DATE: 2019-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LENA SARNO
Plaintiff
– and –
MICHAEL MURPHY
Defendant
Brian Gualazzi, Counsel for the Plaintiff
Richard R.F. Nolin, Counsel for the Defendant
HEARD: November 21, 2019 and written submissions
VARPIO J.
ENDORSEMENT RE COSTS
[1] This was a three-and-a-half-week trial where the plaintiff was awarded $36,000 in damages by the jury. Given that this is less than the vanishing deductible amount, I dismissed the action after the verdict. I entertained both written and oral costs submissions in this matter.
[2] I am mindful of Rules 49 and 57 of the Rules of Civil Procedure, as well as their interpretation in Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.). I am especially mindful that the overall objective of the costs regime is to award a quantum of costs that is fair and reasonable to the unsuccessful party in the particular circumstances, rather than awarding an amount determined by the actual costs incurred by the successful litigant.
[3] Prior to trial, few offers had been exchanged but, of note, the defendant made an offer of $20,000 plus costs and disbursements 30 days prior to the commencement of trial. The defendant beat his offer and argued that he is entitled to substantial indemnity costs on that basis (commencing from the date of the offer). In oral submissions, however, he conceded that, on the balance, he was entitled to partial indemnity costs in an amount of $211,234.92.
[4] The plaintiff argues that the defendant’s conduct was such that the plaintiff ought to be entitled to costs or, in the alternative, to an award of no costs. The plaintiff argues that:
Sections 258.5(1) and 258.6(1) of the Insurance Act place a duty upon insurers to attempt good faith resolutions in motor vehicle litigation;
The defendants suggested in 2018 that mediation take place, scheduled same, and then had to postpone. A second mediation date had to be abandoned when the defendant did not confirm same;
The defendant did not negotiate around the suggested resolution number of the pretrial judge; and
The defendant thus failed to pursue his obligations under ss. 258.5(1) and 258.6(1) of the Insurance Act.
[5] With respect to the defendant’s bill of costs, the plaintiff submits that the number of hours to prepare for and attend at a one-day discovery (in the amount of 38.6 hours) is excessive as is 329.5 hours of trial preparation (divided by two counsel and a law clerk) .
[6] Upon receipt of written submissions, I asked counsel to attend to discuss whether the conduct of defence counsel unnecessarily lengthened the trial. This matter was set as a two-week jury trial. Given scheduling constraints in the District of Algoma, I wanted to ensure that a reasonable timetable was adhered to and, accordingly, convened a trial scheduling meeting prior to the selection of the jury. Issues were discussed including the length of cross-examinations of the key witnesses - in particular the plaintiff. This became a crucial issue given the fact that four medical experts were due to fly in from Toronto and that these experts only had certain specific days of availability. I was assured that the matter would proceed on time.
[7] I was also made aware at that meeting that the defendant had brought a motion 30 days prior to trial to secure a court order requiring the production of the plaintiff’s employment records. The records arrived from the employer on the eve of trial and the parties required a day to review same. Accordingly, the jury was picked on a Monday and the trial started on a Wednesday.
[8] The plaintiff (the first witness) began testifying on Wednesday and was cross-examined. She broke down crying in the afternoon and the trial was adjourned for the day. Cross-examination continued all of Thursday which caused the expert witnesses to be rescheduled. Once this occurred, a chain reaction commenced whereby certain time constraints (which were flagged to counsel at the trial management meeting) came into force which in turn caused the trial to extend to three weeks of evidence. It then turned out that the defendant’s video investigator could not testify until the end of the third week of trial.
[9] Upon review of the entirety of the trial, it is now clear to me that two problems occurred:
The defendant ought to have sought the consent production order at least 60 days prior to the commencement of trial in order to ensure timely compliance; and
The defendant’s cross-examination of the plaintiff exceeded the length anticipated at the trial management meeting by a considerable margin. This was compounded when a couple of hours were lost due to the plaintiff’s crying.
[10] In and of themselves, these two factors are not problematic. Both plaintiff and defence counsel worked together to establish a reasonable schedule for witnesses. They are to be commended for same. Unfortunately, the late production of documents coupled with the lengthy cross-examination of the plaintiff threw the timetable completely out of orientation. None of these factors are nefarious, constitute bad lawyering or bad faith on the part of defendant’s counsel. It is just that these factors, working together, lengthened the trial unnecessarily and the plaintiff ought not bear the brunt of the added costs. Put another way, this was a two-week trial that became a three-and-a-half week trial as a result of unexpectedly lengthy cross-examination, unnecessarily late production, and the incumbent impact upon witness scheduling. The plaintiff is not therefore responsible for the last one-and-a-half weeks of said trial.
[11] The plaintiff, however, received an offer 30 days prior to the start of trial and she failed to beat that offer. She should therefore pay an elevated cost tariff for the first two weeks of trial and for preparation leading up to trial.
[12] With respect to the hours docketed by the defendants, I do not take particular exception with same except to say that they appear to be somewhat high for what was a fairly simple trial. Chronic pain issues require experts, but the testimony of the doctors (both treating and litigation experts) in this case was not particularly protracted or convoluted. This phenomenon was exemplified by the fact that, in their closing submissions to the jury, both counsel emphasized the main issue: Do you believe the plaintiff? Accordingly, this was not a particularly complex case and I therefore agree with the plaintiff that the hours docketed were somewhat elevated.
[13] With respect to the failed mediation, I find that the defendant owed the plaintiff some reasonable explanation for the second cancelled mediation. This conduct lengthened the proceedings without any good reason and the plaintiffs ought not pay for any costs associated with the failed mediation.
[14] In Jamieson v. Kapashesit 2019 ONSC 2831 (Ont. S.C.), the trial lasted three-and-a-half weeks and the conduct of the defendant was found to have unnecessarily lengthened the case by approximately 4 days. In the totality of those circumstances, Gordon J. made a costs award of $175,000 all inclusive.
[15] Therefore, when I consider all the aforementioned factors and applicable caselaw, it occurs to me that the plaintiff would reasonably expect to pay $150,000 all inclusive at the end of trial. Accordingly, I hereby order that amount in costs.
[16] I note that the plaintiff is a woman of limited means and that her litigation insurance will only cover $93,000 of this award. To suggest that the plaintiff can easily come up with this money ignores the obvious. Therefore, in the exercise of my discretion and given the principle of fairness, the plaintiff has 12 months to pay.
Varpio J.
Released: December 3, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LENA SARNO
- and -
MICHAEL MURPHY
endorsement re costs
Varpio J.
Released: December 3, 2019