Court File and Parties
COURT FILE NO.: CV-09-392886 DATE: 20200406
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LORENA CHEESMAN, RUBEN REINOSO and YVONNE REINOSO AND: CREDIT VALLEY HOSPITAL, DR. MICHAEL MILLER, DR. NORMAN EPSTEIN, DR. ALICIA SARABIA, DR. LORNE SMALL, DR. DEEPA SONI, DR. ROBERT DAILY, KATHLEEN DYKSTRA, BARBARA McGOVERN, ANNA-LIZA TEODORO, BILLY DANIEL YAMILEE JULIEN, ROSE BECKFORD and JOHN and JANE DOE (representing a number of physicians, health care professionals and/or hospital employees involved in the care and treatment of LORENA CHEESMAN on December 24 and December 25, 2007 at CREDIT VALLEY HOSPITAL
BEFORE: Koehnen J.
COUNSEL: Ron Bohm, Amani Oakley, Neil Oakley and David Lee for the Plaintiff Eli D. Mogil, Atrisha S. Lewis, Natalie V. Kolos, for the Defendants, Dr. Sarabia, Dr. Small and Dr. Soni; Nina Bombier, Chris Kinnear-Hunter, for the Defendant, Dr. Robert Daily
HEARD: March 6, 8, 18, 19, 20, 21, 22, 26, 27, 28, 29, April 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 23, 24, 25, 26, 29, 30, May 1, 2, 6, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, June 3, 4, 5, 6, 11, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, July 2, 3, and 4, 2019
COSTS ENDORSEMENT
1In December 2007, the plaintiff Lorena Cheesman (now known as Lorena Reinoso) developed orbital cellulitis, an infection of the inner orbit of the eye. After her condition deteriorated with out-patient treatment, she went to the emergency room at Credit Valley Hospital at approximately 3:00 AM on December 24, 2007. She emerged 6 months later with half of both feet and nine of ten fingers partially or entirely amputated. The amputations were required because of complications that developed from her infection. The infection also caused a variety of organ failures which have resulted in long term complications for Ms. Reinoso.
2After a 70 day jury trial the jury found that:
(i) The defendant Doctors Sarabia and Soni were jointly and severally responsible for 72% of the plaintiff’s damages. Credit Valley Hospital and its nurses were jointly and severally liable for 28% of the plaintiff’s damages.
(ii) The defendant Dr. Daily had fallen short of the standard of care but did not cause or contribute to Ms. Reinoso’s injuries.
(iii) The defendant Dr. Small was not negligent.
3Shortly before trial, damages were agreed at $3,750,000.
4At about the time damages were agreed, the plaintiff settled with the hospital and its nurses pursuant to a Perringer Agreement under which the hospital and nurses paid the plaintiff and all-inclusive amount of $1,100,000. For ease of reference I will refer to the Hospital and the nurses collectively as the “Nurses” in these reasons.
5As a result of the agreement on damages, the finding of liability against Doctors Soni and Sarabia led to a judgment of $2,700,000 plus interest against them.
6Ms. Reinoso now claims legal fees of $2,638,366.66 plus disbursements of $662,602.56 for a total of a total of $3,309,969.22 in costs and disbursements against Doctors Sarabia and Soni.
7The plaintiff arrives at the amount of $2,638,366.66 for legal costs by taking her lawyers’ recorded time for the entire proceeding which amounts to $5,276,733.32 and applying a 50% discount to that sum.
8Doctors Sarabia and Soni submit that the appropriate cost award is between $986,777.45 and $1,218,834.57 plus $256,626.02 for disbursements.
9For the reasons set out below I fix the plaintiff’s fees at $2,404,765 and fix their disbursements at $628,387 for a total combined amount of $3,033,152 including HST.
I. Cost Factors Under Rule 57
10Rule 57 sets out factors for the court to consider when exercising its discretion in awarding costs including:
(a) The importance of the issues;
(b) The complexity of the proceedings;
(c) The experience of counsel and rates charged;
(d) Amounts claimed and recovered;
(e) Settlement offers;
(f) The apportionment of liability;
(g) Conduct tending to shorten or lengthen the trial unnecessarily; and
(h) The amount an unsuccessful party could reasonably expect to pay.
(a) Importance of the Issues
11There is no doubt that the issues were of great importance to Ms. Reinoso. The injuries she suffered resulted in the amputation of half of both feet and the complete or partial amputation of nine fingers. In addition, she suffered significant organ failure which has required ongoing medical attention. The consequences of her injuries have materially affected her ability to earn a living and have limited her enjoyment of life. The significance of her injuries is reflected in the agreed damages figure of $3,750,000.
(b) Complexity of the Proceedings
12This was a complex proceeding. The trial took 70 days. It involved extensive expert evidence in the fields of infectious disease, emergency department medicine and ophthalmology. Each of the three specialties in turn gave rise to a number of complex scientific and medical issues.
13Different defendants offered competing theories of causation which required increased effort by the plaintiff to address. The trial was hard-fought. There were many objections on both sides that increased the length of the trial. Significant issues arose with respect to expert reports, jury questions and causation; see for example: Cheesman et al. v. Credit Valley Hospital et al., 2019 ONSC 1907; Cheesman et al. v. Credit Valley Hospital et al., 2019 ONSC 5783; Cheesman et al. v. Credit Valley Hospital et al., 2019 ONSC 4996.
14The case gave rise to 16 examinations for discovery, multiple motions, the preparation and review of more than 24 expert reports, over 2000 pages of medical records, two mediations and two pretrial conferences.
(c) Experience of Counsel and Rates Charged
15The plaintiff had two law firms acting for her.
16Oakley & Oakley acted for the plaintiff from the outset. Amani Oakley was called to the bar in 1998. Neil Oakley was called to the bar in 2001. Both Mr. and Mrs. Oakley have extensive scientific background which was of assistance in a case that turned largely on scientific issues.
17Blackburn Lawyers was brought in at some point before trial to assist with the trial itself. They had three legal professionals active on the file. Ronald Bohm was called in 1986. He has extensive trial experience and expertise in medical malpractice cases. David Lee was called in 2017 and acted as Mr.Bohm’s associate, Ms. Catherine Smith is a law clerk with 28 years’ experience.
(d) Amounts Claimed and Recovered
18As is evident from the numbers set out above, the jury’s apportionment of liability to the Nurses (28%) is quite similar to the amount allocated to the Nurses in the settlement between them (29.3%). The plaintiff submits that the trial therefore occurred because the defendant Doctors Sarabia and Soni refused to accept the liability that the jury ultimately found them to have.
(e) Settlement Offers
19Before trial, the plaintiff served a settlement offer on the defendant physicians to settle the action by paying
“…the plaintiffs the global damages and interest amount of $3,650,000 (inclusive of the amount contributed by the Settling Defendants)…”
The reference to the “Settling Defendants” refers to the settlement amount paid by the Nurses.
20The plaintiff submits that the settlement offer demonstrates the overall reasonableness of her costs claim because the settlement offer would entitle her to solicitor client costs for the entire trial. On the face of it, the settlement offer would have required the physicians to pay $2,550,000 as opposed to the $2,700,000 plus costs that they are now required to pay.
21Although I agree with the plaintiff’s math, I do not agree that the settlement offer entitles her to solicitor client costs for the trial.
22A settlement offer attracts positive cost consequences because, among other things, it forces an opposing party to an election. It can either pay a set amount or go to trial in the hopes of obtaining a more favourable result.
23Here, however, the offer did not tell the defendant physicians what amount they had to pay to settle. They did not know whether they would be required to pay $3,650,000 or $1.00, although it was a fairly safe assumption that the sum required by the offer was somewhere in between. The “in between,” however, covers a broad spectrum.
24This issue was within the power of the plaintiff to control. She could have made a settlement offer for a specific, articulated amount but chose not to. In the circumstances, I do not think it appropriate for the settlement offer to attract solicitor and client costs for the trial.
(f) Apportionment of liability
25The defendants underscore that the costs the plaintiff claims include costs she incurred in prosecuting the action against the Nurses with whom she had settled, the costs of prosecuting the action against Doctors Miller and Epstein who were released from the proceeding and the costs of pursuing the action against Doctors Daily and Small who were found by the jury to have no liability.
26Counsel for Doctors Sarabia and Soni submits that a fair allocation of pretrial costs should be 50% to the Nurses, 25% to Doctors Daily, Small, Miller and Epstein and 25% to the unsuccessful defendants.
27While I agree that some sort of conceptual discount should be applied to the plaintiff’s fees for the costs incurred for the claims against Doctors Small, Miller and Epstein, I do not think it would be fair to limit the plaintiff to only 25% of her pretrial costs, nor do I think it would be appropriate to back out the costs the plaintiff incurred for the claim against Dr. Daily or the Nurses.
28I have reviewed the dockets of Ms. Oakley’s firm for references to Doctors Miller and Epstein. I counted 50.7 hours directly referable to Dr. Miller and 32.7 hours for Dr. Epstein. To be on the conservative side, I applied Ms. Oakley’s rates to those hours. Ms. Oakley’s billing rate is the highest in her firm. The time spent on Dr. Miller and Dr. Epstein came to a value of $50,457. Adding HST would bring the amount to $57,016.41. That amount should be deducted from the plaintiff’s costs.
29Time before trial referable to Dr. Small came to 26.2 hours or $15,851. Dr. Small was on the stand for three days at trial. To back that time out I added up the actual billing rates of all of the plaintiff’s service providers taken from page 9 of their cost submissions. That came to $2300 per hour. I assumed a 10 hour day for time of $23,000 referable to Dr. Small. I multiplied that by the three days that Dr. Small testified which comes to trial time of $69,000. Totaling the pretrial and trial time referable to Dr. Small comes to $84,851. Adding HST brings the amount to $95,881.63. That amount should be deducted from the plaintiff’s costs.
30In addition, to be on the conservative side, some further reduction should be made to take into account trial preparation time for Dr. Small. While I have tried to track that time by reviewing the dockets of Ms. Oakley's firm, the amount of time I arrived at in that review seems quite low ($15,851). In addition, I do not have the dockets of Mr. Bohm’s firm so could not determine what time his firm may have spent on Dr. Small. While Dr. small was a relatively minor player among the defendants if I am assuming trial preparation of 1 to 2 days in assessing a fair fee, I should also discount "unnecessary" work by a similar amount. Given that he was a relatively minor player amongst the defendants I have ascribed one day of preparation for each day of trial time. I calculate the trial preparation time at $23,000 per day as set out in paragraph 29 above times 3 days times1.13 for HST for a total reduction of $77,970 for trial preparation time.
31Although the jury did not find Dr. Daily liable for any damages, it is not appropriate to discount the plaintiff’s costs for the time spent pursuing the action against him. Dr. Daily was brought into the action as a result of a defence strategy adopted by Dr. Soni. She took the position that she was no longer responsible for Ms. Reinoso’s care after 11:30 AM on December 24, 2007 because that is when Dr. Daily became the Most Responsible Physician.
32Even though Dr. Daily may technically have become her Most Responsible Physician at approximately 11:30 AM, Dr. Soni knew that Dr. Daily would not be able to see Ms. Reinoso until late in the day. Ms. Reinoso remained in the emergency department until well into the evening on December 24. Dr. Soni remained on shift in the emergency department until 3:30 PM on December 24. There was considerable debate at trial about the extent to which Dr. Soni remained responsible for Ms. Reinoso’s care when Ms. Reinoso was physically in the emergency department and when Dr. Soni knew that Dr. Daily would not be able to see her until after the end of Dr. Soni’s shift. The thrust of the evidence at trial was that the technical transfer of Most Responsible Physician status from Dr. Soni to Dr. Daily did not relieve Dr. Soni of responsibility for Ms. Reinoso while Dr. Soni remained in the emergency department and Ms. Reinoso remained unseen by Dr. Daily.
33I cannot accept the defendants’ position with respect to costs attributable to the Nurses either. Although the jury found the Nurses to be only 28% liable, the defendants would have me allocate 50% of the plaintiff’s pretrial costs to the claim against them. If any attribution of costs against the Nurses is appropriate, I cannot see any basis for it exceeding 28%.
34I do not, however, think any of the plaintiff’s costs should be reduced because of time spent pursuing the case against the Nurses.
35Although the plaintiff brought the Nurses into the action as defendants, the defendant physicians would have done so if Ms. Reinoso had not. Each of the defendant physicians asserted a cross-claim against the Nurses. They maintained those cross-claims to the end of trial.
36The physicians at all times had an economic interest in attributing liability to the Nurses. The practical effect on costs of the plaintiff claiming against the Nurses is that she bore costs that the physicians would have borne. The physicians should not now enjoy a cost advantage because the plaintiff incurred the costs the physicians would otherwise have had to assume.
(g) Conduct Tending to Shorten or Lengthen the Trial Unnecessarily
37The trial of this action was projected to last 30 days. It lasted but 70 days. The excess time had many causes. The plaintiff materially underestimated the time required for examinations. There were a much larger number of objections than would reasonably be anticipated (more from the defendants than the plaintiff). The defence experts testified or tried to testify beyond the scope of their reports on several occasions which led to many objections. Those objections took much longer to argue than might reasonably be anticipated. Ms. Oakley took more time than was reasonably necessary for some of the examinations or cross examinations. In hindsight, I probably gave all parties more time to argue objections than I should have. There is ample blame to go around for almost all involved, including me. I say almost all because I exclude Dr. Daily's counsel from those who prolonged the trial. Ms. Bombier and Mr. Kinnear-Hunter used the least amount of court time and used their time to the greatest effect.
38That said, it is easy with the benefit of hindsight, to characterize a step as something that unnecessarily prolonged the trial. Objections are by necessity made in the heat of the moment without time for reflection. Trial strategies are of necessity pursued without knowing how they will turn out. Nevertheless, Ms. Oakley did take steps that unduly lengthened the trial for which there should be some reduction to the fees she seeks. The defendants ask that the plaintiff’s recovery for trial time be decreased by 16.5 days. In my view, that would be overly punitive.
39The simple fact that some of Ms. Oakley’s cross examinations took much longer than the examinations in chief, as the defendants note, does not indicate that the cross-examination was excessively long. An examination in chief of a physician in a medical malpractice case is considerably easier than a cross-examination. Defendant physicians can appeal to a jury with a fairly high level explanation of what they did and why they did it. It takes much more time to dissect those explanations on cross-examination to demonstrate why what the defendant did fell short of the standard of care.
40In addition, some witnesses are more talkative than others. Personal characteristics of individual witnesses will inevitably either lengthen or shorten the time required to examine or cross-examine.
41All of that said, examining Dr. Kumar in chief for six days was excessive and was due to the style that Ms. Oakley adopted during her examination.
42The plaintiff submits that six days was required with Dr. Kumar because he testified out of order and was the plaintiff’s first witness. I do not accept that explanation. The original schedule contemplated that the plaintiff’s first witness would be Dr. Gill. He was scheduled to testify for one day in both chief and cross-examination. He ended up testifying for three days even though he was not the first witness.
43The six days of Dr. Kumar’s examination in chief was not used efficiently. A full day was spent on qualifications when qualifications were not in dispute. While I understand that counsel may nevertheless wish to lead an expert through some of his qualifications, especially in a jury trial, spending a full day doing so when the original schedule contemplated two days for both examination in chief and cross-examination, is wasteful. In addition, large parts of the examination in chief were unnecessarily duplicative. I would attribute two days to excessive examination of Dr. Kumar and would reduce the plaintiff’s recoverable trial time accordingly.
44I would apply a similar two day cost reduction to the cross-examination of Dr. Sarabia. Dr. Sarabia testified in chief for half a day. She was cross-examined for five days.
45I intervened several times at trial and encouraged Ms. Oakley to accept the adage that less is more. While I recognize that someone with a scientific background is likely to follow the scientific method which identifies all possible options and pursues each option to the end, that is not an appropriate approach to take in cross-examination.
46I underscore that this was not a case of pursuing cross examinations where counsel had an important point to elicit from a witness. On the contrary Ms. Oakley on occasion pursued speculative theories with Dr. Sarabia that she had no way of locking the witness into. There was no admission by Dr. Sarabia on discovery, no article written by her that Ms. Oakley could use to commit Dr. Sarabia to the position Ms. Oakley wanted to advance. While it might be worthwhile to test a speculative theory from time to time to see if it gets any traction; if things do not look promising very early on in the exercise, it is time to move on.
(h) Amount an Unsuccessful Party Could Reasonably Expect to Pay
47This was the factor in respect of which the defendants launched their strongest attacks on the plaintiff’s costs claim. Plaintiff’s counsel say they have already taken into account the defendants’ expectations and the various deductions the defendants urge upon me by applying a 50% discount to the time they recorded. The defendants say that the starting point of $5.2 million in recorded time is flawed.
48It is well accepted that, although the actual time spent is a relevant factor, the objective of setting costs is not to calculate the number of hours multiplied by hourly rates but to fix costs in an amount that is fair and reasonable in the circumstances of the case: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). At the same time, however, courts should not be too eager to second-guess the amount of time a matter takes without specific complaints about tasks that were either unnecessary or that were the subject of an excessive amount of time.
49This is especially so in a case that went on for 10 years as this one did. A case that takes 10 years to get to trial is inevitably marked by periods of inactivity. When the file becomes active again time is spent re-familiarizing oneself with the issues. Neither side made submissions about why the case took 10 years to get to trial. In those circumstances I can only assume there were reasons that made it appropriate or, at least, that there are no reasons for which to penalize the plaintiff for additional time required because the case took so long to get to trial.
50The defendants make two fundamental submissions about the costs the plaintiffs incurred. First, that the plaintiff used an unreasonable number of legal professionals. Second that the plaintiff’s lawyers recorded an unreasonable number of hours.
(i) Number of Legal Professionals the Plaintiff Employed
51Defence counsel object to the fact that, in addition to Ms. Oakley and Mr. Bohm, the plaintiff had three non-examining legal professionals attending at every day of the trial. The three allegedly excess lawyers were Mr. Oakley (with an actual rate of $527 per hour) Mr. Lee (with an actual rate of $325) and Ms. Smith (with an actual rate of $185).
52I do not think this is a valid criticism. The plaintiff had four lawyers and one law clerk attending trial for a total team of five.
53The defendant physicians also had two separate law firms acting for them. Lenczner Slaght acted for Dr. Daily; McCarthy Tetrault acted for Doctors Sarabia, Small and Soni. Between the two firms, the defendants had five lawyers and one articling student attend trial almost every day for a total team of six.
54The defendants justify the size of their team by noting that all defence team members had a speaking role at trial. That puts form over substance. The fact that someone has a short speaking role in a 70 day trial does not necessarily justify their attendance throughout the trial and is not a legitimate argument to disqualify the attendance of someone without a speaking role. It was readily apparent throughout the trial that all legal professionals on both sides fulfilled essential roles. As noted, this was a complex, hard-fought case. It is not the type of case that could have been conducted with two examining lawyers and one support person. Given that the defendants between them had a team of six legal professionals at trial almost every day, it is difficult to accept the argument that they expected the plaintiff to use something fewer than five legal professionals.
(ii) Number of Hours Recorded
55The defendants submit that the number of hours the plaintiff’s lawyers recorded is excessive. They note that plaintiff’s counsel recorded 620.5 work days, or more than two full years of working exclusively on this case, before the trial began.
56To remedy this, defence counsel asks that I reduce the hours of all plaintiff’s counsel. By way of example they would decrease Ms. Oakley’s hours from 2300 to 575 and Mr. Bohm’s from 650 to 162.
57I do not believe that is a reasonable allocation. At the start of trial, counsel projected the trial would take 30 days. Defence counsel’s reduction of hours would have Ms. Oakley spend 57 days (based on a 10 hour day) preparing for a 30 day trial. Mr. Bohm would be given 16 days. Those are material under estimations of what it takes to bring prepare for a 30 day trial, let alone a 70 day trial.
58A conservative estimate of trial preparation for a case of this degree of complexity would be between one and two days of preparation for each day of trial. In other words, counsel could be expected to spend between at least 30 and 60 days preparing solely for the 30 day trial. It takes at least as much time to prepare an examination or cross-examination as it does to conduct it. Walking a witness through an examination in chief or cross-examination also takes at least as much time as the actual examination at trial. If anything, this case warranted more preparation time than these estimates suggest because of the technical and scientific nature of the evidence. Moreover, these estimates do not take into account any of the work done in the ten years preceding trial such as examinations for discovery, review of over 2000 pages of medical records, mediations, pretrial motions, pretrial conferences, working with experts reports and so on.
59The defendants raise three specific objections to the plaintiff’s trial costs: preparation of a glossary, their daily rate and weekend work.
60Glossary: Plaintiff’s counsel spent approximately 100 hours preparing and arguing about a glossary of medical terms. The glossary was never finalized or used at trial because counsel could not agree on definitions. Although counsel began making submissions on the terms of the glossary at the very outset of trial, time did not permit completion of the argument once witnesses began testifying. While I did not fully appreciate the nature of the defence objections and their significance at the time, it became clear after a few days of evidence that Ms. Oakley was proposing more than mere dictionary definitions. Instead, she proposed compilations of information from various unidentified sources that included facts or criteria that were of help to Ms. Oakley’s case which included matters of opinion, argument or went otherwise beyond a simple definition of a medical term. The plaintiff should not be entitled to recover for work on the glossary.
61Daily Rate: Defence counsel object to the plaintiff’s calculation of a daily rate for trial. The rate the plaintiff uses would effectively calculate the daily rate of each service provider based on a 10 hour day at their full indemnity rates or something close to it. The defendants note that if one takes the inflation-adjusted grid rate for a day rate at trial and converts that into an hourly rate based on a 10 hour day, then the plaintiff is claiming approximately 13.5 to 15 hours for each day of trial. I agree that a mathematical calculation of a partial indemnity rate (or something close to it) times 15 hours for each of 70 trial days is not an appropriate basis on which to calculate trial costs. At the same time, this was a trial during which one could readily expect the plaintiff’s lawyers to be working much longer than a 10 hour day for significant portions of the trial. By way of example, there were several instances where I had counsel argue issues of law before me in the evenings after the jury was dismissed to avoid losing jury time.
62To some extent this last argument is a bit of a red herring. Plaintiff’s counsel have, in effect, reduced their hours in half for purposes of their costs demand. The counsel fee they claim is actually less than defence counsel would give them. For example, Mr. Bohm’s actual daily rate is $6,500. Given that he has divided it in half for purposes of his cost submission, the amount requested is only $3,250. The defence, in their submissions would award Mr. Bohm $4,437 per day.
63Weekend Work: The defendants object to the plaintiff claiming 26 days of weekend work during the trial. Defence counsel submits that all 26 days of weekend work should be excluded citing Weaver v. Casey's Welding Service Ltd., 2007 CanLII 6937 (ON SC) at para. 30. I do not find Weaver determinative of the issue.
64Just as an assessment of costs is not based on the mechanical multiplication of hours times hourly rate, nor should it be based on the mechanical application of dogmatic rules about what time is compensable or not. Each case must be determined on its facts. Weaver was a simple wrongful dismissal action that resulted in a judgment of approximately $70,000. The main issue was notice. Principles of proportionality would make a black letter rule against compensating weekend work more appropriate in Weaver than it is for the case before me.
65There is no doubt that a case like Ms. Reinoso’s requires weekend work during the trial. By way of example, the numerous instances where I permitted the defence experts to testify beyond their reports would have forced the plaintiff’s counsel to deal with their experts either on weekends or late evenings well beyond the 10 hours the defendants ascribe per day of trial.
66The dogmatic application of a rule to the effect that weekend work is not compensable in any sort of case would mean that a plaintiff who hires a not particularly busy lawyer who could complete all trial preparation before the trial began would be compensated for the lawyer’s work. The plaintiff who retains a busy lawyer who may spend time on weekends during the course of trial preparing witnesses or examinations instead of completing that work before trial, would not be compensated. That is an unjust result and is inconsistent with the overall principle governing cost determinations which is to fix costs in an amount that is fair and reasonable in the circumstances of the case: see Boucher, supra.
67That said, while I accept the proposition that the plaintiff in a case like this should be compensated for weekend work, the plaintiff is claiming compensation for between 13 and 15 hours of work for each of the 26 weekend days during the trial for each of Ms. Oakley, Mr. Oakley and Mr. Bohm plus 12 days of weekend time for Mr. Lee. I have more difficulty with the proposition that the defendants had a reasonable expectation of compensating the plaintiff to that extent. Some sort of reduction for weekend work should be applied.
II. Determining a Fair and Reasonable Amount
68Having reviewed the challenges to specific groups of time entries and conceptual reductions to the plaintiff’s costs claim, I am still left with the larger question of what a fair and reasonable amount is for costs. The defendants drive home the point strongly and repeatedly that the plaintiff’s claim is simply disproportionate to the amount recovered.
69I propose to approach the question of a fair and reasonable amount by considering what the outcome would be under different approaches. It is useful to consider: (i) how these approaches compare to the plaintiff’s request for $2,638,360 in costs or to the defendants’ suggested range of $986,777-$1,218,834; (ii) whether the approaches reveal any consistent themes; and (iii) whether in light of those findings one approach is preferable to another.
(a) Option One
70The first approach I take is to start with the recorded time of the plaintiff’s lawyers and apply the various reductions to it that I have set out earlier in these reasons. That approach is as follows:
| ITEM | AMOUNT |
|---|---|
| Hourly fees per plaintiff’s submission | $5,206,733 |
| Time spent on Doctors Miller and Epstein | -$57,060 |
| Time spent on Dr. Small | -$95,881 |
| Trial preparation for Dr. Small | -$77,970 |
| Time spent on glossary Calculated at 100 hours x $605 (hourly rate of Ms. Oakley) x 1.13 to include HST |
-$78,050 |
| Two days of examination in chief of Dr. Kumar Calculated at the daily counsel fee for all of the plaintiff’s time recorders noted on page 10 of plaintiff’s costs submissions ($19,660) x 1.13 to include HST ($22,216) x 2 days |
-$44,432 |
| Two days of cross-examination of Dr. Sarabia | -$44,432 |
| Weekend work $19,960 x 26 x 1.13 |
-$577,616 |
| Revised billed time | $4,213,674 |
| Times .6 to convert to a partial indemnity rate (the defendants’ suggested multiplier to arrive at partial indemnity costs) |
$2,528,204 |
71Under this option, I have applied a multiplier of .6 to convert the plaintiff’s revised billed time to a partial indemnity rate rather than following the approach of the plaintiff which was to apply a 50% discount to the revised rates because applying the 50% discount to the revised billed time would be double counting the deductions. The plaintiffs applied the 50% discount to their full billed time to take into account the sorts of adjustments that I have already made in arriving at the revised billed time figure.
72The approach set out above is biased in favour of the defendants. By way of example it deducts from the plaintiff’s bill of costs all 26 weekend working days for all five time recorders. This is unrealistically harsh. First, because, as noted above, this was a case in which weekend work was necessary and could reasonably be expected by the defendants. Second, the deduction for weekend work assumes all 5 team members worked 10 hour days for each of the 26 weekend days. The plaintiff claims only 12 days for Mr. Lee and does not appear to claim any such time for Ms. Smith.
73One could also criticize my option one calculation by noting that it does not take into account the defendant’s criticism of the plaintiff’s daily rate they applied for trial work. The plaintiff’s daily rate for trial is $19,600. The defendant suggested rate is $16,540 (see page 16 of McCarthy Tetrault submissions). The difference of $3,120 for 70 days comes to $218,400. If we apply that further deduction to the partial indemnity rate under option, we arrive at a figure of $2,309,804.
74If I take still one more step and reduce the revised total legal fees by multiplying the total by .72 to reflect the 72% liability that the jury ascribed to Dr. Soni and Sarabia, I arrive at fees of $1,663,059. That is also unrealistically biased in favour of the defendants because the costs of prosecuting the case against the Nurses would have been incurred by the defendants had the plaintiff had not joined them.
(b) Option Two
75A second approach is to compare the plaintiff’s costs against the defendants’ costs.
76Dr. Daily submitted a bill of costs which shows billed fees of $1,408,663. McCarthy Tetrault submitted billed fees of $1,797,690. The total comes to billed fees of $3,206,353. If I multiply that total by .6, I arrive at a figure of $1,923,812.
77Some might argue there is duplication between Lenczner Slaght’s and McCarthy Tetrault’s billings which make it inappropriate to simply add the two. I do not believe that is the case. Dr. Daily was added later in the piece after discoveries of the Nurses and other physicians had already been completed.
78Although the pretrial time spent by Dr. Daily’s counsel is unlikely to be materially duplicative of the time spent by McCarthy Tetrault, let us assume for a moment though that the presence of Dr. Daily’s counsel in court duplicates the presence of McCarthy Tetrault.
79The time Lenczner Slaght lawyers spent in the court room comes to $358,0001. If I subtract that from the total defence billings of $3,206,353 I arrive at total billings of $2,848,353. Applying multipliers of .6 we arrive at a partial indemnity figure of $1,709,012.
80If I take these last figures and apply a further unreasonable multiplier to them of .72 to reflect the proportion of liability that the jury ascribed to Doctors Soni and Sarabia I arrive at figure of $1,230,489. Even that figure is higher than the high end cost figure that the defendants propose of $1,218,834.
81What I take from this number crunching is that however many unreasonable and unjustifiable reductions I apply to either the plaintiff’s or the defendant’s legal fees, the costs end up being higher than what the defendants submit are reasonable costs for the plaintiff. That leads me to doubt the fairness of the defendants’ proposed costs range.
(c) Proportionality
82Nevertheless, the defendants return to the concept of proportionality and submit that the plaintiff’s fees are excessive. In support, they cite from Buchanan v. Geotel (2002) 26 C.P.C. (5th) 87 to the effect that:
Having said all that, the bottom line is that the proposed costs are excessive. They are excessive from two perspectives: costs of this magnitude will make litigation inaccessible as a method of dispute resolution; costs of this magnitude are also disproportionate to the value of the legal work necessary to represent a client in this dispute. If counsel do not use more restraint in deciding how much to invest in litigation, they will put both the bar and the Courts out of business which will profoundly harm the public whom we both serve.”
83Those are important principles to bear in mind. But they cut both ways.
84If the plaintiff’s legal fees are disproportionate as the defendants allege, it is important to note that the defendants themselves chose to incur “disproportionate” fees of $3,206,353 with two different law firms to defend against what was ultimately a $2,700,000 liability.
85That is an important point to bear in mind because a sophisticated plaintiff’s bar knows that defendants are prepared to incur defence costs of that magnitude. The plaintiff’s bar knows that this is what they are up against in medical malpractice cases. They face a well-financed, formidable adversary. If plaintiffs hope to succeed, they must be extremely well prepared. For lawyers to be well prepared is expensive.
86Ms. Reinoso worked as a security guard at Lester B. Pearson Airport. It would have been impossible for her to fund this litigation through its 10 year existence. Extremely few people in our society could.
87Plaintiffs depend on lawyers who finance litigation for years and who are paid only if the claim is successful. To fix costs at a figure lower than the defendants’ partial indemnity costs would risk making it economically unfeasible for the plaintiff’s bar to bring medical malpractice claims. That would deprive the vast majority of the public of access to justice when they need it most; a result contrary to the Court of Appeal’s admonition in Boucher to fix costs at amounts that are fair and reasonable.
88The defendants would have every expectation that plaintiffs in a case like this would incur fees at least as large as the defendants’, if not larger.
89It is well accepted that a plaintiff’s costs are generally higher than a defendant’s costs: Gardner v. Hann, [2012] O.J. No. 1440 at para 42; Hanisch v. McKean, 2013 ONSC 5086, [2013] O.J. No. 3599 at para 59; Frazer v. Haukioja, [2008] O.J. 5306 at para 18 – 20; Shearer v. Sewchand, [2013] ONSC 6760 at para. 24, 30-32, 40-41. This results from the fact that the plaintiff bears the burden of proof and has a more difficult task than defendants do. In both Gardner and in Shearer the court had no difficulty with the fact that the plaintiff’s fees were twice as high as those of the defendants.
90Higher costs by the plaintiff are only exacerbated in medical malpractice cases. A plaintiff in a medical malpractice case can rarely, if ever, explain the basis of the claim to their lawyer. It is up to the plaintiff’s lawyer to review medical records to determine what happened, research medical issues, research legal issues and then determine whether there is a viable theory of liability. Here, investigating meant reviewing over 2000 pages of medical records to determine what happened, then analyzing the steps that the physicians did or did not take with Ms. Reinoso and then assessing whether there was a valid theory of liability. Plaintiff’s counsel does that without the help of any fact witnesses.
91The defendants, on the other hand have personal knowledge of what occurred. Defendants can review their notes in medical charts far more quickly than a plaintiff’s lawyer can. Defendants can then explain to their lawyers what they did and why they did it. That simple exchange allows a physician’s lawyer to develop a defence theory much more quickly than any plaintiff’s lawyer could develop a liability theory.
92Moreover, here the defendants had a single opponent, Ms. Reinoso. The plaintiff had multiple opponents often with conflicting theories of liability, such as the competing theories of the physicians and the Nurses or the assertions that Dr. Daily and Dr. Soni made about each other’s responsibilities. In addition, the fact that Dr. Daily was separately represented meant that the physicians could advance competing theories of causation making the job of plaintiff’s counsel more difficult and more time-consuming.
93When these challenges are coupled with the presence of a well-financed formidable foe and the need to be thoroughly prepared, they translate into costs for a plaintiff that are higher than those for a defendant. Plaintiff’s counsel here was thoroughly prepared. Their preparation was evident throughout the trial. They were able to push back on fact witnesses and experts with thorough knowledge of the medical records, evidence of other witnesses and scientific information. As the court noted in Fraser at para. 20, “counsel cannot be second-guessed or criticized now for preparing fully to capably and completely represent the plaintiffs’ best interests.”
94The defendants have the ability to control costs. In appropriate cases they can try to settle. As Justice Darla Wilson noted in Gardner, at para. 27:
There were numerous opportunities for Hann to resolve the claim within policy limits without the necessity of a long trial and Hann chose not to avail himself of those opportunities. I say this not in a critical fashion, as any litigant is entitled to have a claim proceed through trial, but if the outcome is not what was hoped for or anticipated, they cannot later be heard to say that they are not prepared to pay the consequences of their refusal to settle the case.
95Here the defendants made no settlement offers. Although they received a settlement offer from the plaintiff, they asked no questions about it. They did not ask the plaintiff for a specific dollar figure nor did the defendants offer any settlement figure. Having chosen not to engage the plaintiff on settlement and knowing what they themselves were spending, the defendants cannot now complain of the unexpected nature of the expense.
(d) Result
96In my view the two most reasonable comparators to the plaintiff’s request for costs are the revised fee number based on recorded hours with adjustments of $2,574,986 and the defendants’ partial indemnity costs of $1,923,812.
97The revised fee of $ 2.5 million includes a higher daily rate than the one the defendants think is appropriate. An adjustment to that rate to include the daily rate that the defendants propose results in a fee of $2,309,804. That latter fee would, however, be unfair to the extent one takes the recorded hours approach because it deprives the plaintiff’s counsel of all weekend work and does not take into account that there were many days that the parties worked longer than even a 10 hour day.
98The defendants’ fees come to $1,923,812. It is, however, well established that defence fees are less than plaintiff’s fees. As noted above, courts have not criticized plaintiff’s counsel for spending twice the number of hours as defence counsel. The plaintiff points out that their requested costs come to 1.4 times the defendants’ fees on a partial indemnity scale.
99While the precise percentage by which a plaintiff’s time exceeds that of a defendant will depend on a myriad of factors it strikes me that the idea of a plaintiff having to work 25% harder than a defendant in a case of this complexity would be quite conservative. Applying that multiplier to the defendants’ partial indemnity costs would result in fees of $2,404,765. I am quite comfortable that a plaintiff’s lawyer needs to put in more than 125% of the effort of a defendant’s lawyer in a case like this.
100I am more than comfortable that this is approach is, if anything, a conservative one that gives the defendants the benefit of the doubt. It calculates partial indemnity fees on a scale of 60% of actual fees as opposed to 65% which is frequently used. It applies the lower daily rate at trial that the defendants advocate ($2,309,804) and adds approximately $100,000 for work on weekends. At the defendants suggested daily rate for Mr. Bohm and Ms. Oakley of $4,437 per day that translates into 22.5 weekend days between the two of them for the entire trial as opposed to the 90 days of weekend work the plaintiff claims. The calculation of 22 ½ days weekend days would have each of Mr. Bohm and Ms. Oakley work one day on the weekend for each of the 10 weeks of trial and would leave $11,092 of time ($4,437 times 2.5 days) to be divided between the remaining members of the plaintiff’s team. If I use the daily rate suggested by the defendants that would come to 2.9 days of Mr. Oakley’s time or 3.8 days of Mr. Lee’s time. Having sat through the trial and knowing how much time I spent working evenings and weekends throughout it, that is a realistic assessment of the weekend work required.
101I therefore fix costs in favour of the plaintiff in the amount of $2,404,765.
III. Disbursements
102The plaintiff seeks disbursements including HST of $662,602.56. The defendants Dr. Sarabia and Soni incurred disbursements of $256,625. Counsel for Drs. Soni and Sarabia contrast the two figures and argue that the plaintiff’s disbursements are excessive. Comparing those two figures would, however, leave one with a misapprehension. A true apples to apples comparison would include the disbursements of Dr. Daily which came to $147,695.27 The total defence disbursements are therefore $404,320.27.
103As with lawyers’ fees, the issue with respect to disbursements is to fix an amount that is fair and reasonable under all the circumstances: Hamfler v. 1682787 Ontario Inc., 2011 ONSC 3331 at para. 7.
104By far the largest portion of the plaintiff’s disbursements is devoted to experts; approximately $450,000. The defence experts, Dr. Zoutman, Dr. Rau, and Dr. Austin charged a total of $183,959.
105The defence takes particular aim at Dr. Kumar who was paid a total of $135,400. While that number may seem large at first blush, a closer examination shows it to be reasonable. Of his total fee, Dr. Kumar was paid $100,000 as a block sum for preparing for and attending at trial. Dr. Kumar testified for 11 days. That comes to a charge of approximately $9,100 per day. If one assumes preparation time of one day for each day of trial attendance, Dr. Kumar’s rate would be $4,450 per day. Dr. Kumar is one of the world’s leading experts on sepsis, the condition the plaintiff alleged she developed as a result of the defendants’ negligence. He is a leading academic and clinician. Dr. Kumar’s fee does not strike me as unreasonable for a witness with those qualifications.
106If Dr. Kumar charged $100,000 for preparation and attendance at trial it means he charged $35,400 for the preparation of several expert reports. The defendants criticize his reports as being excessively long. It is true that plaintiff’s experts’ reports, and particularly those of Dr. Kumar, were considerably longer than those of the defendants’ experts. In the circumstances of this case, that is not a criticism but a desirable attribute.
107Considerable time was lost at trial because the defendants’ experts did not file reports that contained the reasons on which their opinions were based as is required by the rules. Much time was lost at trial over objections when the defence experts tried to advance new reasons for their opinions that were not contained in their reports. Reports that contain the reasons on which they are based are necessarily longer than reports that do not contain all of the reasons on which they are based.
108In addition, the plaintiff’s experts were considerably more detailed in their analysis of the defendants’ conduct than were the defence experts. The defence experts tended to take a broader brush approach. The plaintiff’s experts focused on specific steps that the defendants took or failed to take in light of particular aspects of Ms. Reinoso’s condition and explained why the defendants should either not have taken the steps they did or should have taken steps they failed to take.
109To some extent this also reflects the fact that a plaintiff’s costs will be higher than those of the defendant because the plaintiff must prove its case. The defence need only sew enough doubt for the jury to conclude that the plaintiff has not proven its case on a balance of probabilities. It is considerably more difficult to prove a point than to cast doubt on it.
110If I compare the overall cost per day of Dr. Kumar’s evidence to that of the defence experts, Dr. Kumar was less costly. As noted earlier, Dr. Kumar’s total charge for preparing reports and testifying for 11 days was $135,400 or $12,309 per day of testimony.
111Dr. Zoutman testified for two days. His report was a fraction of the length of Dr. Kumar’s. He charged $56,785.32. That comes to a daily rate of $28,379.
112Dr. Austin testified for four days. He charged $74,074.91 or $18,518 per day.
113Dr. Rau testified for 4 days. He charged $53,100.70 or $13,275 per day.
114Even if I reduce the number of days that Dr. Kumar testified to nine days to adjust for what I have found to be an excessively long examination in chief, the daily cost of his evidence becomes $15,044; still less costly per day than Dr. Zoutman or Dr. Austin.
115The disbursements for Dr. Kumar should be reduced to take into account the two days by which I have reduced Ms. Oakley’s time. Those two days should, however, be calculated on the basis of trial preparation and testimony and should not include the time he spent writing reports. Dr. Kumar’s charge for preparing and testifying was $100,000 or $9,100 per day. As a result, $18,200 should be deducted from the plaintiff’s disbursements to take this into account.
116The defendants object to taxi charges of $4,750 for Dr. Kumar. Those charges are high at first blush. Dr. Kumar did not stay in a hotel when he was testifying but stayed with relatives in Pickering. He took a cab each day to and from Pickering which allowed him to work en route. The records of Ms. Oakley’s firm indicate that a one-way fare is $160 excluding HST. If one adds HST, the charge comes to $180. An overall charge of $4,750 would therefore reflect 26 trips which reflects 13 days of travelling back and forth. This does not seem unreasonable given that Dr. Kumar testified for 11 of those days.2 Had Dr. Kumar not incurred the taxi charges he would have incurred hotel expenses in downtown Toronto which would have amounted to a similar or higher charge. Deducting two days of travel time for the two excess days of Dr. Kumar’s evidence results in a reduction of $720 to the taxi charges.
117The defendants object to disbursements of $23,462 for nursing experts reports from Eli Katz, Dr. Wong and Legal Nurse Atlantic. Just as it was not appropriate to deprive the plaintiff of recovery of her lawyer’s time spent advancing the case against the Nurses, it is equally inappropriate to deny her recovery of disbursements in respect of the Nurses. Although the action was settled against the Nurses, it was agreed that the physicians could use the plaintiff’s nursing experts at trial to ascribe as high a proportion of liability against them as the physicians chose. The physicians had the benefit of the experts’ reports that the plaintiff had commissioned. The experts had agreed to make themselves available to the defendants’ lawyers for trial preparation and to testify at trial.
118Similarly, it was agreed that the plaintiff could use the Nurses’ defence reports to resist challenges to the Nurses’ liability by the physicians.
119As it turned out no nursing experts were called to testify.
120The defendants raise a similar challenge with respect to the costs of the transcripts for discovery of the Nurses. The plaintiff is entitled to those costs for the reasons I have already given with respect to other costs involving the Nurses.
121The defendants object to paying for three reports from experts who were not called at trial: $51,702 for a damages report, $2,800 for a life expectancy report and $13,500 for a report from Dr. Striver, an infectious diseases expert.
122The defendants should not have to pay the $13,500 for Dr. Striver’s report. He was not called at trial. The plaintiff will be denied recovery of that expense.
123The damages and life expectancy reports are compensable. Although damages were ultimately agreed to, these expenses accrued before the agreement on damages was reached. Damages issues are critical case like this. It was quite proper of the plaintiff to commission such reports and certainly well within the expectation of the defendants.
18The cost of the transcripts of Doctors Miller and Epstein are costs that should not be borne by the defendants. My review of the disbursement ledgers of the plaintiff’s counsel shows that Dr. Miller’s transcripts cost $920 and Dr. Epstein’s transcripts cost $812.
124The plaintiff claims disbursements of $662,602. I reduce those disbursements by the following amounts:
Two days of trial time of Dr. Kumar -$18,200 Two days of taxi charges - $720 Dr. Striver’s report -$13,500 Dr. Miller’s transcript - $920 Dr. Epstein’s transcript - $812 Total deductions -$33,432 Allowed disbursements $628,387
Conclusion
125For the reasons set out above I order the defendants Dr. Soni and Dr. Sarabia to pay the plaintiff her costs of $2,404,765 plus disbursement of $628,387 including HST.
Koehnen J.
Date: April 6, 2020
Footnotes
- I have arrived at this figure by adding together the actual hourly rates of Nina Bombier, Chris Kinnear Hunter and Jessica Kras, multiplying them by 6.5 hours and multiplying that some by 70 days.
- I recognize that Dr. Kumar stayed in a hotel once which would give him 3 days of cab travel for 11 days of evidence. That is not excessive given the time Dr. Kumar spent in the court room while not testifying and given the need for preparation time.