Court File and Parties

COURT FILE NO.: CV-10-415744 DATE: 2020-08-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PATRICIA SMITH, Plaintiff AND: DR. BRENDA KANE, Defendant

BEFORE: Mr. Justice Arthur Gans

COUNSEL: Ryan Naimark, Kate MacLeod, and Courtney Madison for Plaintiff Junior Sirivar and Sam Rogers for Defendants

HEARD: In Writing

COSTS ENDORSEMENT

Introduction

[1] On January 27, 2020, I released the reasons for judgment on the issue of whether Dr. Brenda Kane (“Respondent”), the family physician of Ms. Patricia Smith (“Applicant” or “Plaintiff”), was negligent in the diagnosis and treatment of her patient: Smith v. Kane, 2020 ONSC 329, 316 A.C.W.S. (3d) 793.

[2] In part because the matter was under appeal and because I was only asked to set costs some 5 months after the release of judgment, I urged the parties to come to an agreement with respect to costs, both in terms of entitlement and amount.

[3] However, the parties only came to an agreement on the quantum of costs, which was set at $300,000, inclusive of disbursements.

[4] I am now charged with the task of determining the entitlement to costs that were incurred as a result of the litigation.

[5] For the reasons that follow, and having regard to the fact that costs will not be demanded, I find that the Respondent is entitled to her costs.

[6] I do not intend to repeat the facts leading up to my conclusion on liability in this endorsement. They are amply described in the above-cited judgment.

[7] While I did revisit my conclusions on the issue of standard of care during the course of writing the decision, I ultimately determined that Dr. Kane’s treatment of Ms. Smith did not fall below the standard of care of a reasonably competent family physician. I came to this conclusion despite what appeared to be a period of “dithering” when Dr. Kane did not undertake contemporaneous alternative investigations with repeat imaging.

[8] I rendered a decision on the issue of causation in the event that my conclusion on standard of care was found to be wrong. I found that, but for the negligence of Dr. Kane (if such had been found), it was more probable than not that Ms. Smith’s leg could have been saved and the below knee amputation avoided had she been sent for timely imaging on or before October 2008.

[9] Furthermore, I declined to find Ms. Smith contributorily negligent. Her alleged missed appointments and lack of diabetic vigilance did not amount to a failure to act as a reasonably prudent patient, even though she may not have been the most compliant one.

[10] As a result, I dismissed the action in its entirety.

Analysis

[11] Costs usually follow the event, and the successful party is ordinarily entitled to an award of costs.

[12] The Court has a wide discretion in awarding costs arising from s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which is to be exercised in accordance with the factors outlined in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[13] The basket clause found in Rule 57.01(1)(i) allows the court to consider “any other matter relevant to the question of costs” in exercising its discretion. This clause opens the door to a line of authorities which arguably hold that costs should not be ordered against impecunious plaintiffs, which will be discussed in more detail below.

Offer to settle

[14] The Applicant first submits that the Respondent’s failure to make any settlement offer is a factor to be considered in determining entitlement to costs. In my opinion, the mere fact that Dr. Kane did not make an offer to settle is not a valid legal ground to penalize her.

[15] In Pike's Tent & Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.), the plaintiff submitted that it made genuine efforts to settle the action, whereas the defendant did not. The Court held that this was not a relevant consideration in exercising its discretion and stated that “at least in non-matrimonial litigation, there is no obligation on a litigant to make a pre-trial offer to settle” (at para. 49). The Court opined that it would be “an error in law to deny costs to a successful defendant because of a failure to make a pre-trial offer to settle” (at para. 39).

[16] I accept the above statement as the operative law and for these reasons, do not find the fact that Dr. Kane did not submit an offer to settle a relevant consideration in the exercise of my discretion.

Divided Success

a) While divided success may be a relevant factor in the court’s exercise of discretion, I would not classify my decision as amounting to divided success.

[17] The Applicant argues that there was divided success because she “succeeded” on the issues of causation and contributory negligence. In my view, the Respondent correctly points out that the Plaintiff was unable to prove the underlying tort, and the action was therefore dismissed in its entirety.

[18] What the Applicant suggests would amount, in my view, to a “distributive” costs award, which the Court of Appeal has warned against: see e.g. Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, 248 A.C.W.S. (3d) 820, at para. 21; Oakville Storage & Forwarders Ltd. v. Canadian National Railway, 1991 CarswellOnt 440, at para. 17 (Ont. C.A.).

Access to Justice

[19] Modern costs rules are designed to facilitate access to justice, including access to impecunious litigants: Mancinelli v. Royal Bank of Canada, 2020 ONSC 3743, at para. 19. The overriding principle is reasonableness when fixing costs, but the Court should balance the indemnity principle with the fundamental objective of access to justice: Mangal v. William Osler Health Centre, 2013 ONSC 5276, 231 A.C.W.S. (3d) 612; Baines v. Hehar, 2013 ONSC 849, 114 O.R. (3d) 551.

[20] However, access to justice has not been denied in the instant case since, like many other medical malpractice cases, the action was undertaken by the Plaintiff’s lawyer on a contingency fee basis. Indeed, this action was effectively tried, in part, twice since the first trial ended in a mistrial and had be mounted by Plaintiff’s counsel anew.

Hardship, Impecuniosity, and Tragic Circumstances

[21] Rule 57 and the lines of authority that follow canvass some factors and competing concerns that are relevant in the exercise of the Court’s discretion. As Perell J. noted in Drougov v. Ontario, 2008 CarswellOnt 2080, at para. 10, a party’s impecuniosity and other circumstances of hardship are proper considerations. A party’s financial wherewithal to pay an award of costs, as well as the party’s likelihood to acquire the ability to meet a costs burden, are, as my colleague noted, relevant considerations.

[22] It is also appropriate to take into account tragic circumstances when exercising discretion as to costs: Marchand v. Public General Hospital Society of Chatham (2000), 138 O.A.C. 201, at para. 181.

[23] In the instant case, hardship would undoubtedly follow from an enforced award of costs. The Plaintiff’s uncontradicted Affidavit makes clear that Ms. Smith is an impecunious person, who, for all intents and purposes, relies on social assistance to support herself. She does not have the financial wherewithal to pay any such award as was set by agreement, and it would be speculative for me to assume she could do so in the future.

[24] Ms. Smith also faced tragic circumstances by losing her foot, which resulted in the loss of mobility and independence. Indeed, the Respondent conceded the presence of tragic circumstances in its factum, mentioning that it was “undeniably tragic” that Ms. Smith suffered a below-knee amputation.

[25] However, these factors are now moot as the Respondent has, for all intents and purposes, asserted, if not undertaken, that costs will not be demanded, which statement was made both in the factum (at para. 3) and orally in a case conference over which I presided.

[26] Should the Respondent reconsider its position and seek to enforce this order, I specifically reserve the right to revisit the disposition set out below.

Disposition

[27] I have concluded on basis of my observations during the trial as well as the uncontradicted Plaintiff’s Affidavit that hardship would ensue if costs were demanded. Since costs are not demanded, the ordinary rule of costs should apply because any concerns of hardship are, now, alleviated.

[28] For the above reasons, I find that the Respondent is entitled to its costs.

Gans J. Date: August 11, 2020