Court File and Parties

COURT FILE NO.: CV-11-436596 DATE: 20190531 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Octavio Holguin, Plaintiff AND: University Health Network – Toronto General and Toronto Western Divisions, Dr. Michael Tymianski, Dr. Robert A. Willinsky, Dr. Karel Ter Brugge, Dr. Timo Krings, Dr. Lakshmi Venkat Raghavan, Dr. Elizabeth John, John Doe and Jane Doe, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Octavio Holguin, self-represented Andrew Kalamut and Sabrina Bruno, counsel for the defendant physicians Logan Crowell, counsel for the defendant hospital

HEARD: By written submissions

Endorsement on Costs

[1] I was appointed the Case Management judge of this medical negligence action. Mr. Holguin had counsel until October of 2018 when I made an order removing his counsel as solicitor of record. The Plaintiff failed to comply with an order I made for delivery of expert reports. The Defendants brought motions for summary judgment, which I granted in an endorsement dated April 4, 2019. Subsequently, the Defendants forwarded written submissions on the issue of costs, which I have reviewed.

[2] The Defendant physicians ask for costs fixed in the sum of $22,812.86 on a partial indemnity scale. They submit that the motion for summary judgment would not have been necessary if the Plaintiff complied with my order requiring service of expert reports.

[3] The Defendant hospital requests nominal costs in the sum of $2500. Counsel notes that presumptively, the hospital is entitled to its costs and the amount sought is well below the typical award of costs on a motion for summary judgment.

[4] Mr. Holguin is now self-represented. His former counsel was an experienced lawyer in the area of personal injury and negligence; he removed himself as counsel of record because he was unable to secure an expert opinion that was supportive of negligence in this case. The Plaintiff has been advised throughout that in order to succeed on this professional negligence claim, expert opinions on the breach of the standard of care and causation are essential. He has failed to serve any expert reports.

[5] As the Court noted in Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302, fixing costs when the Plaintiff is self-represented is “challenging”. I agree that the determination of entitlement to costs and quantum in cases with self-represented individuals is case specific, and factually driven.

[6] In the instant case, Mr. Holguin has serious health issues, is disabled and requires assistance. He cannot work and is without means. He clearly believes and will not forsake this belief that his current medical situation is as a result of the negligence of the various defendants. He has been unable to secure opinion evidence from experts that supports this belief.

[7] This action was commenced in 2011 and proceeded for seven years. The Plaintiff was not prepared to follow the advice of his former counsel and consent to a dismissal of the claim. As a result, the Defendants were forced to bring motions for summary judgment, which were successful. They are entitled to costs and I see no reason to depart from the usual practice of costs following the event. Mr. Holguin does not fall into the category of self-represented litigant who was unable to secure counsel; he had experienced counsel for seven years and they parted company because Mr. Holguin did not agree with the views of his lawyer on the potential success of the case.

[8] Truth be told, the Plaintiff has no ability to pay any costs order that I make. I appreciate and accept that the costs of defending the claim are higher than the sums being sought. Taking into account the factors enumerated under Rule 57 of the Rules of Civil Procedure, I note that this case was important not only to the Plaintiff but also to the Defendants against whom serious allegations of negligence were made. The lawsuit was not frivolous or vexatious; the Plaintiff has clear, demonstrable disabilities which have had an enormous effect on his life. Instituting the law suit was reasonable in the circumstances. However, in my view, the Plaintiff ought to have followed the recommendations of his counsel when supportive expert opinions were unable to be secured. The motions for summary judgment should not have been necessary.

[9] In my view, the facts of this case dictate a nominal award of damages. I fix the costs of the defendants for the summary judgment motions in the sum of $2500 each payable forthwith by the Plaintiff to the Defendant hospital and the Defendant physicians for a total sum of $5000.

D.A. Wilson J. Date: May 31, 2019