Court File and Parties

COURT FILE NR. CV-13-56698 and 15-63434

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Paul Boone by his litigation guardian Elizabeth Boone, Plaintiff

AND:

Dr. Kevin O’Kelly and Dr. Karl R. Smyth, Defendants

And

Paul Boone by his litigation guardian Elizabeth Boone and Laurence Boone, Plaintiff

AND:

Dr. Kwadwo Kyeremanteng, Dr. Jose Aquino Jr., the Ottawa Hospital, Paule Marchand and Colleen Acharya, Defendants

BEFORE: Master Kaufman

COUNSEL: Thomas P. Connolly / Sarah E. Russel, for the Plaintiff Erin Page, for the Defendants

HEARD: In writing

COSTS ENDORSEMENT

[1] On August 28, 2020, I dismissed the defendants’ motion to compel the plaintiff to attend a defence medical assessment and the plaintiff’s cross-motion to strike certain parts of the defendants’ motion record. I invited the parties to make costs submissions if they could not agree on costs. I received submissions from both parties.

[2] The motion and cross-motion raised three issues: 1) whether leave was required to bring a motion under r. 48.04; 2) whether the plaintiff should be required to undergo a defence medical examination; and 3) whether certain portions of the defendants’ motion record should be struck. The defendants were successful on issues 1 and 3 and the plaintiff was successful on issue 2. The second issue was the dominant one and it can safely be said that while success was divided, it was not equal – and that the plaintiff achieved greater success.

[3] The motion proceeded by videoconference and lasted approximately two hours.

[4] The plaintiff claims $28,587.29 on a partial indemnity scale. The amount is based on 72 hours of preparation almost equally split between Mr. Connolly who is a very senior member of the bar (1975 call) and his colleague Ms. Russell (2017 call). The plaintiff contends that the motion was highly complex, that the issues were important, and that bringing this motion 39 days before trial required extensive preparation.

[5] The defendants argue that costs should not be awarded to either party, or in the alternative that they should follow the event. The rely on the fact that success was divided, that they plaintiff unnecessarily lengthened the motion by taking the position that leave was required when it was not, that the defendants were entirely successful on the cross-motion and that the defendants acted reasonably in bringing the motion. Moreover, they argue that $28,587.29 is excessive for a two-hour straightforward motion of the kind that experienced litigation counsel regularly deal with.

[6] The costs of a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.[^1] Rule 57.01 lists a broad range of factors the court may consider when exercising its discretion to award costs. The Court must consider:

(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.

[7] Cost awards must not be the product of a simple mechanical or mathematical calculation focused on the time spent multiplied by hourly rates. Rather, costs are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case.[^2] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant.[^3]

[8] Bearing these principles in mind, I make the following findings.

[9] I agree with the defendants that the hours claimed exceed those normally allowed for motions of similar complexity. I accept that motions that are brought at the last minute will consume additional time, and that significant effort was required to synthesize the documents and create a chronology. While I do not have the defendants’ bill of costs to compare, I nevertheless conclude that the hours claimed are excessive.

[10] I also find that the motion was important for both parties and that the hourly rates claimed were appropriate having regard to the experience of counsel. I agree with the defendants that they did not act unreasonably in bringing the motion, which I stated in my reasons that I would have allowed had it not been for the pending trial.

[11] I fix costs in the all-inclusive sum of $6,500, payable by the defendants to the plaintiff in any event of the cause.

Master Kaufman

Date: September 25, 2020

[^1]: Courts of Justice Act, R.S.O. 1990, c.C.43, section 131. [^2]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.); Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct). [^3]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.