Court File and Parties

COURT FILE NO.: CV-13-4879 DATE: 2020 04 22

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

RASHID ALI SYED Plaintiff

A. Fabio Longo, for the Plaintiff

- and -

DEREK JAMES PETRIE Defendant

Lori Visconti, for the Defendant

COSTS ENDORSEMENT

Fowler Byrne J.

[1] This matter was called to trial during the January 2020 civil blitz. Several pre-trial and mid-trial rulings were made before a mistrial was declared on January 23, 2020. On each decision, costs were reserved. This is my ruling on those costs.

Background

[2] The following is a summary of the motions argued and the result.

i. Motion to Move Trial Back to Brampton

[3] Due to space restrictions in the Brampton courthouse, this matter was traversed to be heard in the Kitchener courthouse. On the first day scheduled for pre-trial motions, the Plaintiff brought an oral motion, without notice, to move the trial back to Brampton. The Defendant took no position. The motion was dismissed.

ii. Motion to Exclude Surveillance Evidence or Adjournment

[4] Plaintiff’s counsel received disclosure of recent surveillance of the Plaintiff in the days leading up to trial. The Defendant also disclosed that it had a new background investigation report. The Plaintiff moved to exclude the recent surveillance. If the recent surveillance was permitted, the Plaintiff requested a three month adjournment in order to review the surveillance with his client and experts. The motion to exclude was dismissed, parameters were set out for the use of the surveillance, the background investigation report was to be disclosed within 24 hours and a short adjournment of four trial days was granted to the Plaintiff.

iii. Expert and Non-Party Expert Witnesses

[5] Both parties brought motions with respect to the number and type of witnesses the other could call. The Plaintiff sought leave to call more than three expert witnesses, sought to limit the Defendant’s ability to rely on reports from the Plaintiff’s accident benefit insurance examiners and sought to restrict the Defendant’s ability to call those experts as witnesses. This motion was opposed. The Plaintiff’s motion to limit the number of non-party experts was granted in part. I granted leave to the Plaintiff to call more than three expert witnesses but excluded the evidence of two doctors and required the Defendant to pick one expert from the two experts proffered in similar fields.

[6] The Defendant did not take issue with the number of witnesses to be called by the Plaintiff but sought to exclude Dr. Gozlan, Dr. Becker and Joanna Ramos as expert witnesses and exclude their reports. This motion was opposed. I ruled that Dr. Gozlan and Dr. Becker were permitted to be expert witnesses, but that Ms. Ramos was permitted only to be a participation witness.

iv. Motion for Mistrial Following Opening Statements

[7] The trial commenced with opening statements on January 16, 2020. Immediately following, the Plaintiff brought a motion for a mistrial based on the content of the Defendant’s opening statement. This motion was opposed. I dismissed the motion.

v. Mistrial Following Injury to the Plaintiff

[8] On January 22, 2020, the Plaintiff was to continue his evidence in chief. Unfortunately, the Plaintiff collapsed in the presence of the jury, due to self-harm. The court sought submissions from the parties as to how to proceed. The Defendant brought a motion for a mistrial, which was opposed. The mistrial was granted.

Law

[9] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that costs of and incidental to a proceeding are in the discretion of the court. “In Ontario, the normative approach is first, that costs follow the event; 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”: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5.

[10] Rule 57.01(1) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, “lists a broad range of factors for the court to consider, including the result achieved in the proceeding, the complexity of the proceeding, the importance of the issues and whether any step in the proceeding was improper, vexatious or unnecessary”: DUCA, at para. 6.

[11] As stated by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. Armstrong J.A., at para. 24, cites to the Court of Appeal’s decision in Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495, at para. 4: “In 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.”

[12] Rule 49 may also be operative and impact an award of costs if any offers to settle were served. No offers were exchanged for these motions.

[13] The Plaintiff maintains that this court already denied the Defendant’s request for costs thrown away as a result of the mistrial. I disagree. A plain reading of the endorsement of January 23, 2020 contemplates that all issues of costs brought forward in the Defendant’s motion for a mistrial, as well as the other motions, are left to be decided.

[14] A party who seeks costs thrown away is seeking their costs for trial preparation which have been wasted and trial preparation that must be redone as a result of the adjournment of a trial: Caldwell v. Caldwell, 2015 ONSC 7715, at para. 8. The purpose is not to penalize a party who sought the adjournment or was at fault for the adjournment of the trial due to mistrial, but to indemnify a party for the wasted time incurred for trial preparation or trial work arising from the mistrial: Caldwell, at para. 11; Graziano v. Ciccone, 2017 ONSC 362, at para. 8. As the intent is to indemnify a party for the wasted time of trial preparation arising from the adjournment, costs are usually awarded on a substantial recovery basis: Pittiglio v. Pittiglio, 2015 ONSC 3603, at para. 6.

[15] What if, in this case, the mistrial is not the fault of any party? In the case before me, it was the Plaintiff’s health crisis that necessitated the adjournment. The following categories of cases in which a party seeks costs thrown away were outlined by Quinlan J. in Caldwell, at para. 9:

(i) The first category deals with fault where, for example, one of the parties or their counsel neglect to call a witness or a last-minute amendment is required. The court will grant the adjournment on conditions, including the payment of costs thrown away. (ii) The second category is where the trial is adjourned because of the court’s scheduling problems. No costs are awarded in this circumstance as no party bears responsibility for the adjournment. (iii) The third category deals with adjournments sought by one of the parties as a result of no fault on their part. Costs thrown away are still awarded against the party applying for the adjournment, notwithstanding lack of fault.

[16] With respect to the third category, Quinlan J. relies on the decision of Ritter J. of the Court of the Queen’s Bench in Alberta, in Goddard v. Day, 2000 ABQB 799, at para. 20, where he states:

I am satisfied that the third category of adjournment is really one of responsibility for the adjournment as opposed to fault or lack of fault. By that I mean situations where someone is responsible for an adjournment, but cannot be faulted for that responsibility. I conclude that an individual who comes before the Court and requests an adjournment because of the pressures of work is in such a position. That is, he is responsible for the adjournment. He is not to be faulted for the adjournment, but nevertheless his responsibility remains. It is hardly the responsibility of the system or the other party. Being responsible for an adjournment, in my view, carries with it a cost consequence.

[17] In Graziano, at para. 11, the court adds to the second category “unforeseen events such an illness of a party, lawyer or witness or an emergency such as a personal emergency, health issue or death in a family.”

[18] In Furr v Duhamel, 2017 ONSC 4623, Beaudoin J. states that this addition confuses the second and third category and should not be followed. He maintains that costs thrown away should still be awarded against a party applying for an adjournment, notwithstanding the lack of fault: at para. 13.

[19] After reviewing the case law, I have concluded that the approach adopted in Furr more accurately reflects the approach that should be taken by this court. Requests for an adjournment of a trial are either the fault of one party, the responsibility of one party, or neither the fault nor responsibility of either party. Only the last category excuses both parties from any cost consequences. The Plaintiff’s health crisis is unfortunate and is not the fault of any party. Nonetheless, it is the responsibility of the Plaintiff. Costs have been incurred and need to be addressed, no differently than if he was called away by a family emergency beyond his control.

[20] The Plaintiff relies on the case of Kreiser v. Garber, 2018 ONSC 478, wherein an adjournment of a trial was granted due to the urgent requirement of chemotherapy treatment of one of the defendants. Costs were left with the trial judge. At trial, the Plaintiff was successful, and the court relied on Furr in support of an award for costs thrown away against the Defendants despite the reason for the adjournment: Kreiser v. Garber, 2019 ONSC 3241.

Analysis – Motions

i. Venue Motion

[21] No costs are payable with respect to the Plaintiff’s motion to change venue. No materials were filed. The Plaintiff’s submissions were brief and the Defendant took no position.

ii. Surveillance Motion

[22] With respect to the motion to exclude surveillance, the results were mixed. The Defendant was prima facie permitted to tender the most recent surveillance, but its ultimate admissibility would be subject to a voir dire. In addition, although the Plaintiff was not successful in having the trial adjourned for three months, he was granted an adjournment for three trial days.

[23] The combined time spent by each party on this motion was roughly equivalent, although the actual expense to the Plaintiff was minimal due to the use of junior counsel. The late delivery of the surveillance was necessary. Even if the eventual admissibility of the surveillance was not determined, the request for an adjournment was reasonable in the circumstances, which was opposed. Considering what is a fair and reasonable result, I find that the Plaintiff should have their costs of this motion on a partial indemnity basis, fixed in the sum of $7,500.

iii. Expert Witness Motion

[24] Two motions were argued on this issue. The results were mixed, but on the whole, the Plaintiff was more successful. The Plaintiff spent slightly more hours on this matter but effectively utilized lower-cost counsel. Almost a day was devoted to these motions.

[25] Considering the result and what is fair and reasonable in the circumstances, I find that the Plaintiff should have his costs on this matter on a partial indemnity basis, fixed in the sum of $5,000.

iv. Plaintiff’s Mistrial Motion

[26] The Plaintiff prepared a Notice of Motion and a Factum. No materials were prepared by the Defendant. Both parties made submissions, but mostly the Plaintiff. The Plaintiff’s motion was dismissed.

[27] Neither party prepared a Costs Outline with respect to this motion. The Defendant asked for costs, but did not propose a suitable amount or disclose any detail of the amount of time spent. Accordingly, taking into consideration the short amount of time spent on this matter and the result, there shall be no costs awarded on this motion.

v. Defendant’s Mistrial Motion

[28] The amount of time spent on this motion by each party differed significantly. The Defendants claims to have spent approximately 30 hours between several counsel. The Plaintiff claims he only spent approximately 4.5 hours. The motion for a mistrial was vigorously defended by the Plaintiff’s counsel despite having no knowledge of his client’s condition and when he would be able to testify. The Plaintiff’s position was also curious given that he had sought a mistrial less than one week prior and brought an earlier motion to adjourn the proceedings for several months.

[29] Having forced the Defendant to argue the motion, and given that the Defendant was successful, and considering all other relevant factors, the Defendant is entitled to his costs on a partial indemnity basis, fixed in the sum of $7,000.

Analysis – Costs Thrown Away

[30] The Defendant seeks his costs thrown away on a substantial indemnity basis in the sum of $120,950.10, or in the alternative, on a partial indemnity basis of $86,990.94. The Plaintiff provides no Costs Outline on this issue, but disputes the time spent and the disbursement costs. The Defendant claims these are the costs wasted due to the mistrial.

[31] Upon reviewing the Costs Outline and the brief outline of the tasks claimed, it is difficult to accept that all this time was wasted and would have to be duplicated when the trial is rescheduled. In particular, items such as “correspondence to and from counsel” and “correspondence to and from client” lack any specificity. Items such as “research trial related issues pertaining to admissibility of evidence, surveillance, cross-examinations upon filing reports, research regarding expert witnesses to testify at trial, retention of expert witness/surveillance witnesses, preparing notice of intention, updates of medical and special damages brief” appear on their face to be either a duplicate request for time already sought on pre-trial or mid-trial motions or work that need not be duplicated. I do accept that preparation of witnesses will have to be duplicated as well as a general review of the file, although the preparation time may not be as lengthy. With respect to the fee claimed by Dr. Notkin, the invoice sets out items which go beyond costs “thrown away”. I would assess six hours of review at their rate of $540.00 plus HST as appropriate.

[32] I agree that the parties will have to reattend to select a new jury and opening addresses will have to be duplicated. The Plaintiff only spent about 15 minutes giving evidence before the trial fell apart. I do have difficulty with the large photocopy expense and how these photocopies would not be reusable when the trial proceeds. Trial attendances are reasonable costs thrown away but not the time taken to get there, nor are the various travel expenses assessable disbursements. The actual time in court with respect to the trial was the time taken to make opening submissions and the 15 minutes the Plaintiff was on the stand on his first day before he did not feel well enough to proceed.

[33] Accordingly, I accept that the Defendant is entitled to costs thrown away on a substantial indemnity basis, but limit them as follows:

Fees Trial Attendance (4 hours for Ms. Visconti allowed) $1,440.00 Trial Prep. Thrown Away (33% claimed) $23,578.92 HST on Fees: $3,252.46 Disbursements Process Server Fees (Summons) $853.15 Expert Preparation for Zakzanis, Paitch, Clark (50% claimed) $734.50 Expert Preparation for Notkin (6 hours allowed) $3,729.00 Total: $33,588.03

[34] With respect to the timing of these payments, I have taken into consideration the factors that have led to the mistrial and exercise my discretion to direct that the costs not be paid until which time the trial is over. I would be reluctant to do so if any party was at fault for the mistrial, however the Plaintiff was not at fault, but only responsible. In this scenario the trial was a result of a medical emergency beyond any party’s control. While costs thrown away should be paid, they can be deferred until the trial is heard or dealt with in an agreeable manner if the parties are able to reach a settlement.

Conclusion

[35] Accordingly, I make the following orders:

a) With respect to the Plaintiff’s motion regarding the admissibility of late surveillance, the Defendant shall pay to the Plaintiff his costs on a partial indemnity basis, fixed in the sum of $7,500, inclusive of fees, disbursements and taxes, payable in any event of the cause; b) With respect to both the Plaintiff’s motion and the Defendant’s motion on expert witnesses, the Defendant shall pay to the Plaintiff his costs on a partial indemnity basis, fixed in the sum of $5,000, inclusive of fees, disbursements and taxes, payable in any event of the cause. c) With respect to the Defendant’s motion for a mistrial, the Plaintiff shall pay to the Defendant his costs on a partial indemnity basis, fixed in the sum of $7,000, inclusive of fees, disbursements and taxes, payable in any event of the cause. d) The Plaintiff shall pay to the Defendant the Defendant’s costs thrown away as a result of the mistrial, on a substantial indemnity basis, fixed in the sum of $33,588.03, inclusive of fees, disbursements and taxes, payable in any event of the cause. e) There shall be no other costs for any of the other pre-trial or mid-trial motions argued to date and no costs for the preparation of submissions in support of costs.