COURT FILE NO.: CV-14-117930

DATE: 20191125 CORRECTED DATE: 20191126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Estate of Millicent Agola Owala, by her Estate Administrator Vivian Awuor Owala, Vivian Awuor Owala, Andy Ochieng Owala, Michelle Atieno Owala, Prisca Akelo Ogweno, by her Litigation Guardian Vivian Awuor Owala, Lawrence Otila Agweno, by his Litigation Guardian, Vivian Awuor Owala, James Odero Ogwendo, by his Litigation Guardian, Vivian Awuor Owala and Felix Ogweno Ogweno, by his Litigation Guardian, Vivian Awuor Owala

Plaintiffs

– and –

Southlake Regional Health Centre, Dr. David Makary, Dr. Parham Davoudpour, Dr. Lorne Goldman, Dr. Philip Buckler, Lisa Laramee, Nicole (Nikki) Watss, Abigael (Abby) Boakye, Christine Miltenburg, Laura Rimmey or Laura Rimmer, Timothy Lawrie, Dr. John Doe, Dr. Jane Doe, John Doe (RN), Jane Doe (RN), John Doe, Jane Doe, Regional Municipality of York, Stephen Pallett, Dr. Florence Moriello, Dr. Babak Kachoei and Dr. Moshen Kouchakan

Defendants

Miguna Miguna for the Plaintiffs

Paul-Erik Veel and Chloe Boubalos for the defendants, Dr. David Makary, Dr. Parham Davoudpour and Dr. Philip Buckler

Gordon Slemko for Southlake Regional Health Centre, Lisa Laramee, Nicole Watts, Abigael Boakye and Chistine Miltenburg

HEARD: Cost Submissions in Writing

Corrected Decision: The text of the original Ruling was corrected on November 26, 2019 and the description of the correction is appended.

ruling on Costs

boswell j.

[1] On September 12, 2019 I heard three summary judgment motions brought by seven defendant physicians in this and two companion medical negligence claims. All motions were granted in a ruling dated October 23, 2019 and reported as 2019 ONSC 5930. I invited the parties to make written submissions on costs.

[2] For the reasons that follow, I fix the moving parties’ costs at $68,694.86 but stay their enforcement pending the disposition of the balance of this litigation, whether through judgment or resolution.

THE PARTIES

The Plaintiffs

[3] Millicent Agola Owalo died in the emergency department of Southlake Hospital on October 17, 2013. The cause of death was aortic dissection. She was forty years old.

[4] Ms. Owala left behind three teenaged children: Vivian, Andy and Michelle Owala. All are now adults. She is also survived by three brothers: Lawrence, James and Felix Ogweno, all of whom reside in Kenya, the country of her birth. Ms. Owala’s children and brothers are the plaintiffs in this proceeding. Her mother, Prisca Akelo Ogweno, was also a plaintiff, however she died in June 2019.

[5] Each of the plaintiffs is impecunious.

[6] Vivian Owala earns less than $10,000 per year providing childcare. James earns minimum wage working for a grocery store.

[7] Lawrence and James Ogweno earn $78 and $100 per month respectively.

[8] Michelle Owala and Felix Ogweno have no income or assets. Michelle Owala is a second-year student at the University of Ottawa.

[9] The Owala children have struggled since their mother’s untimely death. Their home was lost to power of sale proceedings half a year later, rendering them homeless.

[10] Suffice it to say that none of the plaintiffs are in any position to pay any award of costs.

The Physician Defendants

[11] The seven moving defendants are all physicians who were involved in Ms. Owala’s treatment on the date of her death, or in the decade prior to it. They include: Dr. Sood (a family physician); Dr. Pike (an endocrinologist); Dr. Levinson (a cardiologist); Dr. Joshi (a Southlake emergency room physician); Dr. Lam (a family physician); Dr. Otto (a walk-in clinic physician); and Dr. Buckler (a radiologist).

The Additional Defendants

[12] I have, to this point, referred only to the summary judgment motions of seven physician defendants. The plaintiffs in fact brought a counter motion seeking three aspects of relief. First, an order consolidating three separate actions that they had commenced seeking identical relief but against three different groupings of defendants. Second, an order for production of original documentation. Third, leave to deliver a jury notice in relation to the consolidated proceeding.

[13] The counter motion engaged the interests of all of the defendants and not just the seven who had moved for summary judgment.

[14] The additional defendants include Southlake Hospital, three nurses – Ms. Laramee, Ms. Watts and Ms. Boakye, and a technician, Ms. Miltenburg.

THE PARTIES’ POSITIONS

The Physicians

[15] The moving defendants were successful on their motions. They seek $78,639.56 for their partial indemnity fees, disbursements and HST. The costs claimed reflect not only the motions, but the underlying actions as well.

[16] The defendants have each filed a Bill of Costs reflecting work done in connection with their individual cases. The costs claimed do not generally include work that was common to all seven of them. For instance, they do not include the costs incurred for conducting the examination for discovery of the plaintiffs.

[17] The fees associated with the summary judgment motion have been divided between all seven defendants equally. The partial indemnity costs claimed for the motions are $26,894.70 plus HST, for a total of $30,391.01. The balance of costs claimed – $48,242.55 – relates to the work performed by counsel on the underlying actions. Of that sum, roughly $12,000 relates to the accounts of experts retained by the defendants to respond to the claims against them (including HST).

[18] The defendants served Rule 49 offers to settle by which each offered to settle the proceedings against him by way of a dismissal without costs.

The Additional Defendants

[19] The additional defendants claim success on the counter motion. They seek their partial indemnity costs of $4,910.98.

The Plaintiffs

[20] The plaintiffs seek to avoid a costs order altogether. Their counsel submitted three distinct grounds that he says support the exercise of the court’s discretion to award no costs to any party. They are:

(a) The Bills of Costs submitted by the physicians are duplicitous[^1], highly exaggerated and unconscionably high. The court should award no costs as a sanction for the improper amounts sought;

(b) There was divided success. The plaintiffs were compelled to bring their procedural motion because of the failure or refusal of the defendants to consent to the relief sought; and,

(c) The impecuniosity of the plaintiffs and the tragic circumstances of Ms. Owala’s death are exceptional circumstances that justify a decision to not award costs notwithstanding the defendant physicians’ success on their summary judgment motions.

THE GOVERNING PRINCIPLES

[21] The court’s discretion to award costs is grounded in section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and is guided by Rule 57.01 of the Rules of Civil Procedure.

[22] Rule 57.01 lists a number of factors for the court to consider in the assessment of costs which include, but are not limited to the following:

(a) the complexity of the proceeding;

(b) the importance of the issues;

(c) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(d) whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution;

(e) the principle of indemnity; and,

(f) the concept of proportionality, which includes at least two factors:

i. the amount claimed and the amount recovered in the proceeding; and,

ii. 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.

[23] The weight to be applied to any of the enumerated, or other, factors in any given assessment may vary. It is, however, now well-settled that the overarching principles to be observed in the exercise of the court’s discretion to fix costs are fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).

[24] By convention, costs will be awarded to a successful party and will generally be measured on a partial indemnity basis: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.).

[25] As part of the determination of what is fair, proportionate and reasonable in a given case, the court may take into account, in addition to the factors referred to in Rule 57.01, the ability of the losing party to pay. In other words, a demonstrated impecuniosity is a relevant factor. See Walsh v. 1124660 Ontario Limited, 2007 27588 (S.C.J.) and the cases cited therein.

DISCUSSION

[26] I begin with the observation that the plaintiffs’ counter motion took up only a small fraction of the time involved in the preparation, argument and ruling in relation to the matters addressed before me on September 12, 2019. There was divided success. There was never any doubt that the claims – or what was left of them – would be consolidated or ordered heard together in some fashion. There was little doubt, or dispute, that the plaintiffs would be entitled to a jury trial if that is how they wished to proceed.

[27] There was a legitimate dispute regarding productions, but it became, for the most part, a moot point, given the results of the summary judgment motions.

[28] In my view, it is appropriate to award no costs in relation to the counter motion.

[29] The summary judgment motions are another matter. They were very much disputed. They involved a good deal of preparation and a reasonably in-depth argument. Obviously a great deal was riding on the outcomes.

[30] The moving defendant physicians were successful. They are entitled to their costs on a partial indemnity scale, subject to two factors:

(a) An examination as to whether the amounts claimed are fair, proportionate and reasonable; and,

(b) Whether the court should reduce the amount awarded, or decline to award any costs at all, based on the impecuniosity of the plaintiffs and the tragic circumstances giving rise to this case.

Quantum

[31] The amounts claimed by the plaintiffs are in excess of $6 million. The claims proceeded through pleadings, discovery – both documentary and oral – and pre-trial conferences. Expert witnesses had to be retained and consulted by each defendant. And, of course, three summary judgment motions were initiated and argued. It is hard to argue that $78,000 in partial indemnity costs is not proportionate in the circumstances.

[32] Having reviewed the Bills of Costs filed by the defendant physicians, I do not agree that they are duplicative, excessive or unconscionable. In relation to all of the steps taken prior to the motions for summary judgment, they reflect figures well within the range I would expect to see in an action of this magnitude and nature. A reasonable plaintiff would, in my view, expect to be exposed to a costs order in the range of what is sought by each of the moving defendants.

[33] The actual fees portion of the Bills of Costs reflect the following claims:

• Dr. Levinson - $10, 384.50

• Dr. Pike - $7,057.20

• Dr. Sood - $9,159.00

• Dr. Lam - $9,948.30

• Dr. Joshi - $5,806.50

• Dr. Otto - $6,197.10

• Dr. Buckler - $7,193.10

[34] A significant element of the fees sought by each of the moving defendants relates to their 1/7th portion of the costs claimed for the summary judgment motions. The total claimed, on a partial indemnity basis is, as I indicated, $26,894.70. The defendants have calculated partial indemnity fees at a rate of 60% of their total fees incurred. In other words, the actual fees incurred in relation to the summary judgment motions would have been roughly $45,000 to net out at the amount claimed on a partial indemnity basis.

[35] In my view, the amount claimed, while proportionate to the amounts at stake in the proceedings, is somewhat high and out of proportion to the complexity and time reasonably involved.

[36] Counsel to the moving defendants described the motion as “complex”. While the factual record is dense, the legal issues were not complex. The test to be applied on summary judgment motions is now well-settled. Moreover, the basis for each of the motions was the same: that the plaintiffs had failed to produce expert evidence in support of their claims against the moving physicians. The law is reasonably clear that the issues of standard of care, breach and causation can not be made out in a medical negligence claim without expert evidence, save in very clear cases.

[37] The motions were not long in argument – roughly half a day. As motions go generally, they were more involved and complex than many. But I would not, by any means, situate them at the high end of the complexity spectrum.

[38] This was undoubtedly an important step in the litigation for all parties involved. And it was hard fought.

[39] In my view, a reasonable partial indemnity fee for the motions, as a discrete event, is $15,000, plus HST, for a total of $16,950. This equates to a figure $9,944.70 less than that claimed.

[40] I would therefore assess the value of the defendants’ partial indemnity costs at $68,694.86, all inclusive.

[41] Whether those assessed costs should be further reduced, or not awarded at all, based on the impecuniosity of the plaintiffs is the next question.

Impecuniosity

[42] I am satisfied that the lives of the plaintiffs – particularly Ms. Owala’s children – were tragically and profoundly altered on October 17, 2013.

[43] I accept that all of the plaintiffs are genuinely impecunious at present.

[44] I also accept that their impecuniosity explains their failure to obtain experts’ reports with respect to each of the named physician defendants. Experts’ reports are very expensive. They could not afford them. That is a difficult reality.

[45] Difficult issues have to be addressed when impecunious parties litigate and lose.

[46] On the one hand, the defendants were put to great expense responding to lawsuits that they won. Moreover, they offered to have the claims against them dismissed without costs. The plaintiffs insisted on proceeding, even though they knew that they could not afford the experts’ reports that were likely necessary for them to make out their claims.

[47] Parties should not generally be entitled to litigate with impunity. Litigation is, on one fundamental level, an exercise in risk management. Litigants must always weigh and balance the costs and benefits of initiating and continuing with any claim.

[48] The defendants are, by convention at least, entitled to be awarded their partial indemnity costs. They might well ask why such an award – otherwise entirely justified – ought to be refused to them simply because the plaintiffs cannot afford to pay them (at present). The defendants continue to have a claim against Southlake, the attending emergency room physician and the emergency room nurses on duty at the time of Ms. Owala’s death. It is conceivable that they could recover a sizeable judgment. Ought they to be excused on the basis of a present impecuniosity when they arguably have a valuable claim outstanding?

[49] Indeed, the circumstances of this case can readily be distinguished from those present in the Walsh decision and the cases cited therein. In Walsh the plaintiff’s claim had been outright dismissed against all defendants. Here, the plaintiffs’ claim has been dismissed against some of the defendants, but continues against others. When the action is finally concluded, the plaintiffs may well be considerably less impecunious than they presently are.

[50] On the other hand, the plaintiffs are young adults. Their mother/sister died tragically young. Their lives have been upended. They have no present means of paying a costs award of $68,000 and one can only speculate about what, if any, award they may receive from a jury in relation to the balance of their claims.

[51] Absent a significant damage award, the plaintiffs will have no ability to pay off a $68,000 costs award within the foreseeable future. When I say “plaintiffs” I am referring principally to Ms. Owala’s surviving children. I think it highly unlikely that the defendants are going to pursue recovery against those plaintiffs who are residents of Kenya and who, collectively, earn less than $200 per month.

[52] But Ms. Owala’s children, who have obviously suffered, and who continue to suffer, will be faced with what, to them, will be an insurmountable debt. Theoretically they could face bankruptcy proceedings. At the very least they will be significantly impaired in their ability to obtain credit, with a substantial judgment against them.

[53] I note that I am in no position to conclude that the claims the plaintiffs advanced against the moving physicians were frivolous. I concluded only that the plaintiffs are unable to make out their claims without expert evidence.

[54] In circumstances such as this, is justice really served by imposing what will be a crushing indebtedness on these youthful plaintiffs? In my view, the answer is a provisional no. My view may change should the plaintiffs recover judgment on any part of their remaining claims.

[55] Having considered and balanced the issues as I have outlined them, I make the following order. The moving defendants’ costs of the summary judgment motions and the underlying actions are fixed at $68,694.86. That figure may be allocated between them as they agree. If they cannot agree, I will fix their costs individually.

[56] Having said that, I order that enforcement of the costs award is stayed. The defendants may, on motion before me, seek to have the stay lifted once the balance of the plaintiffs’ claims are disposed of, whether through adjudication or resolution.

Boswell J.

Corrected: November 26, 2019

November 26, 2019 – Corrections:

1. The neutral citation on page 1 now reads: Owala Estate v. Southlake Regional Health Centre, 2019 ONSC 6772

2. Para. 50, second sentence now reads: Their mother/sister died tragically young.

[^1]: The plaintiffs’ counsel used the adjective “duplicitous” when he described the defendants’ Bills of Costs. He may well have meant duplicitous, which means deceitful, but I think it more likely he intended to use the adjective, “duplicative”. In other words, I have interpreted his submission to be that the seven separate Bills of Costs – one for each moving defendant – contain duplications.