COURT FILE NO.: CV-11-422170

DATE: 2019-12-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TIMORO HUSSEIN AGANEH, on her own behalf and as co-trustee of the estate of KULMIYE HUSSEIN AGANEH; IKRAM ALI SAID; UBAH HUSSEIN AGANEH; ARAFAT HUSSEIN AGANEH by her Litigation Guardian Timoro Hussein, and AMARAN HUSSEIN AGANEH by his Litigation Guardian Timoro Hussein

Plaintiffs

– and –

MENTAL HEALTH CENTRE PENETANGUISHENE CORPORATION now known as Waypoint Centre for Mental Health Care, DR. WILLIAM BRACE, GILBERT P. LESPERANCE; BRYAN S. WARNER, STEVE HOUGH, WILLIAM MOONEY, BERT SOMMERS, JASON EMERY, MIKE DOWNEY, ROBERT WALTON, PETER LEBLANC, JOHN DOE NURSE 1, JOHN DOE NURSE 2, JOHN DOE NURSE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE NURSE MANAGER, JOHN DOE OFFICER IN CHARGE, BILL WARNER and SHAWN KENNEDY

Defendants

Richard Watson, for the Responding Party Plaintiff, the Estate of Kulmiye Hussein Aganeh

Stephen R. Schenke, for the Defendant, Dr. Wayne Brace

Carole Jenkins, for the Defendants Waypoint Mental Health Care (formerly known as Mental Health Care Penetanguishene Corporation), Gilbert P. Lesperance, Bryan S. Warner, Steve Hough, William Mooney, Bert Sommers, Jason Emery, Mike Downey, Robert Walton, Peter Lebanc, Bill Warner and Shawn Kennedy

HEARD: In writing.

ENDORSEMENT ON COSTS

SANFILIPPO J.

Overview

[1] The Defendants brought this Motion for Judgment in accordance with a settlement that they claimed to have reached with five of the six Plaintiffs; Timoro Hussein Aganeh, Ikram Ali Said, Arafat Hussein Aganeh, Amaran Hussein Aganeh, and the Estate of Kulmiye Hussein Aganeh; whom I refer to as the “Settling Plaintiffs”. On the initial return of this motion on January 15, 2018, Glustein J. ordered that the settlement reached by the Defendants with the four individual Settling Plaintiffs was enforceable but left the issue of enforcement of the settlement against the Estate of Kulmiye Hussein Aganeh (the “Estate”) for subsequent determination. Glustein J. reserved the issue of costs of that hearing to the motion Judge hearing the issue of enforcement of the settlement against the Estate.

[2] On the second stage of this motion on July 8, 2019, I determined that the Defendants established an entitlement to judgment with the Estate in accordance with the settlement that they had reached: Aganeh v. Mental Health Centre Penetanguishene Corporation, 2019 ONSC 5599. This left the issue of costs of this motion, including both the hearings on January 15, 2018 and on July 8, 2019.

[3] By paragraphs 99-100 of my Endorsement, I encouraged the parties to discuss and agree on the issue of costs, failing which they were to make written submissions on costs in accordance with the process that I set out. The moving party Defendants, successful on the motion, delivered their written submissions on costs. The responding party, the Plaintiff Estate, submitted that it had no comments regarding the cost submissions of the Defendants.

[4] I will provide my determination of the issue of costs through this endorsement.

I. THE DEFENDANTS’ POSITION

[5] There are two groups of moving party Defendants seeking costs: Mental Health Centre Penetanguishene Corporation and certain persons identified as being employed therein at material times, whom I will refer to collectively as the “Health Centre Defendants”, and; Dr. Wayne Brace. The motion was argued by the lawyer for Dr. Brace on behalf of all Defendants. The lawyer for the Health Care Defendants had provided affidavit evidence in support of the motion. Dr. Brace’s counsel similarly filed the written submissions on costs on behalf of all Defendants.

[6] The Defendants seek costs on a partial indemnity scale. Regarding quantification, the Defendants filed Bills of Costs on a partial indemnity scale as follows:

(a) Dr. Brace seeks costs of $13,685.32, all inclusive, on the motion returned before Glustein J. on January 15, 2018, which I will refer to as the “2018 Costs”. This is comprised of 42.4 hours of lawyers’ time ranging from $125 per hour for junior counsel to $200 per hour for intermediate counsel to $250 per hour for senior counsel, plus 18.8 hours of law student time at an hourly rate of $100 per hour, plus disbursements of $582.97 plus applicable taxes.

(b) The Health Centre Defendants seek costs of $15,334.09, all inclusive, as 2018 Costs. This is comprised of 54.3 hours of senior lawyer’s time at a rate of $200 per hour, plus 5.7 hours of student and law clerk time at hourly rates of $60-$90 per hour, plus disbursements of $737.60 plus applicable taxes.

(c) Dr. Brace seeks costs of $17,897.50, all inclusive, on the motion returned before me on July 8, 2019, which I will refer to as the “2019 Costs”. This is comprised of 53.3 hours of senior lawyer’s time at a rate of $250 per hour, plus 3.8 hours of law clerk time at $190 per hour and 11.6 hours of law student time at $135 per hour, plus disbursements of $225.50 and applicable taxes.

(d) The Health Centre Defendants seek costs of $20,621.29, all inclusive, as 2019 Costs. This is comprised of 78.8 hours of senior lawyer’s time at a rate of $200 per hour, plus 21.4 hours of student and law clerk time at hourly rates of $60-$90 per hour, plus disbursements of $737.60 plus applicable taxes.

[7] The total amount of costs claimed by Dr. Brace, on a partial indemnity basis for both 2018 Costs and 2019 Costs, is $31,582.82, all inclusive. The total amount of costs claimed by the Health Care Defendants, on a partial indemnity basis for both 2018 Costs and 2019 Costs, is $35,955.38, all inclusive.

[8] The Defendants divided their cost demand between 2018 Costs and 2019 Costs purposefully because they seek the 2018 Costs from Ubah Aganeh personally and they seek the 2019 Costs from the Estate.

[9] The Defendants seek the 2018 Costs from Ubah Aganeh personally on the submission that her vigorous objection to the implementation of the settlement by the Aganeh family members on January 15, 2018 caused that hearing to be prolonged when the Aganeh family members were otherwise prepared to consent to the enforcement of the settlement, as against them. The Defendants seek the 2019 Costs from the Estate on the basis that it was the only responding party to their motion for enforcement of the settlement against the Estate.

II. ANALYSIS

[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that “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.” Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and applicable jurisprudence, provides a list of factors and considerations for the Court to consider in the exercise of its discretion.

A. Entitlement

[11] The general principle is that, absent special circumstances, “costs follow the event”: Yelda v. Vu, 2013 ONSC 5903, at para. 11; Bell Canada v. Olympia & York Developments Ltd., 1994 CanLII 239 (ON CA), 1994 ONCA 239, 17 O.R. (3d) 135.

[12] The Defendants were successful in their motion for judgment in accordance with the terms of the settlement that they reached with the Settling Plaintiffs. The Estate has not established any special circumstances that would support a deviation from the principle that the successful party should receive an award of costs. Accordingly, I conclude that the Defendants are entitled to an award of costs.

[13] The only responding party to the motion argued on July 8, 2019 was the Estate. As such, the Defendants are entitled to an award of costs pertinent to the July 8, 2019 hearing from the Estate.

[14] All of the Settling Plaintiffs were responding parties to the January 15, 2018 Motion. The four individual Aganeh Family Members; Timoro Hussein Aganeh, Ikram Ali Said, Arafat Hussein Aganeh, and Amaran Hussein Aganeh; consented to Judgment in accordance with the terms of settlement. The moving party Defendants do not seek costs against them.

[15] Ubah Aganeh objected to the implementation of the settlement on January 15, 2018. The Defendants submitted that Ubah Aganeh’s objection was on her own behalf, and not on behalf of the Estate in her capacity as co-Estate Trustee and that her objection pertained broadly to the implementation of the settlement against all Settling Plaintiffs and not just the Estate. On these grounds, the Defendants submitted that she ought to be personally liable for the 2018 Costs. I do not accept this submission. I will explain why.

[16] As Glustein J. found, Ubah Aganeh did not have standing to involve herself in the approval of a settlement to which she was not a party, applying the principle set out in Gariepy v. Shell Oil Co., 2002 CanLII 12911 (Ont. S.C.), at para. 40. Ubah Aganeh was not a Settling Plaintiff such that no relief was sought against her in this motion. She was only entitled to make submissions on behalf of the Estate in her capacity as co-Estate Trustee, and only in relation to the issue of enforcement of the settlement against the Estate.

[17] The Defendants contended that their claim for costs against Ubah Aganeh has precedent in the decision by Dunphy J. on September 18, 2018 to order that Ubah Aganeh pay costs to the Estate consequent upon her unsuccessful Application to remove her sister, Timoro Aganeh, as co-Estate Trustee. I do not accept that the matter before Dunphy J., and his resultant cost determination, is applicable to this cost determination. In the Application before Dunphy J., Ubah Aganeh advanced a position on her own behalf. In the hearing before Glustein J. in the first stage of this motion, Ubah Aganeh was only entitled to make submissions on behalf of the Estate.

[18] Last, the position taken by Ubah Aganeh as co-Estate Trustee in the first stage of this motion on January 15, 2018 was adopted by Timoro Aganeh, the other co-Estate Trustee, in the second stage of this motion on July 8, 2019. Accordingly, the Estate’s resistance to Judgment through enforcement of the settlement was consistent in both of the stages of the hearing of this motion.

[19] I am satisfied that the Defendants have established an entitlement of costs of this motion, including both hearings of January 15, 2018 and July 8, 2019, payable by the Estate.

B. Quantification of Costs

[20] In assessing the quantification of costs to be awarded to the Defendants, I have taken into consideration the factors set out in Rule r. 57.01(1), as follows:

(a) Expectations of the Unsuccessful Party (Rule 57.01(1)(0.b)): The unsuccessful party, the Estate, was aware, through its Estate Trustees, that a cost award of $18,500 had been awarded by Dunphy J. in the Application of September 18, 2018. From this, the Estate could reasonably expect that the cost consequences of this motion, which was larger in scale and in hearing time, could exceed this level;

(b) Complexity of the Application (Rule 57.01(1)(c)): The motion was complex in the way that it was advanced, with multiple Motion Records and Factums, multiple cross-examinations, and argument over the course of two hearing days;

(c) Importance of the Issues (Rule 57.01(1)(d)): The issues raised by this motion were important to both the moving party Defendants and the Estate. The parties had conflicting views regarding whether they had agreed to settlement, and whether the settlement should be enforced. The Defendants’ interest in finality was important to them, just as the Estate’s interest in re-opening the issues between the parties was important to the Estate;

(d) Conduct of any Party that Lengthened the Proceeding (Rule 57.01(1)(e)): The responding party Estate filed three volumes of materials, containing 54 tabs of documents, that were objected to by the moving party Defendants and not referred to or sought to be relied on by the Estate at the hearing of this motion. This contributed to unnecessary costs;

(e) Staffing of the Motion (Rule 57.01(1)(0.a)): The hourly rates charged by the Defendants are consistent with partial indemnity fees. The number of hours billed are not “manifestly unreasonable”, in that they are not “clearly excessive” and the matter was not “over-lawyered”: Basdeo v. University Health Network, [2002] O.J. No. 597 (Ont. S.C.), at para. 7. However, the number of hours billed on behalf of the Health Centre Defendants is greater than the hours billed on behalf of Dr. Brace, and I know of no reason why this should be the case. I am mindful, as well, that the Health Care Defendants did not argue the motion, their lawyer having sworn affidavit evidence in support, and therefore did not have to prepare for argument. I thereby conclude that the amount submitted by the Health Care Defendants should be reduced, and should result in a lower quantification of costs than the costs submitted by Dr. Brace.

[21] My assessment of these factors is part of achieving the fundamental objective of quantification of costs which is to determine an amount that is fair, reasonable, and proportionate. The Court of Appeal stressed the objectives of fairness, reasonableness, and proportionality in cost assessment in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). This assessment cannot start and end with arithmetic computation of the legal fees incurred, as was emphasized by the Court of Appeal in Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (Ont. C.A.), at para. 4: “[i]n our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

[22] In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, Nordheimer J.A. stated that “proportionality and reasonableness are touchstone considerations to be applied in fixing the amount of costs.” This statement was made in direct reference to Rule 24(12) of the Family Law Rules, O. Reg. 114/99, which specifically refers to these considerations in Rule 24(12)(a). However, the objectives of proportionality and reasonableness are equally applicable in this civil matter, on the basis of Rules 1.04(1) and (1.1), Rule 57.01(1)(a), and Rule 20.06. It is not enough that the cost quantification be reflective of docketed time and expenses. It must be fair, reasonable, and proportionate.

[23] Here, the amount allocated to the Estate in settlement was $105,000. The costs associated with enforcing a settlement in this amount must be proportionate to the amount in issue. To achieve proportionality, I conclude that the Defendants’ combined cost submission of $67,538.20 must be reduced to an amount that I find is fair and reasonable for the unsuccessful party to pay.

[24] After analysis of all elements of Rule 57.01(1) and the principles underlying the exercise of my discretion under s. 131 of the Courts of Justice Act, and considering the objective that the quantification of costs be fair, reasonable, and proportionate, I conclude that the Defendant Dr. Brace shall receive an award of costs payable by the Estate in the amount of $25,000, all inclusive, and that the Health Care Centre Defendants shall receive an award of costs payable by the Estate in the amount of $20,000, all inclusive. I reach these conclusions on my finding that a total cost award to the Defendants against the Estate in the amount of $45,000, all inclusive, on several records and over the course of two hearing days, is fair, reasonable, and proportionate.

III. DISPOSITION

[25] I order that the Estate pay costs to the Defendant Dr. Wayne Brace in the amount of $25,000, all inclusive, and I order that the Estate pay costs to the Health Care Centre Defendants in the amount of $20,000, all inclusive.

Sanfilippo J.

Released: December 18, 2019