Court File and Parties

Court File No.: 13-58799 Date: 2019-02-21 Superior Court of Justice - Ontario

Re: Rosemary Sheldon, plaintiff And: Manuel Reyna, defendant

Before: Justice H.J. Williams

Counsel: Colleen Burn and Dani Grandmaître, Counsel for the plaintiff D. Reisler and Jessica Kuredjian, Counsel for the defendant

Heard: Costs submissions in writing

Endorsement

[1] After being injured in a rear-end car accident on September 17, 2011, the plaintiff Rosemary Sheldon succeeded in her action against the defendant Manuel Reyna after a 15-day judge-alone trial.

[2] The plaintiff argues that her total judgment is $827,487.77, an amount which is net of the statutory deductible applicable to awards of non-pecuniary general damages and of the amount of the settlement of the plaintiff’s claim for accident benefits.

[3] The plaintiff is now requesting:

(a) correction or clarification of one of my awards for future housekeeping and home maintenance and confirmation of the total amount of her judgment; (b) prejudgment interest on her non-pecuniary general damages; (c) postjudgment interest; (d) the costs of her action on a partial indemnity basis; and (e) an order allowing for part of the award to be paid through periodic payments.

Correction/clarification of the award for gardening services and confirmation of total amount of the judgment

[4] The plaintiff takes issue with paragraph 585 of my reasons for decision, in which I said that I accepted life care planner Claudia von Zweck’s opinion that the plaintiff required two hours of gardening services per week, 20 weeks per year, prorated by 75 per cent to take into account pre-accident shared responsibility. I then reduced the two hours by 75 per cent and arrived at 0.5 hour.

[5] While I appreciate the defendant’s attempt to make sense of paragraph 585, I agree with the plaintiff’s submission that the evidence was that the plaintiff’s pre-accident responsibility for gardening was 75 per cent of the total and that I should have reduced the two hours by 25 per cent and not 75 per cent and that the award should have been for 1.5 hours and not 0.5 hour.

[6] With the exception of the plaintiff’s calculation of the award for gardening services, which was based on 1.5 hours and not 0.5 hour, the defendant agreed with the plaintiff’s calculation of her total judgment. As I have now confirmed the plaintiff’s interpretation of the award for gardening services, I also confirm that the total award is $827,484.77.

Prejudgment interest

[7] The plaintiff requests prejudgment interest on her award of non-pecuniary general damages.

[8] The plaintiff is asking for prejudgment interest from June 28, 2013, the day her lawyers sent a letter to the defendant and his insurer, notifying them of the plaintiff’s intention to start a legal action in respect of the September, 2011 accident.

[9] The copy of the letter sent to the defendant was returned, indicating that he did not live at the address to which it had been sent, which was the address on the accident police report.

[10] Section 258.3(8) of the Insurance Act, R.S.O. 1990, c. I. 8, provides that in a car accident action, prejudgment interest under s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 does not run until the plaintiff serves the defendant with written notice of the intention to commence an action.

[11] The defendant argues that, because the June 28, 2013 was not served on the defendant, prejudgment interest should not start running until September 13, 2013, the date of issue of the statement of claim.

[12] Although the June 28, 2013 letter was not received by the defendant, because it was sent to the address on the police report and was also sent to the defendant’s insurer, if the plaintiff did not comply with s. 258.3(8) of the Insurance Act, I would exercise my discretion under s. 130(1)(c) of the Courts of Justice Act and award interest from June 28, 2013, in accordance with the plaintiff’s request.

[13] I award the plaintiff prejudgment interest in the amount of $4,268.44.

Postjudgment interest

[14] The plaintiff requests an order for postjudgment interest on her entire award in the amount of three per cent from September 24, 2018 to the date of payment. The defendant agrees.

[15] The plaintiff shall have postjudgment interest on her entire award in the amount of three per cent from September 24, 2018.

Costs

[16] Both parties made Rule 49 offers to settle the action but neither beat their offer. The plaintiff had offered to settle for $1.3 million plus costs; the defendant had offered $500,000.00 plus interest and costs.

[17] The parties agree that the plaintiff is entitled to her costs on a partial indemnity basis.

[18] The plaintiff seeks partial indemnity fees in the amount of $291,216.30 plus HST and disbursements of $102,529.77 plus HST.

[19] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 provides that, subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[20] Rule 57.01 of the Rules of Civil Procedure lists the factors a court may take into account in exercising its discretion to award costs under s. 131.

[21] In Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.), the Court of Appeal said that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

[22] The defendant argues that the fees and disbursements requested by the plaintiff are out of proportion to the amount of the judgment. While not conceding that the fees sought by the plaintiff are disproportional, the plaintiff argues that proportionality is only one factor to be considered when costs are awarded, along with the principle of indemnity and other factors.

[23] The defendant argues that $150,000.00 plus HST would be an appropriate award of fees, which is about 50 per cent of the fees sought by the plaintiff.

[24] The defendant does not take issue with the hourly rates charged by the plaintiff’s lawyers but argues that the fees claimed are excessive. Specifically, the defendant argues that:

• the plaintiff was already awarded $9,000.00 in costs following an unsuccessful motion by the defendant to deliver a jury notice and that any time relating to that motion should not be included in the costs the plaintiff is now seeking;
• the plaintiff increased the costs of the proceeding by amending her statement of claim to claim $2,000,000.00 instead of $1,000,000.00 plus unspecified special damages; and
• the plaintiff’s partial indemnity fees of $291,216.30 significantly exceeded the full indemnity fees of the defendant, which were $212,672.00.

[25] The plaintiff responded to the defendant’s three bullet-pointed arguments as follows:

• the plaintiff says her bill of costs does not include any time relating to the jury notice motion and that the defendant can confirm this by reviewing the plaintiff’s law firm’s time dockets which the defendant had requested and was provided;
• the plaintiff argues that the amendment to the statement of claim was appropriate given the expert evidence and that the amendment was on consent and took up virtually no court time; and
• the plaintiff argues that the fees requested by the plaintiff are reasonable, even in comparison to the defendant’s fees, because the plaintiff had the burden of proof and called more witnesses at trial and because plaintiffs in personal injury actions are not typically experienced litigants and naturally require a certain amount of their lawyers’ time and attention.

[26] With respect to disbursements, the defendant argues that the disbursements requested by the plaintiff should be reduced by about $4,500.00 on the basis that a number of the records included on the plaintiff’s disbursements list were obtained before the plaintiff’s accident benefits claim settled and that the cost should have been shared with the accident benefits insurer. The defendant also argues that the plaintiff’s claim for the cost of photocopies, postage and faxes should be reduced by 50 per cent, particularly given that electronic documents had been used at trial.

[27] The plaintiff says that the plaintiff’s accident benefits insurer never requested medical records and, as such, did not pay for any such records. With respect to the cost of photocopies, postage and faxes, the plaintiff says that although electronic documents were used at trial, paper briefs which included case law were submitted dealing with the legal issues that arose during the trial.

[28] After considering the factors relevant to costs awards in rule 57.01(1) and in particular, the principle of indemnity, the amount an unsuccessful party could reasonably expect to pay, the amount claimed and recovered, the complexity of the proceeding and the importance of the issues, I have concluded that the fees requested by the plaintiff are within a reasonable range. This was not a case such as Elbakhiet v. Palmer, 2014 ONCA 544, relied upon by the defendant, in which the plaintiff had requested almost two million dollars in damages and was awarded less than $145,000.00.

[29] The amount recovered in the case before me was less than the amount claimed but, at more than $825,000.00, was nonetheless significant and was $325,000.00 more than the defendant had offered. Complex damages-related issues were involved in the action, which were of considerable importance to the plaintiff.

[30] Because I was not given the hourly rates charged by the defendant’s lawyers, I am unable to determine, based on their total fees, how many hours the defendant’s lawyers worked in comparison to the plaintiff’s lawyers. Nonetheless, I accept the plaintiff’s arguments in respect of why it is reasonable for the time spent by the plaintiff’s lawyers to have exceeded that of the defendant’s lawyers. In court, the plaintiff’s lawyers were well-organized, made efficient use of the available trial time and divided responsibilities between the more senior and the more junior lawyer, suggesting out-of-court trial preparation time that was well spent. I found the issue-related legal briefs submitted by the plaintiff’s lawyers and their written closing submissions and case law to have been extremely helpful and not excessive. In contrast, the defendant’s counsel chose to make few references to the law and did not submit a book of authorities in conjunction with their closing argument.

[31] I consider most of the disbursements claimed by the plaintiff to be reasonable. I accept the plaintiff’s argument that, in the circumstances of this case, the accident benefits insurer would not have been expected to pay for medical records and that it did not do so. I will reduce the $6,720.00 claim for photocopies by $1,500.00 because I was not provided with the number of photocopies or the per-unit price and cannot, therefore, assess the reasonableness of the claim.

[32] To quote from the Boucher case, I consider the following award to reflect a fair and reasonable amount for the defendant to pay:

• Fees in the amount of $285,000.00 plus HST;
• Taxable disbursements in the amount of $101,029.77 plus HST; and
• Non-taxable disbursements in the amount of $3,087.19.

Periodic payments

[33] The defendant does not object to the plaintiff’s request for an order allowing part of the award to be paid by period payments.

[34] Under s. 116 of the Courts of Justice Act, I order the defendant to pay all or part of the award for damages periodically.

[35] In respect of the specifics of the order under s. 116, the parties may, at their option, submit written motion materials or request a conference call to make brief oral submissions by contacting the Ottawa trial coordinator.

Released: February 21, 2019 Madam Justice H.J. Williams