COURT FILE NO.: 16-56338 DATE: 20191224
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Anna Przyk Plaintiff
- and -
Hamilton Retirement Group Ltd., carrying on business under the name and style The Court at Rushdale Defendant
Counsel: Jeffrey Crannie, for the Plaintiff Susannah Margison and Andrea Dias, for the Defendant
RULING ON COSTS
I: INTRODUCTION
[1] On August 16, 2015 the plaintiff, an elderly resident at the defendant retirement home experienced a modest slip and fall on a sidewalk between one exit of the home and the main entrance. There were injuries. There was some variation between what the plaintiff attested to and what the manager of the home attested to as what the plaintiff related to her as to what had happened. Photographs of the site were taken: by a friend of the plaintiff, by Crawford Adjusters year later, and by the experts who testified for both sides.
[2] A Statement of Claim filed on Ms. Przyk’s behalf set out allegations of negligence on the part of the home, based on the common law concepts of negligence and the statutory basis set out in the Occupiers Liability Act. The usual boilerplate claim for a million dollars was sought for damages, such amounts are not unusual as counsel have no idea how far the sequela of the injuries will evolve.
[3] Counsel for the plaintiff was throughout the course of the litigation open to resolve the matter. By contrast, adjusters and counsel for the home, members of the in-house legal department of Aviva, resolutely put forth a negative proposal of no damages nor costs. The consistency of these positions remained so despite efforts of Master McGraw October 24th, 2019 and indeed the suggestions of this court to discuss resolution at the outset of the jury trial.
[4] To their credit by June, 2018 the two sides did agree that damages would be fixed at $75,000. Therefore, the trial would be confined to the issue of liability.
[5] The case for the plaintiff was well-presented. It emerged that the because of the “heaving” of the concrete slabs which comprised the sidewalk that drill holes had been drilled through numerous slabs through which filler would be injected to move the particular slab into, presumably a more level position relative to the neighbouring slabs. The expert for the plaintiff, Mr. Shawn Jay, discovered several elevation differences between the concrete slabs, some of which would have been a cause for concern for a municipal sidewalk. The very filler holes he opined could have contributed to the plaintiff’s footwear (sandals) catching or experiencing unforeseen traction.
[6] Experts for the defendant home, Ms. Sinclair and Dr. Parkinson, testified as to the nature of the human gait and the unlikelihood given the dimensions of the filling holes and the sandals that unforeseen traction could have occurred.
[7] Both sides were handicapped by the fact that their experts had examined the sidewalk within the last year and no one can state with any certainty what the state of the sidewalk was back in August of 2015.
[8] The plaintiff’s recollection of the event was not graphic, but who no matter their age recalls with clarity the state of the surface on which they tread, especially since they have gone on a known route to return an empty coffee cup?
[9] The plaintiff presented as a straightforward person, not complex, nor prone to either exaggeration or flights of fancy. She was an elderly person, apparently gregarious, living her day.
[10] There is always a risk in litigation that no matter how sympathetic your plight is or your circumstances that a jury will not find for the plaintiff. It is a risk that is oft mentioned by those who seek to encourage parties to talk “resolution”. That being said, courageous advocates embrace the risks and push on. In this case the jury found there was no negligence on the part of the home and hence the plaintiff would not be entitled to the agreed upon damages.
II. ISSUES
[11] Applying the principles enumerated in Rule 57.01: (1) Should the defendant receive any costs? And (2), if so, in what amount?
III. APPLICABLE LAW
i. General Principles
[12] Referring as did Justice S. Gomery in Greenough v. Maple Ridge Media Inc., 2018 ONSC 4429 to the normative or default approach which was summarized by Justice Cumming in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at paragraph 5 it is stated:
In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
[13] Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding are in the discretion of the court, and the court can decide by whom and to what extent the costs should be paid. As with any discretion, it should be exercised fairly and reasonably.
[14] Rule 57.01 sets out the general principles to be applied. The preamble to the rule invites a court to consider the results of any written offer.
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[15] The factors listed in this rule are to be “fleshed out” as it were in the particular case.
[16] Counsel for the plaintiff did not challenge the notion that the use of “in-house counsel” does not preclude a party from pursuing costs. Indeed s. 36 of the Solicitors Act R.S.O 1990, c.S. 15 provides that: “Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party.”
[17] The overarching objective of determining costs is as stated by Justice R. Armstrong of Boucher v. Public Accountants Council of the Province of Ontario 2004 CanLII 14579 (ON CA), 2004, O.J. No. 2634 at paragraph 24: “to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” [underline mine]
[18] This “stepping back” as it were is not a “mechanical exercise”. It is not simply a question of calculating hourly rates multiplied by hours (ref. Ibid para. 26)
[19] Justice Armstrong opined that: “The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objectives of access to justice.” (ref. Ibid para 37)
IV) THE POSITION OF THE PARTIES
[20] Counsel for the plaintiff asserts that generally the defence played “hardball” in that Aviva, its adjusters and counsel, never made any effort to resolve this matter, aside from communications and offers to the effect that the plaintiff walk away. Essentially that meant the plaintiff had no choice but to push on to trial.
[21] The defence position in this case, counsel asserts is a well-known tactic by Aviva… “the threshold or defensible program.” Given Aviva’s 15 percent market share of insurance in Ontario, counsel believes that this approach effectively shuts out modest claims. The economic risk is high for the plaintiff and lucrative for the insurer.
[22] Reference is made to the job hiring advertisements of Aviva (reference Tab 16 of the Plaintiff’s Submissions) in which one aspect of the job description is to “work closely with and attend at mediations with our legal partners or delegated authority program files to ensure a consistent approach and message is delivered. The successful candidate will be heavily involved with Aviva’s various defensible programs, and drive a consistent message with judges, mediators, and counsel surrounding our litigation files.” (underlining mine)
[23] The specific points by counsel with respect to the quantum of costs sought:
It was not necessary to have two counsel to represent the defence in this matter;
The rates for in-house counsel appears to be high (presumably on the premise that such counsel have no overhead concerns);
The experts’ fees appear to be excessive; and
The hours expended were excessive and unfairly included such expenses as travel time.
[24] Counsel relies on paragraph 10(b) “the importance of the issue” of Rule 57.01 in stating that this particular case related to “elder care” which demographically is a burgeoning area of the law.
[25] Counsel for Aviva argues that although they do not keep dockets per se, their bill of costs is a conservative estimate based on reasonable hours. In fact, they are only seeking “partial indemnity”.
[26] Ms. Margison stated that this was her first trial as lead counsel and Ms. Dias’s first trial as counsel. The division of responsibility and the conduct of the case was appropriate and practical. Indeed, one of the two could have taken over if the other one was incapacitated.
[27] The two experts, Ms. Sinclair and Dr. Parkinson, were necessary in that they both testified with respect to separate issues.
V: ANALYSIS
[28] As mentioned above, demographically, eldercare is a burgeoning area in our society. Coincidental with such growth is a need for the law of negligence to apply in new situations involving our elderly.
[29] Both sides treated this particular case seriously. Engineers and a biomechanical engineer were witnesses. This was not a case solely dependent on upon the evidence of the parties.
[30] Modest complainants are always at the mercy of the economics of litigation. This is not a lucrative area for a personal litigator. It is not unexpected that a plaintiff such as Anna Przyk could end up against an insurer such as Aviva, an insurer of retirement homes with a head office in Kentucky. This could be characterized as a “David and Goliath” situation. Access to justice could be threatened by the resources of the opposing side.
[31] From reading the employment advertising for Aviva concerning the sending a message to judges, mediators, and counsel, one detects a certain arrogance. Size of the insurance market is not inconsequential. Insurers are answerable to their shareholders. Playing hardball with the modest litigant may indeed be profitable, but that does not mean that the modest litigant should have a field day or that the insurer be vulnerable to frivolous claims.
[32] Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interest of access to justice.
[33] Aviva with its approach is at risk of allegations of playing hardball. In some circumstances that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.
[34] I am of the view that there should be no order as to costs. In other words, these parties should bear their own costs. Given this finding, it is unnecessary to deal with the specific complaints as to the quantum of the cost.
A.C.R. Whitten, J.
Released: December 24, 2019
COURT FILE NO.: 16-56338 DATE: 20191224
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Anna Przyk Plaintiff
- and –
Hamilton Retirement Group Ltd., Defendant
RULING ON COSTS
Released: December 24, 2019