Court File and Parties

COURT FILE NO.: CV-15-541402 DATE: 2019/01/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAULA BARTHOL Plaintiff – and – CITY OF TORONTO, THE INCORPORATED SYNOD OF THE DIOCESES OF TORONTO, HOST HOTELS & RESORTS, INC. also known as HOST HOTELS & RESORTS, L.P., MARRIOTT INTERNATIONAL, INC. carrying on business as TORONTO MARRIOTT DOWNTOWN EATON CENTRE HOTEL, MARRIOTT INTERNATIONAL INC. (CANADA), MARRIOTT HOTELS OF CANADA LTD. also known as MARRIOTT HOTELS OF CANADA ULC carrying on business as TORONTO MARRIOTT EATON CENTRE HOTEL, LUXURY HOTELS INTERNATIONAL OF CANADA, ULC carrying on business as TORONTO MARRIOTT EATON CENTRE HOTEL, CLMH EATON CENTRE INC. and HMC TORONTO EC COMPANY Defendants

Counsel: Frank Grande, for the Plaintiff Kara Denny, for the Defendants save for the City of Toronto

HEARD: November 22, 2018

SPIES J.

Reasons for Decision - Costs

[1] The plaintiff brought an action against the defendants with respect to a slip and fall accident that occurred on November 27, 2013 as he was entering the lobby of the Marriott Hotel located at 525 Bay Street, Toronto, Ontario, where she was attending at a conference. The claim against the City of Toronto was dismissed on consent in July 2016.

[2] The remaining defendants, the moving defendants; collectively referred to as the remaining defendants or “Marriott” served the motion to dismiss which is now before me on September 28, 2018. There is no dispute that the plaintiff’s action should be dismissed as against all remaining defendants. The only reason counsel attended before me was that they have not been able to agree on what costs Marriott is entitled to for the action and for this motion. To determine that I first need to review the chronology of communications, or perhaps lack of communication, as between counsel for Marriott, Ms. Denny and for the plaintiff, Ms. Gratsias.

[3] Marriott’s position was that the plaintiff had to bring her claim before the Workplace Safety & Insurance Board (WSIB) as they took the position that she was attending the conference in the course of her employment. As a result, the plaintiff brought a Right to Sue Application before the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Had she been successful she could have pursued her civil action. However, that application was dismissed by the WSIAT by a decision dated March 14, 2018 (the WSIAT Decision). The plaintiff did not appeal that decision or take any steps to have the plaintiff’s action dismissed against the remaining defendants.

[4] By email dated May 17, 2018, Ms. Denny requested of Ms. Gratsias when she might expect to receive the plaintiff’s motion materials with respect to dismissal of the claim. By email dated June 1, 2018 to Ms. Gratsias, Ms. Denny asked for a response to her email of May 17, 2018. By June 7, 2018, Ms. Denny wrote again as she had still not received a response to her correspondence. She advised in that email the dates that were available, and that she had received instructions to bring a motion to dismiss the plaintiff’s action. I have no evidence before me as to why Ms. Gratsias ignored these two emails from Ms. Denny.

[5] This is the first area where it appears there was a lack of communication between counsel, primarily by Ms. Gratsias, which resulted in unnecessary expense by both the plaintiff and Marriott. This is unacceptable in my view. First of all, the counsel for the plaintiff should have sought the consent of Marriott to have the action dismissed on consent. There is no dispute that the plaintiff’s right to bring this action was barred by the WSIAT Decision as the WSIAT has exclusive jurisdiction to determine the issue of whether the plaintiff’s right to bring an action is barred. That would have meant that counsel would have needed to negotiate the costs of the action that Marriott was entitled to. As I will come to those discussions did begin but

[6] In an affidavit sworn on behalf of Marriott, the affiant disposes that Ms. Denny and Ms. Gratsias spoke by telephone on around June 8, 2018, at which time Ms. Gratsias advised she was not available for the hearing of the motion until October 5, 2018 or later. I find that very hard to believe, but will accept that that was an accurate statement at the time although I note that Ms. Gratsias did not attend the hearing of the motion as counsel. There is no reason why the remaining defendants should have had to wait that long to have the claim dismissed.

[7] Ms. Gratsias sent an email to Ms. Denny dated July 3, 2018 stating that in a prior discussion, Ms. Denny stated that she would be seeking costs on the motion to dismiss the action. Ms. Gratsias stated, “I have yet to obtain a cost outline from you so that I may discuss it with my client.”

[8] By email dated July 4, 2018, from Ms. Denny to Ms. Gratsias, Ms. Denny took the position that given the WSIAT Decision, her client should not have to bring the motion at all. Ms. Denny stated that she understood that “the sticking issue will be the issue of costs. If it will be of assistance, I will draft and provide you with the costs outline. I think it will be preferable for all if we can bring this motion on consent” [emphasis added]. This was a reasonable position for Ms. Denny to take. The problem is that Ms. Denny did not follow through. In the evidence before me, despite several requests made by Ms. Gratsias, for a Bill of Costs, the plaintiff was only provided with a draft Bill of Costs for the very first time when served with the Marriott’s Motion Record on September 28, 2018.

[9] By email dated August 23, 2018, Ms. Denny advised Ms. Gratsias that, with respect to costs, she was trying to obtain copies of the invoices for legal fees and disbursements incurred by Marriott in defence of the action prior to the transfer of file to her office in November 2017. She stated that since her firm was retained as counsel, their legal fees totaled approximately $4,200 plus HST. On the same day, in response to this email, Ms. Gratsias responded to Ms. Denny. She stated she was at a loss as to how the firm’s legal fees could be estimated at $4,200 plus HST when all that was done by the defence was a Statement of Defence in the tort action. She asked that Ms. Denny’s account be provided so she could review it with her client. Also on the same day, in response to this email, Ms. Denny advised Ms. Gratsias that she still did not have the access to the accounts from Marriott’s previous counsel and stated that her firm’s fees were “all fees were incurred in the lead-up to and in the hearing of the WSIAT application, and in the many months following receipt of the decision. The legal fees prior to the file transfer will likely be even higher, given the number of parties named in the action, and the fact that the right to sue application was drafted by prior counsel” [emphasis added]. Finally, on the same day, in response to this email, Ms. Gratsias advised Ms. Denny, “As you are aware, the Tribunal did not award any payment of fees or costs in the Right to Sue Application.”

[10] The Motion Record served by Ms. Denny’s firm was for a motion striking out the Statement of Claim and dismissing the action against the Defendants, and for an Order for the costs of the Motion and of the action on September 28, 2018. The motion was dated August 28, 2018. In her cover letter Ms. Denny stated, “[s]hould we be forced to attend and argue this motion, we will be seeking our client(s)’s costs. Please find enclosed our (draft) Bill of Costs on a substantial indemnity scale for your review and discussion with your client” [emphasis added]. The total fees sought in the enclosed draft Bill of Costs were $19,666.

[11] The defendants’ Bill of Costs included almost $13,000 for the attendance before the WSIAT on the Right to Sue Application. There is no dispute that pursuant to the WSIAT’s Practice Direction, section 7.5, the Tribunal does not award costs. No explanation was provided by Ms. Denny to this Court as to why she included the substantial fees in this Bill of Cost, which her clients were clearly not entitled to. The draft Bill of Costs also included almost $5,000 on a substantial indemnity basis for the “initial investigation, drafting and exchange of pleadings”. It appears that instead of bringing an application to strike the claim on the basis of lack of jurisdiction, Marriott chose to prepare and serve a Statement of Defence, obtain an Affidavit of Documents from the plaintiff, which was reviewed, as well as reviewing voluminous medical records and experts’ reports served by the plaintiff.

[12] In her submissions Ms. Denny advised that after service of the Motion Record she did not hear anything further from counsel for the plaintiff until she was served with the plaintiff’s responding materials on November 16, 2018, less than a week before the hearing of the motion. She submitted to me that it was only then that it appeared to her there was no issue with respect to the merits of the motion; I assume because the material filed on the motion by the plaintiff only dealt with the issue of costs. As a result Ms. Denny did not prepare a factum on the motion. I have no evidence that at any time counsel for the plaintiff was prepared to agree to an order that the plaintiff’s action be dismissed. Apart from service of the responding materials of the plaintiff there is no evidence of any communication between counsel between September 28th and the hearing of the motion on November 22, 2018.

[13] Mr. Grande, counsel for the plaintiff who attended on the motion, submitted that Ms. Denny never advised his firm that her client was not seeking costs of the attendance before the WSIAT on the right to sue application. He advised me that he heard it for the first time in Ms. Denny’s submissions before me. As he pointed out, this was despite the fact that Ms. Denny knew that costs were the “sticking issue” since July 2018. Ms. Denny did not challenge the accuracy of this statement. In fact no revised Bill of Cost was provided to the Court or Mr. Grande; the only Bill of Costs before me was the draft served on the plaintiff on September 28, 2017 which included the costs of time spent on the Right to Sue Application. Mr. Grande complained that despite several requests for a Bill of Costs from Ms. Denny, it was unreasonable that he would only be advised of the actual costs of the action being sought by Marriott at the time of the hearing of the motion. It was his position that any amount I award the remaining defendants for the costs of the action should be offset by the plaintiff’s costs for attending the motion before me. It was his position that the motion was unnecessary.

[14] Ms. Denny agreed that the motion was unnecessary but submitted that, having received no communication from the plaintiff to resolve the matter and the plaintiff not having arranged to have her action dismissed on consent, the motion and the attendance were necessary.

[15] Having set out the background that has led to this attendance, I do agree with both counsel that this attendance was a waste of this Court’s time and resources and unfortunately, more importantly, whatever order I make, this motion and attendance has cost their respective clients unrecoverable legal fees although in my view counsel should provide a copy of this decision to their respective clients and reflect on whether or not their clients should bear any costs for this unfortunate result.

[16] I will make the order dismissing the plaintiff’s action against the remaining defendants with costs. Having considered the Bill of Costs provided, even without adding in the costs that should never have been in the Bill of the attendance before the WSIAT, the amount claimed is too high and way too many lawyers were involved. Five different lawyers/students/clerks were involved before the attendance before the WSIAT and before the costs claimed for this Motion was contemplated and that portion of the Bill on a partial indemnity basis totals $3,712 for fees including HST.

[17] I see no reason why five lawyers and one law clerk needed to spend time on this matter although most of the time was spent by Ms. Bawolska who is a 2004 year of call. I would have thought that at the early stage of the action one of the two lawyers called in 2016 whose hourly rates were considerable less could have done most of the work claimed. The other problem I have is that there is only one section in the Bill claiming disbursements which total $1,503. I have no way of knowing what disbursements were incurred for the action as compared to the WSIAT proceeding since some of the costs claimed are for photocopying, binding and legal research. I should not have been left in that position and so I will not guess. No disbursements save the court fee for filing the statement of defence ($144) shall be included. In my view the transaction levy is not something that should be charged to the client-it is overhead.

[18] Considering all of the circumstances I fix the costs of the action of the remaining defendants at $2,500 all inclusive.

[19] As for the costs of the Motion, at the conclusion of the attendance I received Cost Outlines from both counsel. Ms. Denny’s totals $3,003 for fees and disbursements, including HST. Mr. Grande’s totals $3767.

[20] In my view both Ms. Gratsias and Ms. Denny are responsible for this unnecessary motion and attendance. Ms. Gratsias should have taken responsibility for having her client’s claim dismissed. Furthermore, Ms. Gratsias never advised Ms. Denny that her client was prepared to consent to a dismissal of her action. However, had Ms. Denny provided a reasonable Bill of Costs in the first place, that did not claim almost $13,000 for the attendance before the WSIAT on the Right to Sue Application, the parties might have been able to resolve the matter early on before the Motion Record was prepared. The attendance before me should not have been the first time that Mr. Grande was informed that those costs were not being sought.

[21] This case is a classic example of what happens when counsel fail to meaningfully communicate with each other. Had they both sat down and discussed the “sticking issue” of costs, after the WSIAT decision was released, I am confident that the matter could have been resolved. If either party had been unreasonable at that state then Offers to Settle the costs of the Motion could have been served. I would then have a basis to award the reasonable party with costs on a substantial indemnity basis.

[22] In this case, given how and why this Motion proceeded, I find that neither party is entitled to costs of the Motion.

Spies J. Released: January 14, 2019