Court File and Parties

Court File No.: CV-14-495804 Date: 2019-12-02 Superior Court of Justice - Ontario

Re: Themistocles Kyriakopoulos, Plaintiff And: Gregory Lafontaine, Defendant

Before: Kimmel J.

Counsel: Themistocles Kyriakopoulos, self-represented Sean Dewart and Brett Hughes, for the Defendant

Heard: Appearances on March 11, 12, 13, 14 and 22, 2019 (written cost submissions of the defendant received August 20, 2019 and written cost submissions of the plaintiff received October 31, 2019)

Costs Endorsement

[1] My Reasons for Decision following the trial of this matter were released on July 24, 2019, ONSC 4416. The action was dismissed.

[2] I afforded the parties an opportunity to make written submissions as to costs pursuant to a schedule that allowed for initial, responding and reply submissions, the exchange of which was expected to be completed by October 11, 2019 at the latest. Having only received the costs submissions of the defendant dated August 20, 2019, I wrote to the parties on October 10, 2019 asking for confirmation that no further submissions had been exchanged between them. On October 14, 2019 the plaintiff sought an extension in time for his responding costs submissions that was granted upon the consent of the defendant. The responding submissions were received on October 31, 2019 and on November 19, 2019 the defendant confirmed that there would be no reply submissions.

[3] I commend both parties for their reasonable and focussed submissions on costs.

[4] The defendant seeks an award of partial indemnity costs of this action in the all-inclusive amount of $80,111.33.

[5] The main objections that have been raised by the plaintiff are directed to the lack of detail in some of the entries in the costs outline that was provided by the defendant and to concerns about the duplication of lawyer time for some of the tasks undertaken. The larger areas of duplication that the plaintiff challenges are the time spent by Mr. Hughes, the fourth lawyer at the defendant’s law firm to become involved in this matter, for his initial review of the file (said to amount to 33.5 hours) and for as much as possibly 18 hours of duplication in trial preparation. In total, by my calculation, this alleged duplication, even if it existed, would translate into approximately $5,000.00 in fees at the partial indemnity rate of Mr. Hughes.

[6] Given that the trial was adjourned at the request of the plaintiff when it was first scheduled to begin, it is not unreasonable that a new lawyer may have become involved and had to get up to speed, nor is it unreasonable that almost a year later the lawyers would have to re-prepare for the trial, especially given that there were expert reports to contend with that had not been part of the original trial preparation.

[7] The plaintiff properly acknowledges the defendant’s entitlement to costs as the successful party and recognizes that the costs being claimed in this case are based on the already reduced rates charged to LawPro for the defence of this matter.

[8] I accept that the plaintiff who was at the trial a self-represented litigant, may not have known exactly what to expect in terms of the actual dollars and cents of an adverse costs award. However, looking objectively at the total hours claimed for the work done in general terms, the amount of time that was spend by counsel for the defendant does not appear to be unreasonable. That said, costs are discretionary, and given the questions that have been raised by the plaintiff about some of the cost entries, I have decided to make a modest reduction to the amount of the partial indemnity fees claimed by the defendant, of $5,000.00 (with a corresponding reduction in the applicable HST on those fees for a total reduction of $5,650.00).

[9] Having considered the submissions received, and the principles to be applied in the exercise of my discretion under s. 131 of the Courts of Justice Act R.S.O. 1990, c. C-43, and Rule 57.01, I am awarding the defendant his partial indemnity costs in the amount of $74,461.33, comprised of fees of $41,235.05 (inclusive of HST) and disbursements of $33,226.28 (inclusive of HST).

[10] I consider these costs to be fair and reasonable in all the circumstances of the case, and having regard to the Rule 57 factors to be considered in the exercise of my discretion, in particular:

a. The defendant was wholly successful in defeating all claims made by the plaintiff in the action, which were also found by me to have been out of time and barred by the Limitations Act 2002. S.O. 2002, c.24;

b. The plaintiff was seeking $3 million in damages from the defendant, but failed to prove any damages at trial and none were awarded to him;

c. The proceeding had added layers of complexity due to the plaintiff’s failure to provide a proper expert report and resulting need to consider whether and how to import principles applicable to criminal appeals and the ineffective assistance of counsel into a civil claim for negligence;

d. This was a claim of professional negligence against the defendant in his handling of the plaintiff’s criminal appeal, and included allegations such as: (i) he ignored his appeal factum; (ii) made a rambling and largely incoherent presentation at the appeal; (iii) failed to raise ineffective assistance of counsel as a ground for appeal; (iv) failed to deal with recently released decisions from the Supreme Court in a reply factum; and (v) deliberately sabotaged the appeal in an effort to secure a brief for a motion for leave to the Supreme Court. The defendant’s professional reputation, a matter of significant importance to him, was at stake in the action;

e. The plaintiff’s conduct tended to lengthen the duration of the proceeding in that he made multiple adjournment requests, did not follow the directions of the pre-trial judge concerning potential adjournment requests, and failed to engage and present a qualified expert to testify at trial on the standard of care in support of the alleged claim of negligence, despite having been given ample opportunity to do so;

f. The plaintiff was also presented with the opportunity at both pre-trial conferences (in March of 2018 and February of 2019) to avoid the trial by agreeing to a without costs dismissal, which he rejected;

g. The defendant was represented by experienced counsel who worked at significantly reduced LawPro rates. The total number of hours that they docketed and have charged are reasonable, particularly having regard to the fact that they had to prepare twice for the trial (because of an adjournment requested by the plaintiff), and they reasonably allocated the time and responsibilities for tasks between the senior and more junior counsel;

h. The disbursements claimed appear to be reasonable, including the charges for the defendant’s expert Michael Lacy, who was properly engaged to prepare a report and was available to testify at the trial until he was released at the request of the plaintiff following my ruling that the plaintiff’s expert Mr. Cooper was not qualified; and

i. It is objectively reasonable for a plaintiff to expect to pay costs in the range of $75,000.00 if he or she takes a case accusing a professional of negligence to trial and loses.

[11] I am satisfied that, in the exercise of my discretion in the circumstances of this case, that it is fair and reasonable for the plaintiff to pay the defendant his partial indemnity costs of $74,461.33 (inclusive of fees, disbursements and HST) and I fix the costs in that amount and I order them payable forthwith (within 30 days, unless otherwise agreed by the parties).

Kimmel J.

Date: December 2, 2019