COURT FILE NO.: 18-76555

MOTION HEARD: 20190430

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helena Reym, Robin Reym, Tim Reym and Estate of Gysbertus Reym, Plaintiffs

AND:

Gisela Martens, Michael Martens Estate Trustee /Administrators of the Estate of Bruno Martens, Gisela Martens, Michael Martens, Intact Insurance Company, TD General Insurance Company, Dr. Roland Ng Thow Hing, John Doe #2, John Doe #3, Jane Doe #1, Jane Doe #2 and Jane Doe #3, Defendants

BEFORE: Master Kaufman

COUNSEL: Counsel for the Plaintiffs / Moving parties, Sarah E. Russell

Counsel for Marcia Leach, Responding party, Jordan Dunlop

HEARD: April 30, 2019

COSTS DECISION

[1] The only issue in this motion is whether the plaintiffs are entitled to the costs of a motion to amend the Statement of Claim by substituting Jane Doe #1 for the proposed defendant Marcia Leach. While Ms. Leach initially opposed the motion, she ultimately consented to it.

Background

[2] The action arises out of a motor vehicle accident that occurred on June 14, 2016. The defendant Bruno Martens struck and killed Gysbertus Reym. Mr. Reym’s Estate and members of his family commenced the action on June 14, 2018. On July 12, 2016, prior to commencing the action, they put Mr. Marten’s and his insurer, Intact Insurance, on notice.

[3] Mr. Martens was an 84 years old diabetic at the time of the accident. The plaintiffs’ evidence on this motion is that their counsel contacted multiple individuals to obtain the names of Mr. Martens’ treating physicians but were unsuccessful.

[4] Mr. Martens was charged with an offence in relation to this accident. In 2017, the plaintiffs made a freedom of information request to obtain the Ontario Provincial Police’s (“OPP”) file. They later brought a motion for a full and unredacted copy of the Police file, but the unredacted file did not provide them with the names of Mr. Martens’ physicians.

[5] In their Notice of Action and their Statement of Claim, the plaintiffs made several allegations against John and Jane Does. They were described as health practitioners and /or medical doctors licensed to practice in Ontario who failed to follow the applicable standard of care, thereby causing the accident in whole or in part.

[6] The plaintiffs learned on October 19, 2018 that Mr. Martens resided at Chartwell Pinewood Retirement Residence (“Pinewood”) when they received records through counsel for Mr. Martens’ Estate. These records also disclosed that the proposed defendant, Ms. Leach, was Pinewood’s Health and Wellness Manager. They allege that Ms. Leach was responsible, inter alia, for monitoring Mr. Martens’ blood sugar level.

[7] On November 7, 2018, the plaintiffs sent Ms. Leach a notice and a copy of the Statement of Claim. They brought this motion to substitute her for Jane Doe #1, and Dr. Hing for John Doe #1. Dr. Hing consented to the motion. Ms. Leach did not.

[8] Ms. Leach initially argued that, pursuant to section 21(1) of the Limitations Act, a claim shall not be pursued by adding a party after the expiry of the limitation period, and that subsection 21(2) does not apply because this was not a situation of misnomer.

[9] It is unnecessary for me to address this argument because Ms. Leach ultimately consented to the motion. Counsel for Ms. Leach advised me that her position changed after Ms. Leach made certain admissions when she was cross-examined on her affidavit. That said, I agree with counsel for Ms. Leach that it was not unreasonable for her to oppose the motion based on the facts of this case.

Issue

[10] The only issue in this motion is costs. Specifically:

i. Should the plaintiffs pay the defendants’ costs of opposing the motion on the basis that they were being granted an indulgence? and

ii. Quantum.

Parties’ position and analysis

I. Did the plaintiffs receive an indulgence?

[11] Ms. Leach relies on a line of cases which stands for the proposition that, where a party achieves success in the form of an indulgence granted by the court, costs may be awarded against that party: Fox v. Bourget (1987), 17 C.P.C. (2d) 94, affirmed at 9 W.D.C.P. 142 (Ont. H.C.).

[12] In Ravenda Homes Ltd. v. 1372708 Ontario Inc. [2010] O.J. 4465, 2010 ONSC 5784 this Court interpreted “indulgence” as a correction or rectification of a flaw or defect caused by the moving party. In some cases, indulgences can result in costs being awarded to the responding party:

However, a successful motion for leave to amend a pleading often does not result in a costs order in favour of the moving party as the amendment is often construed as a benefit or an indulgence to the moving party to correct a flaw or defect in that party's pleading.

In some cases, such an indulgence from the court results in a costs order in favour of the responding party. [^1]

[13] Ms. Leach argues that the plaintiffs, with reasonable diligence, could have discovered that Mr. Martens resided at Pinewood and could have commenced a claim against Pinewood (in vicarious liability) within the limitation period.

[14] I am not persuaded by these submissions. As Ms. Leach says herself, Pinewood is not a nursing facility but an independent living facility. It is not self-evident that it employs health practitioners who were responsible for treating Mr. Martens. Before bringing the action, the plaintiffs took reasonable steps to identify Mr. Martens’ treating health practitioners. They made a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, and they brought a motion for disclosure of the OPP’s unredacted file.

[15] The plaintiffs only received records identifying Ms. Leach on October 19, 2018. They put her on notice on November 7, 2018 and brought this motion on November 20, 2018. In my view, they acted with diligence in all the circumstances.

II. Quantum

[16] Pursuant to the Courts of Justice Act, s. 131(1), the Court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the Court when determining the issue of costs.

[17] The plaintiffs have provided a costs outline by which they seek $29,726.96 on a full indemnity basis and $22,308.51 on a partial indemnity basis. In contrast, Ms. Leach claims only $10,194 on a substantial indemnity basis and $6,069 on a partial indemnity basis. To a large extent, the difference stems from the plaintiff’s senior counsel’s hourly rate of $675 per hour which is more than three times the highest rate charged by counsel for Ms. Leach ($205 per hour).

[18] I agree with Ms. Dunlop that some of the work undertaken by senior counsel could have been delegated to a lawyer at a lower hourly rate. Attending before Master Fortier for the purposes of an adjournment (4 hours) is a good example.

[19] The plaintiffs’ disbursements also include $3,063.75 for photocopy costs. The plaintiff’s motion record and book of authorities is about 3 inches thick, and this amount has not been justified. In comparison, the defendants spent only $137 for photocopies.

[20] There is no basis to award costs other than on a partial indemnity basis.

[21] Assessing the reasonableness of the counsel fee from the perspective of the reasonable expectations of the losing party, I fix costs in the amount of $12,000 all-inclusive. Ms. Leach could have reasonably expected that the moving party would incur more costs than a responding party.

[22] Rule 57.03(1) provides that costs should be paid within 30 days “unless the court is satisfied that a different order would be more just”. Here, it would be more just to order that costs be payable to the plaintiff in the cause for the following reasons: I find that it was reasonable for the Ms. Leach to have opposed the motion until she ultimately consented to it, and Ms. Leach may ultimately be successful at trial. In the circumstances of this case, she should not have to pay an interlocutory costs award to the party that won the battle but lost the war.

[23] Accordingly, I award costs of the motion, fixed in the amount of $12,000, to the plaintiff in the cause.

Master Kaufman

Date: May 3, 2019

[^1]: Ravenda Homes Ltd. v. 1372708 Ontario Inc. [2010] O.J. 4465, 2010 ONSC 5784 at paras 8 and 9.