Court File and Parties

COURT FILE NO.: CV-14-359-00 DATE: 2019/12/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew Walker, Plaintiff AND Her Majesty the Queen in Right of Canada, The Commissioner of Corrections, Dr. Aaron Campbell and Dr. Diana Silver Wyatt, Defendants

BEFORE: Justice R. Ryan Bell

COUNSEL: J. Todd Sloan, for the Plaintiff Youri Tessier-Stall, for the Defendants Her Majesty the Queen in Right of Canada and The Commissioner of Corrections Aweis Osman, for the Defendants Dr. Aaron Campbell and Dr. Diana Silver Wyatt

HEARD: In writing

COSTS ENDORSEMENT

[1] The defendants succeeded on their motions for summary judgment. I dismissed the action with costs.

[2] The Crown defendants seek their costs of the motion and the action on a partial indemnity scale in the all inclusive amount of $17,041.64. The physician defendants seek their partial indemnity costs in the amount of $34,249.05.

[3] Mr. Walker’s primary position is that I should order no costs. In the alternative, he submits that I should order “significantly reduced” costs, commensurate with his ability to pay, and to reflect the fact that he had no ability to test the medical evidence adduced by the defendant physicians. In the further alternative, Mr. Walker submits that my determination of costs should be suspended pending the outcome of his appeal of my order granting summary judgment.

[4] The decision on the summary judgment motions resulted in the dismissal of Mr. Walker’s action. This is the appropriate time to fix costs of the motions and the proceeding.

[5] In fixing costs, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant (Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.)).

Mr. Walker’s Ability to Pay

[6] In his costs submissions, counsel states that Mr. Walker, recently released from the federal correctional system, is “old and disabled.” His income is said to be “limited to minimal pension – Old Age Security.” The medical records that were before me on the motions disclose that Mr. Walker’s date of birth is November 14, 1960. There is no dispute that Mr. Walker’s left leg was amputated above the knee in February 2012.

[7] Counsel asserts that Mr. Walker is unable to pay the costs sought by the defendants.

[8] In exercising its discretion in determining costs, “the trial judge must consider all relevant factors and while impecuniosity is certainly one it can’t be the only one” (Jeremiah v. Toronto Police Services Board, 2009 ONCA 671, at para. 13). In Jeremiah, the Court of Appeal for Ontario held that the trial judge had erred in permitting impecuniosity to completely absolve the unsuccessful plaintiff of any cost consequences, because that approach would ignore the objective of cost awards, including indemnification and deterrence.

[9] Counsel for Mr. Walker submits that this is an access to justice issue, and that if the court were to impose costs that are “wholly disproportionate” to an offender’s ability to pay, a “chilling effect” could result, dissuading an offender from exercising their rights to pursue matters before the superior courts. Mr. Walker’s position, in my view, comes close to the approach followed by the trial judge in Jeremiah, subsequently overturned by the Court of Appeal. A situation where litigants without means can ignore the rules with impunity can be avoided if hardship considerations are used to reduce, but not eliminate, liability for costs where appropriate. Such an approach balances the policy reasons for ordering an unsuccessful plaintiff to pay costs against access to justice and hardship considerations (Baldwin v. Daubney (2006), at paras. 48-49).

[10] I have considered all relevant factors in determining costs, including Mr. Walker’s apparent financial hardship.

Quantum of Costs

[11] In his statement of claim, Mr. Walker alleged that the amputation of his left leg above the knee in February 2012 became necessary due to a leg injury that occurred when he was incarcerated and working at Frontenac Institution in June 2008. Mr. Walker claimed damages of $500,000 plus interest against the defendants. I dismissed Mr. Walker’s claim. The evidence before the court on the motions for summary judgment revealed that Mr. Walker was incarcerated elsewhere in June 2008, and there was no record that Mr. Walker suffered a work-related injury in or around June 2008.

[12] At the time the motions for summary judgment were heard in July 2019, Mr. Walker had not served an affidavit of documents, and he had taken no other steps to advance his claim. The defendant physicians served their affidavits of documents in August 2015. The Crown defendants served their list of documents (57 pages) and schedule A productions in September 2016.

[13] In July 2019, prior to preparing their summary judgment motion materials, the defendants offered Mr. Walker the possibility of consenting to a dismissal of his action without costs “in the interest of efficiency and to avoid unnecessary time and expense for the Court and the parties.” Mr. Walker did not take the defendants up on their offer and the motions for summary judgment proceeded.

[14] In response to the summary judgment motions, Mr. Walker did not file any expert evidence regarding the medical care he received from the physician defendants, or attesting to the failure to meet the required standard of care in the circumstances. Indeed, Mr. Walker did not file any responding material on the motions. In his factum, counsel for Mr. Walker acknowledged that the delays in the proceeding were incurred “due to the inexperience and negligence of the Plaintiff’s Solicitor.” Counsel also conceded that “[h]e has not provided an expert opinion up [to] this juncture because he was not aware of that requirement, being inexperienced with civil actions.” Counsel further stated that “[i]n the circumstances…he would agree to pay costs for the motion under a reasonable assessment thereof.” A different position is now advanced with respect to costs.

[15] This was not a complex case, and no novel point of law was involved. The issues were, however, of importance to all parties. Counsel for the Crown defendants were required to expend a considerable amount of time collecting and reviewing documents, and preparing the Crown’s list of documents. Counsel for the physician defendants were required to engage with medical experts.

[16] I find that the hourly rates charged by counsel are reasonable. However, with respect to the physician defendants, I find that too much time was spent dealing with experts, and in relation to documents and document production. There is no merit to the plaintiff’s submission that the costs of the physician defendants should be reduced to account for the fact that Mr. Walker did not cross-examine their experts.

Disposition

[17] I understand the importance of ensuring that litigants of modest financial means have access to the courts. That said, the action was not pursued diligently. The defendants were required to bring their motions for summary judgment. Before bringing their motions, the defendants proposed that Mr. Walker consent to a dismissal of his action without costs so as to avoid further time and expense being incurred. I recognize Mr. Walker’s financial situation. At the same time, some recognition must be given to the defendants as the successful parties on the motion and in the action.

[18] Taking into account all of appropriate factors, I find that a fair and reasonable amount of costs payable to the Crown defendants is $10,000, all inclusive, and a fair and reasonable amount of costs payable to the physician defendants is $15,000, all inclusive. In my view, these awards recognize the principles and objectives of costs awards, including proportionality and deterrence, and appropriately balance access to justice and hardship considerations.

Justice R. Ryan Bell Date: December 3, 2019