]

[16] Justice Baltman emphasized that, where plaintiffs are members of a close-knit family, global or non-severable offers do not give rise to concerns about leveraging one plaintiff against another. In his view, courts should encourage defendants to make such settlement offers:

Typically, in these cases, any offer is considered by the group, for the group, and acceptance does not turn on the precise breakdown among the various claimants. The plaintiffs can assess the offer in its entirety and then decide, as a family, whether to accept it, and if so, how it should be divided. This collaborative approach is less likely to pit one member against the other, as opposed to a predetermined formula made by defendants who may not appreciate the dynamics within a family and their beliefs about whether the offer truly reflects their individual entitlement. [^9]

[17] Similarly, in a more recent case, Beaudoin J. held that a global offer made to multiple defendants can meet the requirements of Rule 49 “so long as the offer is clear” [^10]. He concluded on the facts of that case that a global offer made to family members represented by the same counsel triggered rule 49.10 cost consequences.

[18] I conclude that a global, non-severable offer to multiple plaintiffs may meet the requirements of rule 49.10. A global offer is neither inherently inconsistent with the plaintiffs’ interests nor the rationale for rule’s costs consequences. Whether a global settlement offer to multiple plaintiffs is sufficiently clear depends on its terms and the relationship between the plaintiffs.

[19] Shoppers’ August 23 offer stated that it would pay to “the Plaintiffs” the sum of $100,000, and that they would in return execute full and final releases of their claims and consent to a dismissal of the action without costs. This was clearly a package deal. The Singhs could not reasonably have interpreted the offer as permitting either of them to accept the offer without the other. The offer did not need to include a non-severability clause. It was clear on its face. The Singhs would receive $100,000 which they could divide as they chose.

[20] It is true that paragraph 2 of the offer refers only to Mr. Singh [^11]. I do not however find that this changes the nature of the offer or make it ambiguous. Shoppers apparently surmised that Mr. Singh, as the main plaintiff, was bearing the costs of the litigation. It accordingly extended the offer to pay costs to Mr. Singh alone. The Singhs do not suggest, in their cost submissions, that this element of the offer makes it ambiguous.

[21] I agree with Baltman and Beaudoin JJ. that a global offer like this is appropriate and reasonable in a case involving a main plaintiff and family members with derivative FLA claims all represented by the same counsel. Finding otherwise would discourage legitimate, good faith attempts to settle litigation. In these circumstances, Rule 49.10 does not require a defendant to make a precise prediction of how a court will assess and allocate damages to each family member. It is up to the plaintiffs, as a family, to decide whether the total amount is sufficient and how it might be divided up amongst them.

[22] Mr. and Mrs. Singh and the Singhs’ three adult children all testified at trial. They are clearly a closely-knit family who have together overcome many challenges arising from Mr. Singh’s paraplegia in 1998, a fire that destroyed their home the same year, and Mr. Singh’s ongoing health issues. I have no reason to think that a global offer pitted Mr. and Mrs. Singh against each other or that they had any concerns about what amount of money they would each get if they accepted it. When Mrs. Singh offered a consent dismissal on September 5, 2018, the plaintiffs’ counsel did not ask counsel for Shoppers about how this might impact the August 23 offer. As in Fragomeni, the plaintiffs rejected Shoppers’ settlement offer not because it was unclear but because they thought they would do better at trial.

Was the offer a bona fide and reasonable attempt to settle the litigation?

[23] In Lawson v. Viersen, the Ontario Court of Appeal stated that the purpose of rule 49.10 is “to encourage parties to make reasonable offers to settle … by imposing costs consequences on those who do not reasonably assess the actual value of the case in advance of trial” [^12]. Its goal is to provide an incentive “to make settlement offers which represent some reasonable element of compromise” [^13]. If an offer does not contain any real element of compromise, it does not advance the policy rationale underlying rule 49. Faced with such an offer, a judge could exercise their residual discretion under rule 49.10 to escape the rule’s usual costs consequences [^14].

[24] Citing Lawson, Mr. Singh argues that Shoppers’ August 23 offer does not trigger rule 49.10 cost consequences, because it was not a reasonable offer and did not represent any meaningful compromise on the defendant’s part.

Reasonability

[25] According to Mr. Singh’s counsel, the judge at a pre-trial conference expressed the view that Mr. Singh’s general damages were in the range of $175,000 to $225,000 and Mrs. Singh’s FLA claim was in the range of $40,000 to $50,000. Contributory negligence of 75% was never contemplated. In fact, in her closing argument, Shoppers’ counsel suggested that Mr. Singh might be 30% to 50% liable for his injuries. In these circumstances, Mr. Singh argues that he could not have reasonably anticipated the outcome of the trial and he should not suffer any cost consequences for rejecting Shoppers’ offer.

[26] This argument cannot succeed for several reasons.

[27] First, rule 50.09 expressly prohibits a party from communicating statements made in a pre-trial conference to the trial judge. Settlement offers exchanged at a pre-trial conference, and any comments by the pre-trial judge about potential outcomes if the case goes to trial, are to be kept confidential. This allows the parties and the judge to engage in a full and frank discussion about the case. The plaintiff’s disclosure of the pre-trial judge’s comments breaches both the letter and spirit of the rules.

[28] Second, Mr. Singh’s assessment of what he might recover if successful at trial is irrelevant. The jury’s award is the only value that a trial judge may take into consideration for the purpose of gauging the impact of a rule 49 offer.

[29] In Mayer, the plaintiffs made costs arguments similar to those made by Mr. Singh here. Mayer, her husband and daughter claimed over $2 million of damages in a motor vehicle action. At trial, a jury awarded Mayer $137,300 and her spouse and daughter nothing. Mayer claimed costs of about $422,000, arguing that the fees and disbursements incurred were reasonable given what she had expected to recover. The trial judge concluded that costs must be proportionate to the plaintiff’s actual recovery:

In my view, express or implicit suggestions that the court should gauge proportionality by reference to some different assessment or valuation of the case (e.g., by acceptance of submissions that the case was “really” worth much more, and therefore “clearly demanded” incursion of extraordinary time and disbursements despite the jury’s formal assessment), generally should not be embraced or encouraged.

Doing so effectively undermines proper respect for the opinion of juries, and encourages litigants to avoid proper risk assessment analysis in their approach to possible resolution without trial; i.e., because of a perception that cost submissions can always appeal to suggestions of what a jury should have done rather than what it did. [^15]

[30] I agree. A case is ultimately worth what the jury says it is worth. It is not the role of the judge on a costs motion to second-guess the jury’s findings on damages, or to compare an offer made to the amount that the plaintiff expected to recover.

[31] There is another troubling aspect to Mr. Nicholson’s argument. It implies that a pre-trial judge’s opinion on the possible range of damages should, to some degree, relieve counsel of making their own assessment of the potential benefits and risks of going to trial. Views by judges at pre-trial conferences are not provided for this purpose.

[32] The outcome of this action at trial was far from a foregone conclusion. Liability, damages and contributory liability were all live issues. Shoppers did not even concede that the metal box was installed on the seat pan of the wheelchair when it was delivered in February 2008. In a best case scenario, Mr. Singh would recover significant damages. In a worst case, he would get nothing. As it turned out, he got more than nothing but much less than he wanted. That outcome was always amongst the possible range of outcomes, and therefore should have been considered in accepting or rejecting Shoppers’ offer.

[33] In any event, rule 49.10 applies when a settlement offer is better than the outcome at trial. The defendant is not required to prove that the outcome was the most foreseeable outcome or even a reasonable outcome. If the plaintiff believes that the damages awarded cannot be justified on the evidence, he may appeal. He cannot however argue that his failure to accept an offer should not trigger cost consequences on the basis that he expected a different result at trial.

Element of compromise

[34] Just because an offer is low does not mean that it was made in bad faith or that it was so uncompromising that rule 49.10 cost consequences should not apply. An offer must be exceptionally one-sided to justify a departure from the rule.

[35] Walker provides an example of a settlement offer that did not have the required element of compromise. In that case, the parties agreed to fix damages at $800,000 and proceeded to trial only on the issue of liability. Prior to the trial, the plaintiffs served an offer on the defendants for the entire amount of the agreed-upon damages minus $100. The Court of Appeal held that this was not a valid offer for the purpose of rule 49.10, noting that:

a discount of less than 1/8,000th of a liquidated claim so clearly falls short of what could amount to a compromise that it is not necessary to express an opinion on at what point there would be an element of compromise. The offer amounted virtually to a statement that if the full claim was not paid the [defendant] would automatically be obliged to pay solicitor and client costs from the date of the offer. [^16]

[36] The case at bar presents an entirely different situation from that in Walker. On July 23, 2018, the plaintiffs offered to settle their claim for $350,000 in damages plus costs and disbursements. Shoppers’ responding settlement offer was $100,000. This was significantly less than what the plaintiffs wanted, but it went well beyond a nuisance value offer. It presupposed that Mr. Singh would win his case but be awarded modest damages or be found to be contributorily negligent. This is in fact what happened.

[37] I conclude that Shoppers’ offer had the required element of compromise.

Conclusion on rule 49.10

[38] Rule 49.10(2) permits a trial judge to “order otherwise”; that is, to use their discretion to award costs on a basis other than those set out in the rule. This discretion should be exercised only in exceptional circumstances. I am not persuaded that such circumstances exist in this case.

[39] I conclude that Shoppers’ August 23, 2018 offer meets the requirements of rule 49.10 and that it triggers the cost consequences of the rule. As a result, Mr. Singh is entitled to his partial indemnity costs until the date of the offer and Shoppers is entitled to its partial indemnity costs thereafter.

Mr. Singh’s costs for the period up to August 23, 2018

[40] The plaintiff has not indicated when specific disbursements were incurred. On August 21, 2018, however, Mr. Singh’s counsel sent defense counsel a list of disbursements incurred as of that date. These totaled approximately $65,390. I accept this was the amount of the plaintiff’s disbursements as of August 23, 2018.

[41] Included in these disbursements is about $5000 for “agency fees”. Plaintiff’s counsel has not explained why or how these fees were incurred, despite a request for an explanation from Shoppers’ counsel on October 25, 2018. I am accordingly discounting this amount from plaintiff’s costs. I am likewise disallowing $250 in disbursements for “media” and “file retrieval” because these expenses were not explained or supported.

[42] The plaintiff’s disbursements include the costs of expert reports that I ruled inadmissible at trial. Shoppers argues that these amounts should be discounted entirely. I disagree. In preparing a case for trial, in particular a case involving a plaintiff with a complex medical history, counsel may well need to consult a range of experts and obtain their written comments on the issues. These comments allow a party to hone in on the strengths and weaknesses of their case. This is a legitimate expense whether or not it results in reports that can be used at trial.

[43] There is one exception. The plaintiff claims about $12,000 for an engineering report by Walters Forensic Engineering. At trial, I determined that this report was unnecessary to assist the jury in determining the mechanism of injury. For the same reasons expressed in my decision on that issue, I cannot see how the Walters report would have helped Mr. Singh’s counsel in understanding the relationship between the placement of the power box on the wheelchair and his pressure ulcers. It seemed to be designed to serve more as a persuasive tool for the jury than a technical explanation.

[44] Assuming that some exploration of the mechanism of Mr. Singh’s injury was a valid investment, I conclude that Mr. Singh is only entitled to recover half of the cost of the Walters report. This reduces the allowable disbursements by a further $6000.

[45] Shoppers asks that I also disallow or reduce photocopying and printing costs. I do not agree that the amounts claimed for these items are unreasonable. Although the day may come when all evidence is produced in electronic form, we are not there yet.

[46] I consider the following Rule 57.01 factors to be relevant to the determination of Mr. Singh’s costs up to August 23, 2018:

The principle of indemnity

[47] Mr. Nicholson, billing at $425 an hour, was assisted by junior counsel, law clerks and law students. Another senior counsel, Mr. Read, was involved when the action was first started. The composition of the plaintiff’s legal team was appropriate given the size and complexity of the file. Mr. Singh has a lengthy medical history. In addition to his claim in negligence, he had a claim under the Consumer Protection Act and Sale of Goods Act. The action was vigorously defended.

[48] The hourly rates charged by Mr. Nicholson and Mr. Read are significantly higher than those charged by Shoppers’ counsel. This does not mean that these rates were unreasonable, given their numbers of years at the bar. I furthermore do not agree with Shoppers’ submission that Mr. Singh’s counsel spent excessive time on various tasks. For example, fees of $5000 for drafting a statement of claim are unsurprising.

[49] I do not find any unwarranted duplication of work when Mr. Read transferred the file to Mr. Nicholson and his team. Costs for time spent by a new lawyer to study and review the file are not necessarily costs thrown away. This case took five years to get to trial. Even if the same counsel team had remained in place throughout, its members would have had to revisit documents from time to time. Introducing new junior counsel with lower rates to the team arguably kept the overall costs down.

The amount of costs that Shoppers could reasonably expect to pay

[50] A comparison of the costs incurred by the other party is often a good gauge of the reasonability of the costs claimed. The defendant’s partial indemnity costs up to August 23, 2018 were $118,874. This included about $63,000 in fees. This is a bit less than the plaintiff’s fees but within the same general range.

The amount claimed and the amount recovered

[51] In Barlow v. Citadel General Assurance Co., a plaintiff claimed $3 million but was awarded only $100,000 at trial [^20]. The judge reduced her allowable costs of about $247,000 to just under $80,000, in part because the costs claimed would be disproportionate to the amount recovered.

[52] Shoppers argues that the same principle applies here. The jury concluded that Mr. Singh’s claim has a value of only $73,000. It would therefore be disproportionate to permit him to recover fees of $77,653 and disbursements of up to $65,000 in costs before the trial even started.

[53] The principle of proportionality is just one of many factors to consider in fixing costs [^21]. There is no rule that the costs of an action must be less than the damages awarded. The overarching question is whether the costs are fair and reasonable in the circumstances. Various courts, including the court in Barlow, have urged lawyers to exercise restraint in cases where the damages at issue are modest [^22]. I do not find that Mr. Singh’s investment in his action was disproportionate to what was at stake, or that his counsel incurred unjustifiable costs through wasteful procedures.

Apportionment of liability

[54] Section 7 of the Negligence Act says that:

Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just. [^23]

[55] In Gallant v. Fanshawe College of Applied Arts & Technology, the trial judge reduced a plaintiff’s costs award by 20% to reflect the jury’s finding of 20% contributory liability [^24]. Shoppers argues that I should do the same here and so reduce Mr. Singh’s costs by 75%.

[56] In more recent cases, courts have declined to reduce costs simply because plaintiff was found contributorily negligent. As stated by Leach J., “it is by no means a ‘given’ that a plaintiff’s costs will be subject to a percentage deduction commensurate with the degree of his or her contributory negligence” [^25]. The apportionment of liability is just one of many factors that a court may take into consideration under rule 57.01. Automatically applying a discount that mirrors a jury’s finding on contributory negligence is inconsistent with an exercise of discretion that takes into account all relevant circumstances [^26].

[57] In Miller v. Her Majesty the Queen in Right of Canada, another decision by Leach J., he identified several considerations that play into whether a plaintiff’s costs should be discounted to reflect a finding of contributory liability [^27]:

• Whether the plaintiff’s own contribution to his injuries was minimal;
• Whether the plaintiff’s contributory negligence substantially contributed to the need for litigation;
• Whether addressing the plaintiff’s contributory negligence substantially increased the costs of litigation, because additional ordinary and expert evidence was required; and
• Whether the parties’ respective positions on the issue of contributory negligence prior to trial materially affected the chances of settlement.

[58] So, for example, in Wright v. Wal-Mart Canada Corp., Price J. declined to discount the plaintiff’s cost recovery to reflect a finding that she was liable for 5% of her own damages [^28]. The judge concluded that it would have been reasonable for the plaintiff to sue the defendant solely to recover the 95% of the damages attributable to the defendants, and that her own contribution to her injury was minimal and did not substantially affect the amount of costs incurred” [^29].

[59] I agree with the approach taken in these more recent cases. Applying the factors set out in Miller, Mr. Singh’s contributory negligence did not substantially contribute to the need for litigation. I infer he would have sued Shoppers in any event. His contributory negligence also did not increase the cost of the action. No expert evidence was presented on this issue. The cross-examination of Mr. and Mrs. Singh may have been a bit longer, but no additional ordinary witnesses had to be called. Finally, I have no basis to find that the issue of contributory negligence prevented settlement. Based on the exchange of offers, the parties were far apart on both general damages and future care costs. Even if the Singhs’ July 2018 offer had been discounted to reflect 50% contributory liability, it would still have been significantly higher than Shoppers’ responding offer.

[60] The extent of Mr. Singh’s contributory liability is the only factor that weighs in favour of a commensurate reduction of his costs. I conclude that this factor alone does not, by itself, justify a drastic reduction to Mr. Singh’s cost recovery. The cost award already reflects the apportionment of liability. If the jury had not found Mr. Singh 75% liable, he would have beaten Shoppers’ settlement offer. As it is, Mr. Singh cannot recover any costs after August 23 and in fact must pay Shoppers’ costs. In these circumstances, imposing a further substantial discount of Mr. Singh’s cost recovery because of the finding of contributory liability would be neither reasonable nor fair.

The complexity of the proceeding

[61] Proving the causal connection between the location of the box and Mr. Singh’s 2011-12 pressure ulcers was particularly challenging. Mr. Singh had to persuade the jury that the box was installed on the seat pan when the chair was delivered. He had to convince the jurors that he would not have developed the ulcers in the absence of the box, despite the gap in time between when he got the wheelchair and when he developed the ulcers, and the ongoing risk that he would develop ulcers in any event as a result of his paraplegia, medical history and age. Finally, he had to prove that he would require future care costs as a result of Shoppers’ negligence as opposed to pre-existing conditions. All of this required the retainer of experts in the fields of infectious diseases, physical medicine and rehabilitation, mechanics, future care costs, occupational therapy, and actuarial accounting.

Conclusions on Mr. Singh’s costs

[62] Weighing all of the rule 57.01 factors, I conclude that Mr. Singh is entitled to recover the following partial indemnity costs, inclusive of HST, for the period up to August 23, 2018:

Fees: $77,493 Disbursements: $54,140 Total: $131,633

[63] I have reduced the disbursements as indicated. I conclude that the fees claimed are fair and reasonable, except for $250 improperly claimed for administrative tasks.

Shoppers’ costs from August 23, 2018 to the end of trial

[64] Shoppers’ bill of costs indicates partial indemnity costs of $139,050, made up of fees of $112,201 and disbursements of $26,849. This excludes fees anticipated for the preparation of cost submissions.

[65] The disbursements are all reasonable and well supported.

[66] With respect to the fees, I will not review all of the rule 57.01 factors already discussed in the context of Mr. Singh’s costs. It really comes down to the overall reasonability and fairness of the costs claimed by Shoppers, having regard to the parties’ expectations and the work required after August 23, 2018.

[67] The hourly rates of the Shoppers’ trial counsel Ms. Gilder and Mr. McIntyre, $200 and $160 respectively, are more than reasonable. Given their handling of this complex and challenging matter, their client got excellent value for the fees paid. A more senior lawyer recorded a modest 2.5 hours to review written legal argument and closing submissions. Ms. Gilder and Mr. McIntyre were otherwise assisted by two lawyers just admitted to the bar and a law clerk. The time recorded by members of the legal team was consistent with the effort required to prepare for and run a four-week jury trial. It matched the time spent by Mr. Nicholson and Mr. Jessa as trial counsel for the plaintiff.

[68] I do not understand why the time actually recorded to prepare cost submissions, as opposed to an estimate, could not have been included in the outline. I am therefore not including fees for this item. I also note that Ms. Gilder’s time includes the drafting of Shoppers’ offer. This of course cannot be claimed as Shoppers is only entitled to its costs after the service of the offer. No dockets or detailed breakdown of Ms. Gilder’s total time was provided, so I cannot tell what fees were incurred on this task or on the letter to the Singhs’ counsel that presumably accompanied the offer. Assuming these tasks together took an hour or two, the defendants’ fees should be reduced modestly to take this into account.

[69] A larger issue is the calculation of a partial indemnity rate of 66% in Shoppers’ cost outline. This contrasts with a 60% rate in the plaintiff’s costs outline. No partial indemnity rate is fixed in the Rules and the modest hourly rates charged by the Shoppers’ legal team should also be considered in fixing the total costs award. Partial indemnity fees charged by Mr. Singh’s counsel from August 23, 2018 total $107,107, a little more than the fees charged by Shoppers’ counsel. A partial indemnity rate of 60% is however more common.

[70] Weighing these factors, I conclude that Shoppers is entitled to recover costs in a range of $128,500 (if the usual 60% partial indemnity rate is applied) and $138,500 (if the proposed 66% rate is used).

Conclusion

[71] Mr. Singh’s allowable costs to August 23, 2018 are $131,633. Shoppers’ costs are within the same range.

[72] Mr. Singh won his case, in that he succeeded on the issues of negligence, legal warranty and causation. On the other hand, the jury largely accepted Shoppers’ position on damages and concluded that Mr. Singh had the lion’s share of liability for them. As a result, the plaintiff obtained a less favourable result than he would have if he had accepted the defendant’s offer. The cost award must reflect this.

[73] I conclude that the costs payable to Mr. Singh and to Shoppers are effectively equivalent, and accordingly decline to order costs payable by either party.

Justice S. Gomery Released: November 16, 2018

Footnotes

[^1]: R.S.O. 1990, c. F.3. [^2]: S.O. 2002, c. 30 Sched. A. [^3]: R.S.O. 1990, c. S.1. [^4]: Rooney v. Graham (2001), 2001 ONCA 24064, 53 O.R. (3d) 685 (C.A.); Malik v. Sirois (2003), 2003 ONCA 29931, 176 O.A.C. 348 (“Malik”). [^5]: Rule 49.13. [^6]: Mayer v. 1474479 Ontario Inc., 2014 ONSC 2622, 33 C.C.I.L (5th) 150 at para. 115 (“Mayer”); see also Malik v. Sirois, [2002] O.J. No. 4871, the Superior Court decision upheld in the Court of Appeal decision already cited. [^7]: Fragomeni v. Ontario Corp. 1080486 (2007), 81 O.R. (3d) 577 (S.C.J.) (“Fragomeni”). [^8]: Fragomeni at para. 19. [^9]: Fragomeni at para. 28. [^10]: D’Addario v. Smith, 2016 ONSC 4690, [2016] O.J. No. 3948 at para. 29. [^11]: “The Defendant shall pay to the Plaintiff his disbursements and costs, plus all applicable taxes, to be agreed upon between the parties or assessed”. [^12]: 2012 ONCA 25, 108 O.R. (3d) 771 at para. 20 (“Lawson”). [^13]: Lawson at para. 20. [^14]: Walker Estate v. York-Finch General Hospital (1999), 1999 ONCA 2158, 43 O.R. (3d) 461 (C.A.) (“Walker”). [^15]: Mayer at paras. 37 to 39. [^16]: Walker at para. 79. The reference to solicitor-client costs reflects how rule 49.10 was worded at the time. [^17]: R.S.O. 1990, c. C.43. [^18]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3rd) 291 (C.A.) at para. 26. [^19]: In this decision I have rounded the amounts of fees and disbursements claimed to the nearest dollar. [^20]: (2008), 2008 ONSC 3215, 58 C.C.L.I (4th) 204 (Ont. S.C.J.) at para. 37 (“Barlow”). [^21]: Volchuk Estate v. Kotsis (2006), 2007 ONSC 52973, 36 E.T.R. (3d) 239 (Ont. S.C.J.) at para. 26. [^22]: Barlow at paras. 37-39. [^23]: R.S.O. 1990, c. N.1. [^24]: Gallant v. Fanshawe College of Applied Arts & Technology, 2009 ONSC 6400, [2009] O.J. No. 5339 (S.C.J.) at paras. 16 to 18. [^25]: Stilwell v. World Kitchen Inc., 2013 ONSC 5360, [2013] O.J. No. 3778 at para. 71. [^26]: Gendron v. Thompson Fuels, 2018 ONSC 2079, 18 C.E.L.R. (4th) 178 at paras. 32-38 (“Gendron”). [^27]: 2015 ONSC 2554, [2015] O.J. No. 2468 at paras. 76-77 (“Miller”). See also Gendron, where Charney J. cites Miller and relies on these same factors. [^28]: 2010 ONSC 2936, [2010] OJ No 2206 (“Wright”). [^29]: Wright at para. 29.