COURT FILE NO.: CV-15-22423
DATE: 20190925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSANA ENNS, by her Litigation Guardian The Office of the Public Guardian and Trustee, and SUSIE ENNS, a minor, by her Litigation Guardian Kelly Bashak
Plaintiffs
– and –
AGANETHA GOERTZEN and CORNELIUS GOERTZEN
Defendants
Celina DeVuono, for the Plaintiffs
Michael E. Drake, for the Defendants
HEARD: Written submissions
REASONS for the determination of costs arising from the dismissal of the defendants’ motion for summary judgment
VERBEEM J.:
Overview
[1] For reasons dated July 15, 2019, and reported at 2019 ONSC 4233, I dismissed the defendants’ motion for summary judgment dismissing: the claim advanced by the plaintiff, Susana Enns, by her litigation guardian, the Public Guardian and Trustee, for damages on account of bodily injuries she allegedly sustained as a result of a motor vehicle accident that occurred on June 10, 2011; and the derivative Family Law Act, R.S.O. 1990, c. F.3 (FLA) claim of her daughter, the minor plaintiff, Susie Enns, by her litigation guardian Kelly Bashak. In the action, Susie also maintains her own claim in respect of bodily injuries that she allegedly sustained as a result of the accident. On its face, the defendants’ summary motion also ostensibly sought to dismiss the minor plaintiff’s bodily injury claim, although at the outset of submissions, defence counsel quickly clarified that that relief was not being pursued in the context of the defendants’ motion.
[2] The defendants’ asserted basis for the motion was relatively straightforward. The statement of claim in this instance was issued on July 3, 2015, more than four years after the date of the subject accident. The defendants posited that Susana’s claim and Susie’s derivative claim were barred by the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act”) because the proceeding in which they were asserted was not commenced within two years of Susana becoming aware of a body of medical information that could reasonably persuade a trial judge that her claim met the verbal threshold prescribed by s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, as amended.
[3] Prior to the motion, the plaintiffs did not plead material facts in support of a position that the claims asserted in the proceeding were discovered (in accordance with s. 5 of the Act) on a date subsequent to the date that the accident occurred. They did adduce evidence on the motion in support of a position that the date that Susana’s claim was discovered was within two years of the date the proceeding was commenced, and that she lacked capacity to commence the proceeding any earlier than she did.
[4] On the totality of the evidence adduced on the motion, I concluded that there were genuine issues that required a trial in order to determine the date upon which Susana discovered, or a reasonable person with her abilities and in her circumstances would have discovered, her claim (in accordance with s. 5 of the Act); and whether Susana was incapable of commencing a proceeding in respect of her claim because of her physical, mental or psychological condition, at any time between the date of the accident and the date the proceeding was commenced, and if so, the specific period or periods of time that she was so incapable. I also granted leave to the plaintiffs to deliver a Reply pleading alleging the facts upon which they rely in respect of the limitation period issues.
[5] The plaintiffs were successful on the motion. I must now address the issue of costs.
[6] At the conclusion of submissions on the motion, which took place over the course of three non-consecutive days, the parties filed costs outlines, respectively. There is a significant difference in the respective quantums set out therein.
[7] The plaintiffs’ costs outline was filed in support of a total costs award of $97,824.74 on a partial indemnity basis, in respect of the motion. That sum is comprised of fees in the amount of $84,242.73, an additional counsel fee in the amount of $1,089, HST in the amount of $11,093.12; and disbursements in the amount of $1,399.89.
[8] The defendants’ costs outline was filed in support of a total costs award for the entire action (including the summary judgment motion), on a partial indemnity basis in the amount of $15,190.85, comprised of: fees in the amount $12,159 inclusive of HST; an additional counsel fee, inclusive of HST, in the amount of $500; and disbursements in the amount of $2,531.85.
[9] In my reasons dismissing the defendants’ motion, I endorsed a timetable for the delivery of further written submissions on the issue of costs, which I have now received. I have considered both the parties’ original costs outlines and their additional submissions in writing, in the context of: the relevant provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 (primarily s. 131) and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) (primarily r. 57.01); and the applicable decided cases, which I will refer to below. In so doing, I have determined that the plaintiffs as the successful parties are entitled to an award of costs in their favour on a partial indemnity basis in the amount of $35,000 on account of legal fees, together with HST in the amount of $4,550 and disbursements (inclusive of HST) of $1,399.89, for a total costs award of $40,949.89. The costs award shall be payable within 30 days.
[10] Below, I will explain my reasons for concluding that in all the circumstances, the foregoing costs award is fair, reasonable, and proportional and one which the unsuccessful parties ought reasonably to have anticipated in the event that their motion was unsuccessful. In so doing, I will provide contextual background to the circumstances surrounding the motion; outline the parties’ respective costs positions; review the legal principles applicable to the costs issues before me; and apply those principles to the case specific circumstances.
Contextual Background to the Motion
[11] In the action, the plaintiffs seek damages in an aggregate amount exceeding $3.5 million, on account of their alleged injuries, losses and damages said to have been caused by the motor vehicle accident in which they were involved on June 10, 2011. Significantly, Susana suffered a stroke approximately one month after the subject accident. In the context of the action, she alleges that the stroke was caused by the accident.
[12] The proceeding was commenced by statement of claim on July 3, 2015. Occupational therapist, Kelly Bashak, has served as the minor plaintiff Susie’s litigation guardian since the inception of the proceeding. Conversely, Susana’s proceeding was commenced and proceeded through examinations for discovery without a litigation guardian acting on her behalf. In 2017, the Office of the Public Guardian and Trustee (“PGT”) was appointed as Susana’s statutory guardian of property. As a result of an order to continue made on August 21, 2017, the PGT now acts as Susana’s litigation guardian in this proceeding.
[13] The defendants delivered a statement of defence and jury notice on September 9, 2015, in which, among other things, they pled that the plaintiffs failed to commence their action within the two-year limitation period prescribed by the Act and, as such, their claims were barred by law. The plaintiffs did not deliver a Reply to the statement of defence nor did they plead material facts in their statement of claim in support of a position that Susana’s claim was first discovered within the two-year time period that preceded the date upon which the statement of claim was issued. Similarly, the plaintiffs did not plead that during any period of time following the accident, Susana was incapable of commencing a proceeding in respect of her claim because of her physical, mental or psychological conditions.
[14] In the context of the defendants’ summary judgment motion, the plaintiffs acknowledged their failure to plead such material facts. However, they posited that the motion had to be determined on the basis of the evidence before the court and not a deficiency in their pleadings. They requested leave to deliver a Reply, as a term of an order dismissing the defendants’ motion. Ultimately, I granted leave in that regard.
[15] The evidence adduced on the motion was somewhat atypical. The record generally consisted of: three affidavits sworn by members of the law firms representing the respective parties (Mr. Cadden in respect of the defendants and Ms. Stewart in respect of the plaintiffs) to which exhibits cumulatively totalling over 1000 pages were attached; a Notice of Intention, filed by the plaintiffs concerning reports from a certified capacity assessor and an occupational therapist; and a brief affidavit from the plaintiff’s family physician averring to the truth of his responses to a form of questionnaire authored by plaintiffs’ counsel, concerning Susana that he completed and appended to his affidavit.
[16] Ms. Stewart swore two affidavits, specifically: on November 29, 2017 (appending 84 exhibits); and on March 27, 2018 (appending two exhibits). Mr. Cadden’s affidavit was sworn on September 1, 2016. Neither solicitor was cross-examined on their affidavit evidence.
[17] The exhibits appended to the solicitors’ respective affidavits primarily consisted of contemporaneous medical documentation in respect of Susana’s pre and post accident physical, mental and psychological conditions and concordant treatment for same. It was not until submissions (and specific inquiry from the court) that the parties expressed their accord that: the authenticity of the exhibits was not in issue; the respective authors of the medical and treatment related documentation were all qualified to render the opinions expressed therein; and any information that the respective authors of such documentation recorded that they received, was, in fact, received by them. The parties did not agree that the information received by the authors of such documentation was necessarily reliable or true.
[18] Each of the parties filed a complete copy of Susana’s examination for discovery transcript as an exhibit to the respective solicitor affiants’ affidavits.
[19] Despite its voluminous nature, it was clear that the documentation appended to the solicitor affidavits did not represent the totality of the available medical documentation concerning Susana’s condition (both pre and post accident). Instead, in large part, the parties put forth discrete aspects of the contemporaneous medical documentation that they assert supported their respective positions on the motion. Ms. Stewart’s affidavit also contained evidence in the form of information that is said to have been acquired directly through: her own interactions and observations of Susana; her personal involvement in the action; and her interactions with certain of Susana’s treatment providers. Ms. Stewart also opined on the reasonableness of inferences that she suggested could be drawn from the documentary evidence available on the motion. Her evidence in that regard was challenged and struck.
[20] The parties did not conduct any examinations of witnesses on a pending motion. Instead, through the exhibits appended to their lawyers’ affidavits, the parties cumulatively adduced evidence derived from in excess of 25 “non-party” experts (in the form of notes, records and reports made by healthcare practitioners).
[21] The plaintiff delivered one Notice of Intention dated March 21, 2018, (approximately one month before the first day of the hearing of the motion) with respect to a report from a capacity assessor dated December 20, 2016 (opining that Susana lacked the capacity to instruct legal counsel as of the date of a December 2016 assessment) and an occupational therapy and home assessment report dated March 6, 2018. Notices of Intention were not delivered with respect to any of the other exhibits appended to the affidavits of either solicitor.
[22] Finally, Susana’s litigation guardian delivered an affidavit sworn by her family physician on April 17, 2018 (one week before the first day of the hearing of this motion). The substantive portion of the affidavit simply identified as an exhibit, a copy of correspondence authored by Susana’s counsel to the doctor dated March 19, 2018. The doctor then responded to various “yes” or “no” questions posed therein. He was not cross-examined.
[23] The defendants delivered their original factum with their motion record. The plaintiffs delivered a factum premised on the content of their responding record. The defendants ultimately delivered two supplemental facta responding to the material originally served by the plaintiffs and the material served with the plaintiffs’ first supplemental motion record, respectively.
[24] At the outset of the motion and consistent with the facta that they filed, the defendants took issue with the admissibility of discrete aspects of 53 of the 174 paragraphs contained in Ms. Stewart’s November 29, 2017 affidavit; the capacity assessor’s report; and the occupational therapist’s report dated March 6, 2018. In response to the defendant’s admissibility challenges, the plaintiff conceded that a small number of the challenged portions of Ms. Stewart’s affidavit ought to be struck. The defendants then withdrew a number of their challenges. The balance of the challenges were argued as part of the motion.
[25] The plaintiffs also challenged the admissibility of certain aspects of four paragraphs in Mr. Cadden’s affidavit.
[26] Much of the motion’s hearing time was devoted to the admissibility issues raised by the defendants and the plaintiffs’ response thereto. A significant number of the defendants’ concerns related to what it characterized as unsourced hearsay. The plaintiffs submit that their counsel spent a significant amount of time, both in and out of court, reviewing the record to document the sources of the hearsay that the defendants characterized as “unsourced”.
[27] My rulings with respect to both the defendants and plaintiffs’ respective admissibility challenges are fully set out in my reasons for dismissing the summary judgment motion. For the purposes of the remaining issue of costs, I observe that despite some success, I did not give effect to the majority of the defendants’ admissibility challenges. Conversely, I did give effect to the majority of the plaintiffs limited admissibility challenges.
[28] Ultimately, the plaintiffs were successful on the motion. The defendants’ motion for summary judgment was dismissed and the plaintiffs were granted leave to deliver a Reply pleading.
Position of the Plaintiffs
[29] As the successful parties, the plaintiffs submit that they are entitled to costs of the motion, which ought to be fixed on a partial indemnity basis in accordance with the quantum set out in their costs outline.
[30] The plaintiffs’ claim for costs is calculated in reference to the time spent by Ms. Stewart (called to the bar in 1992), Ms. DeVuono, who argued the motion as a result of Ms. Stewart’s status as the primary affiant in support of the plaintiffs’ position (called to the bar in 2006), and Ms. Girard and Ms. Silani, members of the support staff at the plaintiffs’ counsel’s office.
[31] Ms. Stewart’s time is claimed at a partial indemnity rate of $297 per hour (premised on an actual rate of $450 per hour). Ms. DeVuono’s time is claimed at a partial indemnity rate of $181.50 per hour (premised on an actual rate of $275 per hour). Ms. Girard’s time is claimed at a partial indemnity rate of $59.40 per hour (premised on an actual rate $90 per hour) and Ms. Silani’s time is claimed at $26.40 per hour (premised on an actual rate $40 per hour). The plaintiffs submit that in connection with the issues and conduct of this motion: Ms. Stewart spent 102.7 hours; Ms. DeVuono spent 272.2 hours; Ms. Girard spent 64.2 hours; and Ms. Silani spent 37 hours.
[32] The plaintiffs submit that the record patently disclosed that there were genuine issues that required a trial to determine and, therefore, the motion should not have proceeded. Further, in the face of a jury notice, a summary judgment motion ought not to have been advanced at all. The complexity of the motion was increased as a result of the significant evidentiary challenges raised by the defendants. The plaintiffs acknowledge that the motion became more complex as a result of their own request for leave to amend their statement of claim or to file a Reply. The plaintiffs submit that the issues of law and fact on the motion were more complex than “average”.
[33] From the plaintiffs’ perspective, the issues on the motion were extremely important. If the motion was successful, Susana’s claim would have been dismissed.
[34] Finally, the plaintiffs maintain that their counsel was required to spend a significant amount of time and effort to prepare responding material and argument in relation to the motion. The time spent was reasonable in the context of: the voluminous nature of Susana’s medical records and file; the complexity and number of issues on the motion; and the multiple facta delivered by the defendants. They submit that much of the time spent in preparing responding material was devoted to addressing the defendants’ evidentiary challenges, the majority of which were resolved in the plaintiffs’ favour.
Position of the Defendants
[35] The defendants submit that the costs quantum claimed by the plaintiffs is not proportional and it significantly exceeds their reasonable expectations. They seek to illustrate the point by contrasting the plaintiffs’ asserted claim of $97,824.75 on a partial indemnity basis, with their own partial indemnity costs claim for the action, in the amount of $13,546.45. They observe that their own counsel spent a total of 82.5 hours on the entire action. Yet, the plaintiffs’ counsel spent a combined 483 hours in relation to the motion, only. The defendants assert that the amount of time spent by the plaintiffs’ counsel was exorbitant, in the extreme. For example, the defendants submit that the plaintiffs claim a total of 108 hours for preparing a responding affidavit and a further 113.5 hours for preparing a factum and casebook. The defendants submit that such excessive preparation costs are not reasonable in the circumstances.
[36] The defendants further contend that there has been a significant amount of duplication of work between counsel. Both Ms. Stewart and Ms. DeVuono have claimed for preparation and attendance at each of the three days that the motion was heard. However, it was only Ms. DeVuono who argued the motion. The defendants submit that Ms. Stewart’s attendance was unnecessary.
[37] The defendants also posit that a significant portion of the plaintiffs’ costs could have been avoided had they put their best evidentiary foot forward at the outset. In their original responding material, the plaintiffs relied only on affidavit evidence from their counsel, Ms. Stewart, rather than obtaining an affidavit from a treating physician, capacity assessor or any other relevant witness who could reliably provide an opinion concerning Susana’s capacity. As a result of the plaintiffs’ failure to produce their best evidence in their original responding material, additional evidence was required. The plaintiffs produced two separate supplemental affidavits with attachments in the form of the capacity assessor and occupational therapist reports and an affidavit from the family physician that was not submitted until one week before the motion. All of this resulted in increased costs, including the need for further facta from the defendants.
[38] Finally, the defendants posit that the rates claimed by plaintiffs’ counsel are excessive in the circumstances. Ms. Stewart (year of call 1992) claims a partial indemnity rate of $297 and Ms. DeVuono (year of call 2006) claims a partial indemnity rate of $181.50 per hour. By contrast, the defendants’ counsel, Mr. Drake (year of call 2000) claims a partial indemnity rate of $126 per hour.
[39] In the foregoing circumstances the defendants submit that a reasonable partial indemnity costs award in favour of the plaintiffs falls in the range between $10,000 to $15,000, inclusive of HST and disbursements.
The Plaintiff’s Reply
[40] In their written submissions in reply, the plaintiffs submit:
(a) The rates charged by Ms. Stewart and Ms. DeVuono are consistent with their respective experience and the degree of risk associated with the claims;
(b) The time spent by their solicitors was reasonable;
(c) Ms. Stewart’s attendance at all three hearing days was necessary “in the event oral evidence was necessary” and to assist Ms. DeVuono;
(d) The plaintiffs’ costs outline already includes a reduction of time spent by Ms. Stewart; and
(e) The costs claimed are consistent with the serious nature and complexity of the motion.
Applicable Legal Principles
[41] An order of costs is discretionary. Section 131(1) of the Courts of Justice Act, provides:
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.
[42] 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: see Andersen v. St. Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), at para. 22, leave to appeal refused, 2006 CarswellOnt 7749 (C.A.).
[43] 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.
[44] 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.
[45] 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 CanLII 14579 (ON CA).
[46] 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 CanLII 25577 (ON CA), at para. 4.
Disposition
[47] As the successful party, the plaintiffs enjoy a reasonable expectation that costs will be awarded in their favour and that such an award will be payable within 30 days. There is no compelling reason not to give effect to that expectation in this instance. I was not advised of any offers to settle that may be relevant to the issues of costs. As a result, in the totality of the circumstances, the appropriate scale of costs is partial indemnity, as the plaintiffs request.
[48] Turning to the relevant factors as set out in r. 57.01 of the Rules, I accept that the motion was moderate in its complexity owing to the nature of the medical evidence adduced, the legal issues raised and the “inference” based method of proof offered by the plaintiffs on issues critical to the disposition of the motion.
[49] The conduct of the motion was also complicated by the plaintiffs’ failure to plead material facts related to the limitation period issue prior to the motion being heard As a result, the specifics of the plaintiffs’ position based on s. 7 of the Act was not fully known to the defendants until they received certain portions of the plaintiffs’ responding material. In turn, that necessitated the defendants’ delivery of a further factum addressing the capacity issue.
[50] The conduct of the motion was further complicated and elongated by the plaintiffs’ delivery of two supplemental responding records in which purported expert evidence was offered in an atypical manner. In turn, those materials necessitated a further factum from the defendants with respect to issues of admissibility.
[51] In my view, the foregoing circumstances conclusively answer the plaintiffs’ submission that the defendants’ delivery of multiple facta was conduct that unreasonably lengthened the motion process. In reality, the defendants’ additional facta were the result of the plaintiffs’ failure to plead facts in support of its limitation period position and the piecemeal manner in which it adduced evidence on the motion.
[52] Conversely, the defendants commenced a broad-based challenge to a significant portion of the affidavit and expert evidence adduced by the plaintiffs, which served to dramatically increase the hearing time required for the motion, even after the defendants withdrew certain aspects of their challenge on the first day that the motion was heard. The defendants’ position on admissibility appears to have prompted a similar challenge by the plaintiffs to the evidence adduced by the defendants, although it was much less broad in scope. That, too, added time to the hearing of the motion.
[53] As a result of the additional admissibility issues, a motion that was confirmed and certified by the parties as requiring a “one day” hearing, ultimately consumed three hearing days. The expanded hearing time was largely driven by the admissibility issues raised by the parties. Success on those issues was divided although, on balance, the plaintiffs were more successful.
[54] Turning to a different issue, I do not give effect to the plaintiffs’ submission that the time required for the motion was unreasonably extended by the original relief sought by the defendants. Specifically, the defendants’ notice of motion sought to dismiss the action entirely, which included the minor plaintiff’s claim for bodily injury damages. The defendants conceded that her claim was not barred by the provisions of the Limitations Act, 2002, and the content of their factum did not suggest otherwise. There was really no meaningful time spent in relation to that aspect of the purported motion.
[55] The parties largest dispute relates to the reasonableness and proportionality of the time spent by plaintiffs’ counsel in preparing responding materials and preparing for the hearing of the motion. I remain mindful that the defendants also take issue with the rates claimed by plaintiffs’ counsel. However, in my view, the partial indemnity rates claimed by Ms. Stewart and Ms. DeVuono together with their law clerk/support staff, fall within a range of reasonableness that is associated with the solicitors’ respective experience levels. I see no reason to impute lower hourly rates to them for the purpose of fixing the quantum of costs.
[56] Nonetheless, I do have concerns over the amount of time expended by the plaintiffs’ solicitors in relation to the motion that forms, in part, the basis of the quantum of the plaintiffs’ costs claim. My concerns are founded in issues of proportionality, reasonableness, and duplication.
[57] To be clear, I have no hesitation accepting that the time claimed to have been spent, was in fact spent, by the plaintiffs’ solicitors and their staff. Having reviewed the evidence adduced on the motion in detail, I have a keen sense of the laborious efforts required to review and synthesize the relevant pre and post accident medical documentation and information concerning the plaintiff Susana. I also have a firm understanding of the intricacies of the legal issues engaged on the motion. Even so, I am unable to conclude that the time claimed, which is in excess of 475 hours, accords with a standard of reasonableness and proportionality in all the circumstances of the motion. A non-exhaustive review of aspects of the recorded time of plaintiffs’ counsel for which costs are claimed will illustrate the point.
[58] Ms. Stewart’s original affidavit was lengthy. However, it primarily consisted of a “review” of medical documentation which had previously been obtained and produced in the course of the litigation. It also contained some evidence with respect to her direct interactions and observations of the plaintiff Susana, and certain of Susana’s treatment providers, among other things. Nonetheless, the majority of its content was a review of the voluminous exhibits attached to it. Yet, the plaintiffs’ solicitors and their staff claim 108 hours of time associated with preparation of the affidavit. That is unreasonably excessive in all of the circumstances.
[59] Similarly, the plaintiffs’ solicitors and staff incurred a claimed 27.7 hours to prepare a motion to adjourn the defendants’ summary judgment motion, in circumstances in which such an adjournment does not appear to have been contested. The time claimed in relation to preparation of a motion to adjourn the summary judgment motion is unreasonably excessive.
[60] The plaintiffs’ solicitors and their staff claim a combined 49.8 hours to review additional file documents and prepare a supplemental responding affidavit, in response to the summary judgment motion. The additional responding affidavit material in this instance consists of: a short affidavit in which Ms. Stewart identifies two expert reports; and a short affidavit in which the family physician’s response to correspondence from plaintiffs’ counsel is appended. The time claimed in association with the preparation of those affidavits is unreasonably excessive.
[61] The plaintiffs’ solicitors and their staff claim a combined total of 134.8 hours of time incurred in legal research, review of case law and preparation of the respondents’ factum and brief of authorities. Despite the distinct issues of discoverability and capacity, which were raised by the plaintiffs in the context of the motion, I am not persuaded that the amount of time incurred in relation to these activities was reasonable and proportional in all of the circumstances. My view in that regard is further strengthened by the fact that in their factum and submissions on the motion, the plaintiffs conflated the “plain and obvious” test applicable to the determination of a motion concerning whether a statement of claim discloses a reasonable cause of action with the test applicable to a motion for summary judgment brought pursuant to r. 20 of the Rules.
[62] Finally, the plaintiffs’ solicitors and their staff incurred a combined 17.7 hours to produce a three and one quarter page costs outline. In my view, the time incurred in that regard is unreasonably excessive.
[63] In addition to the foregoing, the quantum of costs claimed by the plaintiffs are partly a function of time incurred with respect to certain activities, which, in the circumstances of this case, are not intuitively the appropriate subject matter of a costs award. Specifically, the plaintiffs’ solicitors and their staff incurred a cumulative total of 21 hours for “interoffice meetings and instructions to law clerk and others” and a further combined total of 23.7 hours on account of correspondence and office conferences with “client/treatment providers”. The plaintiffs have not explained why the time associated with those activities ought reasonably to inform the quantum of costs in this instance. In respect of the latter, and without anything further from the plaintiffs on the point, it would appear that the conferences with “client/ treatment providers” were conducted for the purpose of allowing Ms. Stewart to inform herself qua witness of evidence that was ultimately placed before the court. I am not persuaded that counsel’s activities as a witness in relation to the motion ought to form the subject matter of a costs award in favour of the plaintiffs, particularly as Ms. Stewart was not purporting to offer expert evidence.
[64] Finally, I accept the defendants’ counsel’s position that Ms. Stewart’s attendance for three days at the motion was, in effect, duplication. Although she provided the court with some clarifying comments, the motion was argued by Ms. DeVuono. Indeed, Ms. Stewart’s status as a witness on the motion precluded her from making submissions with respect to same. It was clear through the content of her submissions, that Ms. DeVuono was intimately familiar with the details of both the evidence and the legal issues throughout the motion’s argument. Ms. Stewart’s attendance on the motion was unnecessary. Further, in the absence of a motion or even a request to adduce viva voce evidence from Ms. Stewart, by any party, her continued attendance over the course of a three-day motion cannot be justified on the basis that she “needed” to be available “in the event her oral evidence was required”. Even if she was, her attendance would be related to her role as a witness, not as counsel.
[65] As a result of all of the foregoing factors, I conclude that the quantum of costs claimed by the plaintiffs is not one that is fair, reasonable and proportional in all the circumstances and certainly not one that the defendants ought reasonably to have anticipated in the event that they were unsuccessful on the motion.
[66] In determining the appropriate quantum of costs in this instance, I observe that Ms. DeVuono’s cumulative partial indemnity fee for appearing on all three days of the motion totals approximately $5,000 (including “review/research” and “preparation and attendance”). The affidavit evidence adduced by the plaintiffs was fulsome and dense. However, no cross-examinations or examinations of witnesses on a pending motion were undertaken in this instance. The legal principles applicable to the determination of the motion were readily discernable from the decided cases. The length of the motion was primarily driven by the defendants’ admissibility challenges.
[67] In all of the circumstances, I find that a further $30,000 falls at the upper end of reasonableness for the preparation of responding materials including the plaintiffs’ responding affidavits, factum, book of authorities, costs outline and submissions, and other documentary aids provided to the court, and all other incidental activities associated with the conduct of the motion (including but not limited to research, communication with opposite counsel and other preparation).
[68] As a result of the foregoing, I am satisfied that a costs award in the amount of $35,000 on account of partial indemnity fees, HST in the amount of $4,550 and disbursements in the amount of $1,399.89 represents a fair, reasonable and proportional award of costs in favour of the plaintiffs on a partial indemnity basis. I further find that although at the upper end of the range, that amount represents a costs award that the defendants ought reasonably to have anticipated in the event that they were unsuccessful in their motion for summary judgment.
[69] Accordingly, costs of the summary judgment motion are awarded to the plaintiffs on a partial indemnity basis in the total amount of $40,949.89 payable by the defendants within 30 days.
Original signed by Justice Gregory J. Verbeem
Gregory J. Verbeem
Justice
Released: September 25, 2019
COURT FILE NO.: CV-15-22423
DATE: 20190925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSANA ENNS, by her Litigation Guardian The Office of the Public Guardian and Trustee, and SUSIE ENNS, a minor, by her Litigation Guardian Kelly Bashak
Plaintiffs
– and –
AGANETHA GOERTZEN and CORNELIUS GOERTZEN
Defendants
reasons for the determination of costs arising from the dismissal of the defendants’ motion for summary judgment
Verbeem J.
Released: September 25, 2019