COURT FILE NO.: CV-11-16636
DATE: 20190730
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ryan Nelson, Plaintiff
AND:
Leigh Charles Chadwick, Diane Marie Daniher, Fleming House Limited carrying on business as Charly’s Brew Pub and Grill, RBC General Insurance Company and Jevco Insurance Company, Defendants
BEFORE: Verbeem J.
COUNSEL: Alan L. Rachlin, Counsel, for the Plaintiff
Brian Smith, Counsel, for the Moving Party, Diane Marie Daniher
Michael B. Stocks, Counsel for Defendant, Leigh Charles Chadwick
Bruce R. Mitchell, Counsel for Defendant, RBC General Insurance Company
Alexander Curry, Counsel for Defendant, Fleming House Limited, c.o.b. as Charly’s Brew Pub and Grill
HEARD: In Writing
Costs Endorsement
Introduction
[1] Approximately two months before the scheduled trial date in this action, the defendant, Diane Marie Daniher, brought a motion to compel the plaintiff, Ryan Nelson, to attend a neuropsychological assessment by Dr. West scheduled for April 24, 2019. By order dated March 26, 2019 and for reasons that followed on April 2, 2019, I granted the relief Ms. Daniher requested. The timing of the proposed assessment necessitated an adjournment of the trial and its removal from the May 27, 2019 trial list.
[2] The relevant parties have now delivered written costs submissions in accordance with the timetable that I endorsed. My reasons and order with respect to the costs of Ms. Daniher’s motion follow. For appropriate context, these reasons should be read together with my reasons for decision on the motion. A brief summary of the relevant background follows.
[3] This is a personal injury action arising out of a motor vehicle accident that occurred on November 27, 2009, in which the plaintiff seeks damages in excess of 2.3 million dollars. At the time of the accident, the plaintiff was a passenger in a vehicle owned by Ms. Daniher and operated by the defendant, Leigh Charles Chadwick. Ms. Daniher alleges that her vehicle was operated without her consent.
[4] Mr. Nelson alleges that as a result of the accident, he sustained a traumatic brain injury (“TBI”) together with other physical injuries, including a cervical fracture that required surgical repair. During the course of the litigation, the plaintiff has produced various expert reports in which diagnoses of a TBI are endorsed. However, the available opinion evidence concerning the severity of the plaintiff’s asserted TBI has been the subject of some variance.
[5] For example, at the request of the plaintiff’s former counsel, the plaintiff was assessed by Dr. Wai Ng, neurosurgeon, in February 2012. Dr. Ng opined that the plaintiff suffered a mild to moderate TBI as a result of the accident, said to be associated with moderate cognitive dysfunction mostly in the areas of memory and organizational tasks. The majority of Dr. Ng’s report extensively addresses the plaintiff’s post-accident physical complaints, which include: chronic headaches; chronic neck pain; chronic bilateral shoulder pain; and chronic back pain.
[6] In March 2012, at the request of the plaintiff’s former counsel, the plaintiff underwent a neuropsychological examination, conducted by Dr. Gloria Grace. In her subsequent report, dated August 16, 2012, Dr. Grace opined that the plaintiff had likely suffered a mild TBI as a result of the accident. She further opined that the plaintiff’s ongoing reported cognitive difficulties were likely the result of etiological factors other than a brain injury, including: the adverse cognitive effects associated with chronic pain and headaches; fatigue; psychological factors; and possible medication effects. Dr. Grace also opined that any improvement in the plaintiff’s cognitive functioning would depend on any improvement related to his pain, fatigue, psychological issues and ongoing need for medication.
[7] The evidence on the motion also consisted of certain documentation that recorded the plaintiff’s periodic historical complaints of cognitive symptoms including difficulties with memory, concentration and attention.
[8] In readying this matter for trial, plaintiff’s counsel attempted to secure an updated report from Dr. Grace, but her schedule could not accommodate a timely assessment relative to the scheduled trial date. As a result, plaintiff’s counsel arranged an assessment with a second assessor, Dr. Cancelliere, which was conducted in October 2018. A report authored by Dr. Cancelliere was served on defence counsel in December 2018. In disposing of the motion, I found that the opinions expressed in Dr. Cancelliere’s report fundamentally changed the nature of the available information concerning the severity of the alleged TBI and the etiology of the plaintiff’s ongoing reported cognitive dysfunction.
[9] Specifically, unlike Dr. Grace, Dr. Cancelliere concludes that the plaintiff sustained at least a moderate head injury in the accident and that there is substantial evidence to support that the plaintiff sustained a severe head injury as a result of the accident. Similarly, Dr. Cancelliere’s opinion with respect to the etiology of the plaintiff’s ongoing cognitive symptoms differs from Dr. Grace’s expressed opinion, as Dr. Cancelliere concludes that the plaintiff’s cognitive symptoms have a neurogenic etiology.
[10] In disposing of the motion, I concluded that: reasonably, the jury’s assessment of damages could be informed and influenced by the available information concerning the severity of the plaintiff’s asserted TBI and the etiology of his ongoing cognitive symptoms; the opinions expressed by Dr. Cancelliere on the foregoing issues represented important changes to the circumstances that existed at the time the proceeding was added to the trial list; and that from Ms. Daniher’s perspective, those changes were unexpected.
[11] Ultimately, I was satisfied that Ms. Daniher had established that the proposed examination was necessary and that the unfairness that resulted to the plaintiff as a result of an adjournment of the trial was eclipsed by the unfairness that would be visited upon Ms. Daniher, if she were forced to proceed to trial without an opportunity to address Dr. Cancelliere’s proposed opinion evidence through the engagement of her own expert.
Costs Outline
[12] Prior to the release of my reasons for decision on the motion, the parties each submitted a costs outline.
[13] The plaintiff’s costs outline supports a proposed partial indemnity costs award totalling $5,199.24, which consists of: $4,113.73 on account of legal fees (premised on 24.6 hours of time incurred by legal professionals); H.S.T. in the amount of $534.78; and disbursements in the amount of $550.73.
[14] Ms. Daniher’s costs outline supports a partial indemnity costs award totalling $4,868.71, which consists of: $4,167 on account of legal fees (premised on 20.1 hours of time incurred by legal professionals); H.S.T. in the amount of $541.71; and disbursements in the amount of $160.00 (the cost of filing the motion record).
The Parties’ Positions
[15] Ms. Daniher submits that she was successful on the motion and ought to be awarded her costs on a partial indemnity basis, in accordance with the costs outline that she filed. She contends that the amount that she claims: falls within an amount that reasonably ought to have been anticipated by the plaintiff in the event that he was unsuccessful on the motion; and it is consistent with (and somewhat lower than) the quantum claimed, on a partial indemnity basis, in the plaintiff’s own costs outline.
[16] The plaintiff submits that despite Ms. Daniher’s success on the motion, he should be awarded costs on a partial indemnity basis because the motion was not brought in a timely manner. He correctly observes that in disposing of the motion, I found, among other things that, as of June 2017 (when the action was added to the trial list) Ms. Daniher knew that he had served expert reports that supported his position that he sustained a TBI as a result of the accident. The plaintiff does not, however, refer to my findings concerning the discord between the information that existed in June 2017 in respect of the issues of the severity of the alleged TBI and the etiology of the plaintiff’s reported cognitive symptoms and the information related to those issues that are set out in Dr. Cancelliere’s report (the latter of which was served on the defendants in December 2018). The plaintiff further submits that Ms. Daniher’s counsel did not advise his counsel that he intended to have the plaintiff undergo a neuropsychological assessment until February 28, 2019 (and specifically he did not raise the issue during a pretrial conference held before me, in December 2018).
[17] The plaintiff also requests an award of $5,000 plus applicable H.S.T. as costs thrown away in preparing for the May 27, 2019 trial date, and an additional sum in the amount of $19,515.20 representing an estimate of the disbursements that he will incur for updated assessments by Dr. Cancelliere ($12,249.20), Ms. Um on the issue of future care costs ($3,051), and Dr. Sohanpaul, a chronic pain specialist ($4,215), which he calculates by reference to the amounts charged by each of the assessors for their original assessments and reports.
[18] In reply, Ms. Daniher submits that her counsel did raise the potential that she may need to respond to Dr. Cancelliere’s report during the course of the pre-trial conference on December 19, 2019.
[19] On the issue of the plaintiff’s asserted “anticipated disbursements”, Ms. Daniher submits:
a) updates to the identified reports are not necessary because there is no evidence that the plaintiff’s condition has changed since the latest assessments were done in May 2017 and November 2018, or that his present condition will change prior to the next trial date; and
b) in the event “updates” are necessary, the associated costs ought to be substantially less than the cost of the initial reports.
[20] Finally, Ms. Daniher submits that it is unclear whether the “costs” that the plaintiff asserts were “thrown away” in preparation for the May 2019 trial date, represent the total amount of time that counsel invested in trial preparation or only that portion of time that is attributable to work that will have to be redone as a result of the adjournment.
Applicable Legal Principles
[21] An order of costs is discretionary. Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43, provides the following:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in 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.
[22] The discretion to award costs must be exercised in accordance with the facts and circumstances of the case and in accordance with the factors set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”): see Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), at para. 22, leave to appeal refused, 2006 CarswellOnt 7749 (C.A.).
[23] Rule 57.01(1) of the Rules provides:
In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[24] A successful party does not have a right to costs but it does have a reasonable expectation that a costs award will be made in its favour. Normally, costs follow the event and are awarded on a partial indemnity basis payable forthwith (within 30 days). Discretion can be exercised in exceptional circumstances to depart from any of those “norms”: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5; and Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal refused, 2014 ONCA 353.
[25] Fixing costs is not a “mechanical” exercise. A consideration of experience, rates charged and hours spent is appropriate but is subject to the overriding principle of “reasonableness” as applied to the factual matrix of the particular case, with a view to balancing “compensation of the successful party” with “the goal of fostering access to justice”: see Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA).
[26] The quantum awarded should reflect an amount that the court considers to be fair and reasonable within the factual matrix of the particular case rather than a precise measure of the actual costs of the successful litigant: see Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), at para. 4.
[27] The parties’ disputed issues also include the plaintiff’s claim for costs thrown away as a consequence of the adjournment of the trial. Costs thrown away is a request for payment of a party’s costs for wasted trial preparation including preparation that will have to be redone as a result of the trial adjournment, and are generally payable on a full or substantial recovery basis: see Pittiglio v. Pittiglio, 2015 ONSC 3603, at para. 5. An award of “costs thrown away” is not designed to penalize a party who seeks, or is responsible for, an adjournment of the trial, but rather to indemnify a party for the wasted time incurred for trial preparation that was stripped of its value as a result of a subsequent adjournment or mistrial: see Graziano v. Ciccone, 2017 ONSC 362, at para. 8. The assessment of “costs thrown away” is an intuitive exercise that is not performed with exacting precision. The court is required to carefully review a party’s bill of costs to determine, intuitively, what portion of the trial preparation or work falls within the scope of “wasted time”: see Stadnyk v. Dreshaj, 2019 ONSC 1184, at para. 15.
The Principles Applied
[28] There is no compelling reason to decline an award of costs to Ms. Daniher. As the successful party, she enjoys a reasonable expectation that costs will be awarded in her favour and that such an award will be payable within 30 days. I do not accept the plaintiff’s assertion that the timing of Ms. Daniher’s request that he undergo a neuropsychological examination ought to disentitle her to such an award, or that it justifies an award of costs in his favour. I will explain.
[29] Similar to his submissions on the motion, the plaintiff observes that nearly half a decade before the action was added to the trial list, he provided the defendants with information supporting his contention that he sustained a TBI as a result of the accident and that he periodically reported cognitive dysfunction, thereafter. In that context, the plaintiff criticizes Ms. Daniher for failing to arrange a neuropsychological examination before the proceeding was added to the trial list. The plaintiff’s position ignores Ms. Daniher’s counsel’s evidence that he elected not to pursue such an examination based on Dr. Grace’s 2012 opinion with respect to the severity of the plaintiff’s TBI and the etiological causes of the plaintiff’s ongoing cognitive symptoms (i.e. not the result of TBI). The evidence on the motion further revealed that it was only when Ms. Daniher’s counsel received Dr. Cancelliere’s report in December 2018 that his position changed, in accordance with the change in the available information concerning “TBI severity” and “etiology”. In disposing of the motion, I accepted, as reasonable, the position of defence counsel as set out above. Therefore, I am not persuaded that counsel’s failure to arrange a neuropsychological examination before the receipt of Dr. Cancelliere’s report is a valid justification for denying Ms. Daniher’s costs request.
[30] The plaintiff also asserts that during a pre-trial conference held before me in December 2018 (shortly after service of the Cancelliere report), Ms. Daniher’s counsel failed to raise the potential that a response to Dr. Cancelliere’s report may be required. Without delving into the content of that pre-trial conference, I do not give effect to that submission.
[31] Nonetheless, it does not appear that Ms. Daniher’s counsel engaged in any further proactive communication with plaintiff’s counsel concerning his perceived need to conduct a neuropsychological examination until approximately two months after Dr. Cancelliere’s report was served. Although I do not find that “delay” to be a valid basis upon which to deny Ms. Daniher costs of the motion, it is a relevant factor for consideration in evaluating the plaintiff’s claim for costs thrown away.
[32] Similarly, I do not find that the “delay” between Ms. Daniher’s counsel’s receipt of Dr. Cancelliere’s report and his subsequent communication with plaintiff’s counsel in February 2019 (concerning the proposed assessment), amounts to conduct that unnecessarily lengthened the duration of the proceeding. Although the proposed scheduled April 2019 assessment necessitated the adjournment of the trial, the assessment itself was necessitated by the plaintiff’s service of Dr. Cancelliere’s report in December of 2018. Dr. Cancelliere’s report was not a supplemental report by an expert who was previously engaged by the plaintiff. Dr. Cancelliere was a new expert offering his original findings, opinions, and conclusions through the report that was served in December 2018. Based on the content of that report, it was reasonably foreseeable that one or more of the defendants would seek to respond to it through their own assessment.
[33] In all of the circumstances, I cannot conclude that the adjournment of the trial would have been avoided had Ms. Daniher’s counsel made efforts in December 2018 and/or January 2019 to schedule Dr. West’s assessment. There is no information indicating that had counsel done so, an assessment with Dr. West could have been scheduled for an earlier date.
[34] Turning to the other relevant factors in s. 57.01(1) of the Rules, I find that the amounts claimed in Ms. Daniher’s costs outlines (and the underlying number of hours expended by legal counsel and the rates charged) to be reasonable, proportional and fair, in the factual matrix before me, based on: the experience of counsel; the nature of the disputed issues on the motion (which were not overly complex) and the submissions made in relation thereto; the materials filed (including facta); the importance of the issues to the active participants on the motion (both the trial fairness issue raised by Ms. Daniher and the fairness issues raised by the impact of an adjournment of the trial, particularly on Mr. Nelson).
[35] For the foregoing reasons, I find that Ms. Daniher is entitled to costs of the motion fixed in the amount of $4,868.71, prior to consideration of the plaintiff’s claim for costs thrown away, which I will address below.
[36] In assessing the plaintiff’s claim for costs thrown away, the timing of Ms. Daniher’s counsel’s communication of his intention to have the plaintiff assessed by Dr. West, is relevant. The trial was scheduled to commence at the end of May 2019. Notwithstanding any commentary he may have offered with respect to the issue during the December 2018 pretrial conference, it remains that Ms. Daniher’s counsel did not advise plaintiff’s counsel of his definitive intent to proceed with the proposed assessment of the plaintiff (which Ms. Daniher’s counsel ought reasonably to have known would necessitate an adjournment of the trial) until the end of February 2019. The trial of this action is expected to last several weeks and involves a substantial amount of multi-disciplinary medical evidence, together with issues of consent to operate the Daniher vehicle and issues related to commercial host liability. In those circumstances, Ms. Daniher’s counsel ought reasonably to have foreseen that plaintiff’s counsel would have begun his trial preparation, in earnest, more than 90 days before the scheduled trial date.
[37] Thus, while I am mindful that the plaintiff’s assessment by Dr. West was necessitated by the plaintiff’s service of Dr. Cancelliere’s report in December 2018, I find that Ms. Daniher’s delay in arranging Dr. West’s examination and more fundamentally his delay in advising plaintiff’s counsel that he unequivocally intended to proceed with such an assessment, resulted in wasted trial preparation efforts by plaintiff’s counsel.
[38] I appreciate that not all preparation by plaintiff’s counsel was necessarily rendered valueless by the adjournment of the trial. Plaintiff’s counsel submits that 15 hours of that time was thrown away. There is no indication whether that constitutes all of the time spent by counsel on trial preparation or if it is a subset of a greater amount of time. Further, there is no description of the activities with which those 15 hours are said to have been associated. However, given the nature of the issues and evidence that will be engaged at trial and even in the absence of a detailed bill of costs, I am satisfied that plaintiff’s counsel spent at least 10 hours engaged in preparatory efforts that will have to be redone as the new trial date approaches. Although costs thrown away are typically awarded on a substantial or full recovery basis, plaintiff’s counsel has advanced a claim in that regard that is predicated on an effective rate of $333/hr ($5,000 ÷ 15 hours). Applying that rate, the value of the plaintiff’s costs thrown away, as I have found it, is $3,762.90 inclusive of H.S.T.
[39] I am not persuaded that any amount on account of anticipated future disbursements ought to be ordered as costs thrown away at this stage of the proceeding. Unlike the circumstances in Quan v. Staar Surgical Co., 2014 ONSC 27, upon which the plaintiff relies, the “reports” that initiated the chain of events resulting in the ultimate adjournment of trial were not provided by the defendants in this instance. As I have set out above, although the timing of Dr. West’s assessment resulted in the trial adjournment, the assessment was necessitated by the plaintiff’s delivery of an original report by a new assessor in December 2018. Further, I am not persuaded that the anticipated future updating reports that the plaintiff identifies, will necessarily be required. In my view, to the extent that further disbursements are incurred by the plaintiff to “update” existing expert reports, the appropriate treatment of such expenses, from a costs perspective, is best left to the trial judge.
[40] In the result, after deducting the costs thrown away by the plaintiff, I find that the defendant, Ms. Daniher, is entitled to costs of the motion in the amount of $1,106.71. I am mindful of the provisions of r. 57.03(1) of the Rules. However, given the nature of the medical evidence adduced on this motion (which I canvassed in my reasons disposing of the motion on the merits), I find that it is more just to order that costs be paid in any event of the cause rather than within 30 days.
[41] As a result of the foregoing, an order will go that at the conclusion of this proceeding, Ryan Nelson pay to Diane Marie Daniher, the sum of $1,106.71 as costs of this motion, in any event of the cause.
“original signed by Gregory J. Verbeem”
Gregory J. Verbeem
Date: July 30, 2019 Justice