Court File and Parties
COURT FILE NO.: 16-68678
DATE: 2019/02/13
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: INGELISE LOY-ENGLISH, Plaintiff
AND:
DR. MARC FOURNIER, DR. ERIN MARGARET MARY KELLY, DR. JOHN MORALLATO, DR. JOSEPH YELLE, DR. PATRICK SULLIVAN, DR. SARIKA AMELIA MANN aka SARIKA AMELIA ALISIC, DR. JEAN-CLAUDE GAUTHIER, NURSE BLOOM and NURSE NADOLOSKI and THE OTTAWA HOSPITAL, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Tara M. Sweeney, for the Plaintiff (Responding Party) Anne E. Spafford, for the Defendant physicians (Moving Parties) J. Stephen Cavanagh, for Butler & Mann Lawyers (Intervenors) Roberto Ghignone, for the Defendant hospital & nurses
HEARD: Cost submissions in writing re motion heard, September 27, 2018
COSTS DECISION
[1] On October 19th, 2018 I released reasons in connection with a summary judgment motion heard on September 27th, 2018 (See 2018 ONSC 6212). The physicians in two of the related actions sought to have those actions dismissed because of the apparent expiry of the limitation period. The motion was opposed by the intervenors and by the plaintiff. I dismissed the summary judgment motion and found that the date the plaintiff discovered the claim against each physician within the meaning of the Limitations Act, 2002 was a genuine and nuanced factual question. In the circumstances of this case I found it was not a question that is amenable to determination under Rule 20.
[2] I have now received written costs submissions. Despite the dismissal of the summary judgment motion, the defendant physicians suggest that success was divided and no costs should be awarded. They take this position because although there was no cross-motion, the responding parties invited the court to grant summary judgment in favour of the plaintiff in relation to the limitation period. In the alternative, the moving party defendants argue that the costs sought by the plaintiff are "excessive" and the time spent by the intervenor was "extraordinary". The defendants argue that the arguments of the intervenor did not add value to the motion and that costs should be denied.
[3] Dealing firstly with the question of divided success, in my view the moving parties were unsuccessful whereas the responding parties were successful in resisting summary judgment. Had the defendants succeeded, the result would have been dire for the plaintiff because the actions would have been dismissed. By contrast, had partial summary judgment been granted declaring only that the limitation period had not expired, it would have narrowed only one of many issues. The actions would have continued and most of the same evidence would have been necessary because causation, severity of sequellae, and damages would remain to be proven.
[4] This is not a case like Thirukumar v. Aravinthan, 2010 ONSC 4839 or Brown v. Baum, 2015 ONSC 3181 in which there were competing summary judgment motions on different issues. Asking the court to grant partial summary judgment if satisfied that the limitation defence cannot succeed is not the same as bringing a cross motion. No additional evidence was required to make that argument since the plaintiff was already obliged to put her best foot forwards in response to the defendants' motion. (See Rule 20.02 (2)) The plaintiff is entitled to costs.
[5] The plaintiff states that the full cost of the motion was $56,419.33 and partial indemnity costs would be $42,158.99. In her costs submission, the plaintiff quite fairly recognizes that some of the work done in response to the motion will remain of value in advancing her claims and accordingly she seeks a costs award of $30,000.00. This is an appropriate concession. Salvaging the resources used for the summary judgment motion was encouraged by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 @ para. 77. Even if it is impractical to have the summary judgment judge seized of the matter and assigned as the trial judge, the time spent exploring this evidence should still be useful. I have no doubt that the affidavits and cross examination can be adapted for use at trial. In light of my disposition of the summary judgment motion, discoverability and the expiry of the limitation period remain open questions in relation to certain of the defendants.
[6] The more difficult question relates to the work done by the intervenor and how costs should be allocated. No order was made about entitlement to or liability for costs when the intervenor obtained leave. The intervenor is the plaintiff's first lawyer who is potentially liable for missing the limitation period if the limitation defence succeeds. Leave to intervene on the summary judgment motion was granted by Hackland J. because the plaintiff and intervenor are potentially adverse in interest and because the intervenor might have had arguments that the plaintiff would not advance. The intervenor states that he incurred costs of $42,565.02 and suggests that partial indemnity costs would be $28,098.35. The costs award sought by the intervenor against the physicians is $20,000.00.
[7] The moving party defendants do not specifically argue that the intervenor should be denied costs nor do they specifically complain about the unfairness of the defendants being exposed to two sets of costs. They do argue that the costs claimed by the plaintiff and the intervenor are excessive, that counsel for the plaintiff spent almost double the amount of time spend by counsel for the moving parties and it is argued that counsel for the intervenor made the motion more complicated by introducing arguments that were not entertained by the court. By themselves these arguments are unpersuasive. A plaintiff facing termination of an action at a summary judgment motion based on a limitation period, must put forward extensive evidence to displace the presumption found in the Limitations Act. Just because the court found it unnecessary to deal with all of the arguments advanced does not necessarily mean that costs should be reduced or denied. I agree with the quote from Coveley v. Thorsteinssons, 2018 ONSC 5681 @ para. 9 cited by the intervenor. Distributive costs awards are not routine and generally costs are awarded based on the result rather than upon which arguments the decision ultimately turned.
[8] On the other hand, I agree that taken cumulatively, the costs incurred by the plaintiff and the intervenor, however necessary to each of those parties, would be excessive if visited on the moving parties. Although the plaintiff and the intervenor argued different points, they were united in opposing summary judgment. The moving parties should not be saddled with a double set of costs due to the intervention. On the other hand, it would not be fair to reduce the plaintiff's costs in order to award costs to the intervenor unless the intervenor carried the burden of arguing the motion and the plaintiff was saved those costs.
[9] At the motion, there was some overlap between the points argued by the intervenor and the plaintiff. The intervenor argued first followed by the plaintiff. The plaintiff is entitled to partial indemnity costs and there will be a modest additional costs award in favour of the intervenor.
[10] I fix the costs of the plaintiff at $25,000.00 and the costs of the intervenor at $10,000.00. The defendants are therefore liable for $35,000.00 in costs to be paid within 30 days.
Mr. Justice C. MacLeod
Date: February 13, 2019
COURT FILE NO.: 16-68678
DATE: 2019/02/13
ONTARIO SUPERIOR COURT OF JUSTICE
RE: INGELISE LOY-ENGLISH, Plaintiff
AND:
DR. MARC FOURNIER, DR. ERIN MARGARET MARY KELLY, DR. JOHN MORALLATO, DR. JOSEPH YELLE, DR. PATRICK SULLIVAN, DR. SARIKA AMELIA MANN aka SARIKA AMELIA ALISIC, DR. JEAN-CLAUDE GAUTHIER, NURSE BLOOM and NURSE NADOLOSKI and THE OTTAWA HOSPITAL, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Tara M. Sweeney, for the Plaintiff (Responding Party) Anne E. Spafford, for the Defendant physicians (Moving Parties) J. Stephen Cavanagh, for Butler & Mann Lawyers (Intervenors) Roberto Ghignone, for the Defendant hospital & nurses
COSTS Decision
Mr. Justice Calum MacLeod
Released: February 13, 2019