COURT FILE NO.: CV-15-4725-00 DATE: 2021 04 06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PARIS PEREKEME ODEDE and LORINE ODEDE
Plaintiffs
- and -
DR. PIERO TARTARO and YORK DIAGNOSTIC CENTRE
Defendants
COUNSEL: Sukhjinder Bhangu and Bois Peter Wilson, for the Plaintiffs Stephanie Sugar, for the defendant/moving party, Dr. Piero Tartaro
HEARD: virtually, by Zoom videoconference: March 10, 2021, at Brampton, Ontario
BEFORE: PRICE J.
COSTS ENDORSEMENT
NATURE OF PROCEEDING
[1] The Defendant Dr. Piero Tartaro (“Dr. Tartaro”) moved successfully for summary judgment dismissing this medical malpractice action against the defendants on the ground that it was commenced eleven months beyond the two-year statutory limitation period and on the further ground that the Plaintiffs had failed to produce an expert report substantiating their claim. The Defendant York Diagnostic Centre (“the Clinic”) supported Dr. Tartaro’s position at the hearing of the motion but did not file separate motion material.
[2] The Defendants claim their costs of the motion and of the action. This endorsement addresses that issue. This endorsement should be read in conjunction with the Court’s reasons for its disposition of the motion.[^1]
BACKGROUND FACTS
[3] The Court allowed Dr. Tartaro’s motion for summary judgment and dismissed the action against both defendants on the ground that there was no genuine issue for trial as to whether the action was commenced beyond the statutory two-year limitation period.
ISSUES
[4] The court must determine whether the Defendants are entitled to their costs and, if so, in what amount.
THE PARTIES’ POSITIONS
[5] Dr. Tartaro claims his costs of the action in the amount of $41,053.73, inclusive of fees, disbursements and H.S.T., inclusive of his costs of the motion. He filed two separate Bills of Costs, one for the motion, in the amount of $8,894.32, and another for the action, inclusive of the motion.
[6] The Clinic claims its costs of the action in the amount of $28,702, inclusive of $6,172.06 for its attendances for the hearing of the motion. Neither defendant filed a Bill of Costs for the costs of the action, exclusive of the costs of the motion.
[7] The Plaintiffs did not file argument or a Bill of Costs on the costs issue, although invited to do so.
ANALYSIS AND LAW
1. COSTS OF THE MOTION
a) General principles
[8] Justice Boswell set out the general principles governing costs assessments in George v. Landles, where he stated:
The award of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 provides for the general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs. In addition, the Court must always be mindful of the purposes that costs orders serve. As Perell J. summarized in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), at para. 10:
Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements (internal citations omitted).
Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.). In assessing what is fair and reasonable in the circumstances, the Court is not to engage in a mechanical exercise, but rather must take a contextual approach, applying the principles and factors discussed above, to settle on a figure that is fair and reasonable in all the circumstances: Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), [2003] O.J. No. 1658, at para. 17.[^2]
[9] The Court is guided by the factors set out in Rule 57.01(1) of the Rules of Civil Procedure. The Court may consider, among other factors, the following:
(a) The complexity of the proceeding;
(b) The importance of the issues;
(c) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(d) Any offers to settle;
(e) The principle of indemnity;
(f) The concept of proportionality, which includes at least two factors:
(i) The amount claimed and the amount recovered in the proceeding; and,
(ii) 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;
(g) Any other matter relevant to the question of costs.
b) Importance and complexity of the motion
[10] The motion was important to the parties as it resulted in a dismissal of the plaintiffs’ action. There were no issues of particular importance to the public.
[11] The motion was moderately complex. It raised issues of the discoverability of the plaintiffs’ claim in relation to the limitations issue. It also raised the significance of the plaintiffs’ failure to produce an expert report as to Dr. Tartaro’s alleged negligence.
c) Reasonableness of conduct and offers to settle
[12] The general rule in determining entitlement to costs is that costs follow the event, and will be awarded on a partial indemnity scale.[^3] In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an unreasonable manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation.[^4] Dr. Tartaro does not seek his costs on a substantial indemnity scale.
[13] The Clinic served an Offer to Settle dated December 12, 2019, for a dismissal of the action without costs. It seeks its costs on a substantial indemnity scale, on the ground that it served a Rule 49 Offer to Settle which, if accepted, could have avoided the motion insofar as the Clinic was concerned.
[14] The 2010 amendment of Rule 20.06 shifted the burden of persuasion in relation to the costs of a motion for summary judgment away from the unsuccessful party on the motion. Before the Rule was amended, the unsuccessful party faced a presumption that the successful party was entitled to costs on a substantial indemnity scale. The amendment shifted the burden to the successful party (whether that was the moving party or the party resisting the motion), who now must demonstrate that costs on a substantial indemnity scale are justified.
[15] Rule 20.06 now provides that the court may order the payment of costs of such a motion on a substantial indemnity basis if the party acted unreasonably by making or responding to the motion.
[16] The Court of Appeal for Ontario, in Smyth v. Waterfall, held that solicitor and client costs (i.e. substantial indemnity costs) ought to be awarded where it should have been obvious to the moving party at the time when the motion was brought that it stood virtually no chance of success.[^5] I find that it should have been obvious to the plaintiffs when they resisted the motion that they stood no chance of success, unless they prevailed in the factual premise that their claim was discoverable only when they received an opinion from a doctor in Nigeria that there was malpractice. It was not disputed that they were unable to obtain an opinion from a doctor in Ontario that supported their position. They were granted one adjournment to enable them to obtain such an opinion from a doctor in Nigeria but failed to produce one. They filed no affidavit in opposition to the motion for summary judgment and were unsuccessful in their request for a further adjournment.
[17] I find that the plaintiffs’ conduct was unreasonable in persisting to oppose Dr. Tartaro’s motion when they should have known that he would prevail. This would support a claim by Dr. Tartaro for his costs on a substantial indemnity scale but, as noted above, he has not requested costs on the higher scale.
[18] The Clinic is justified in claiming its costs on as substantial indemnity scale from December 12, 2019, based on its Offer to have the action dismissed without costs. This includes its costs of the motion, as it filed no separate material and claims only its costs of attending at the hearings of the motion after 2019.
d) Indemnity - The hourly rates charged
[19] Dr. Tartaro claims his partial indemnity costs of the motion in the amount of $8,894.32, inclusive of fees, disbursements, and H.S.T. I find this claim to be reasonable and, indeed, modest, for the reasons that follow.
[20] In determining the appropriate hourly rates to be assigned to the lawyers involved in this motion, the court would normally follow the approach taken by Aitkin J. in Geographic Resources.[^6] The starting point in that approach is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan editions of the Rules. It sets out maximum partial indemnity hourly rates that can be claimed by lawyers of various levels of experience.
[21] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80.00 for law clerks, $225.00 for lawyers of less than 10 years’ experience, $300.00 for lawyers of between 10 and 20 years’ experience, and $350.00 for lawyers with 20 years’ experience or more.[^7] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases.
[22] Stephanie Sugar, who was Dr. Tartaro’s lawyer at the hearing, was called to the Bar in Ontario in 2013. She is entitled to claim the maximum hourly rate for a lawyer of under 10 years’ experience, having regard to the complexity of the motion. Eli Mogil, who assisted Ms. Sugar in preparing the motion, was called to the Bar in 2006, and is entitled to the maximum hourly rate for lawyers who have practiced law between ten and twenty years. The Clinic’s lawyer, Craig Edwards, was called to the Bar in 2001. Based on his 20 years’ experience and his reduced level of involvement, he having filed no material on the motion, I find that he is entitled to the maximum partial indemnity hourly rate for lawyers of 10 to 20 years experience.
[23] The Costs Bulletin, published in 2005, is now dated. Normally, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005. Aitkin J. considered doing so, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,[^8] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she used their unadjusted rates.
[24] Based on the Bank of Canada Inflation Calculator, available online,[^9] the current (2021) equivalent of the hourly rates in the Costs Bulletin are $105.13 for law clerks, which I would round down to $115.00, $295.67 for lawyers of under 10 years’ experience, which I would round down to $295.00, $394.23 for lawyers of between 10 and 20 years’ experience, which I would round up to $395.00, and $459.93 for lawyers of over 20 years’ experience, which I would round up to $460.00.
[25] The court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate.
[26] The court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. In the present case, I do not find that there are factors that dictate a reduction in Dr. Tartaro’s lawyers’ hourly rates.
[27] Ms. Sugar, having practiced law for less than 10 years, was entitled, according to the Costs Bulletin, to claim a maximum hourly rate of $225.00, on a partial indemnity scale, in 2005. I would adjust that to $295.00 in today’s dollars. Mr. Mogil and Mr. Edwards were entitled to claim a maximum hourly rate of $300 in 2005, which I would adjust to $395.00 today. The Law Clerks and Students-at-Law were entitled to claim $80.00 in 2005, which I would adjust to $105.00 today.
[28] Ms. Sugar’s and Mr. Mogil’s substantial indemnity rates can be derived by applying Rule 1.03 of the Rules of Civil Procedure, which provides:
“substantial indemnity costs” mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A, and “on a substantial indemnity basis” has a corresponding meaning; (“dépens d’indemnisation substantielle”)
[29] Applying that definition, Ms. Sugar’s substantial indemnity hourly rate is $442.50 ($295 x 1.5), which I would round down to $440.00. Mr. Mogil’s and Mr. Edwards’ substantial hourly rate is $592.50 ($395 x 1.5), which I would round down to $590.00. The Law Clerk’s and Student’s substantial indemnity rate is $105.21, which I would round to $105.00. These rates are below Ms. Sugar’s actual hourly rate of $480.00, Mr. Mogil’s actual rate of $595.00, Mr. Edward’s actual rate is $475.00, and the Law Clerk’s and Student’s rates, which range from $153.00 to $189.00. The Court should not exceed the actual rates when awarding costs, even on a substantial indemnity scale. As long as the resulting amounts do not exceed the amounts actually charged to the client, the actual fee that the client agreed to pay is irrelevant.
[30] Based on the foregoing, Dr. Tartaro could be claiming his costs of the motion at the substantial hourly rate of $440.00 for Ms. Sugar’s time, $590.00 for Mr. Mogil’s time and $105.00 for their Law Clerk’s and Students’ time. The Clinic could claim its costs at $590.00 per hour for Mr. Edwards’ time. As noted above, Dr. Tartaro claims costs on only a partial indemnity scale, which I find is reasonable, having regard to the nature of the action and the basis upon which it was dismissed.
e) Indemnity - The time spent on the motion
[31] Ms. Sugar spent 20.4 hours on the motion, consisting of 17.4 hours in preparation and 3.0 hours in attendance up to the beginning of the hearing on March 10, 2021. For this time, she claims hourly rates ranging from $276.00 to $288.00, depending on when the work was done. At her adjusted maximum substantial indemnity hourly rate of $440.00, this would result in costs of $8,976.00.
[32] Mr. Mogil spent 3.6 hours which, at his substantial indemnity rate of $590, would result in costs of $2,124.00.
[33] Mr. Mogil’s and Ms. Sugar’s Law Clerk, Janet Jones, spent 1.4 hours which, at her hourly rate of $105.00, would result in costs of $147.00.
[34] The total costs of the motion, on a substantial indemnity scale, would therefore be $11,247.00 plus HST (13%, or $1,462.11) for fees and $534.58 plus $69.50 for disbursements, for a total of $13,313.19. This is $4,418.87 greater than the amount Dr. Tartaro is actually claiming.
[35] I am adding 3.5 hours to the time Dr. Tartaro claimed for Ms. Sugar’s time, based on the time she spent at the hearing on March 10, 2021, as this time was not included in the Bill of Costs that was filed in advance of the hearing. At Ms. Sugar’s adjusted maximum hourly rate of $395.00, this adds $1,382.50 to the fees Dr. Tartaro is allowed, plus $179.73 for HST. The costs to be paid to Dr. Tartaro for the motion will therefore be the fees set out in his Bill of Costs, in the amount of $7,336.50, plus $1,382.50, for a total of $8,719.00 for fees, $1,133.47 for HST on fees, $534.58 for disbursements, and $69.50 for HST on taxable disbursements.
[36] The Clinic’s lawyer, Mr. Edwards, spent a collective total of 6.5 hours for his attendances on July 8, 2020, and March 10, 2021. He claims an additional .5 hours for preparing his Bill of Costs. At his substantial hourly rate of $590.00, this results in a charge of $4,130.00 plus $536.90 for HST (13%). Mr. Edwards does not claim disbursements for the motion, which is reasonable, having regard to the fact that he did not file separate material. He therefore claims total costs of the motion in the amount of $4,666.90, which I find to be reasonable.
[37] The plaintiffs did not submit a Bill of Costs for their lawyers’ time, or any evidence of the amount of time the lawyers spent. I therefore have no basis upon which to determine whether the defendants’ lawyers’ time was reasonable by comparison. This court has held, on more than one occasion, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” In Risorto v. State Farm Mutual Automobile Insurance Co., (2003), Winkler J., then a motion judge, stated:
The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter.[^10]
[38] The same reasoning applies when the Court receives submissions from only one party. In the absence of a Bill of Costs from the plaintiffs, there is nothing with which to compare the costs claimed by the defendants.
[39] I find that the time and amounts claimed by the defendants for the motion was consistent with the material they fled and the arguments they made at the hearing. I therefore find that the time claimed is reasonable.
f) Proportionality and the reasonable expectation of the unsuccessful parties
[40] I find that the amount claimed is proportionate to the importance of the motion and the interests at stake. As noted above, there is no evidence with which I can consider whether those amounts are proportionate to the amounts the plaintiffs’ lawyers charged their clients.
2. COSTS OF THE ACTION
[41] The normal presumptions should apply to the costs of the action, apart from the motion for summary judgment. The defendants were successful in the outcome of the action and are entitled to their costs on a partial indemnity scale.
[42] Dr. Tartaro’s lawyer, Mr. Mogil, spent 13.3 hours on the action, excluding the motion (2.9 hours on pleadings, and 10.4 hours on discoveries). I have applied his adjusted maximum partial indemnity rate of $395.00 to the time he spent to arrive at the amount of $5,253.50.
[43] Ms. Sugar spent 47.6 hours on discoveries. I have applied her adjusted maximum partial indemnity rate of $295.00 to this amount to arrive at the amount of $14,042.00. Their Law Clerks spent 23.5 hours on pleadings, 33.3 hours on discoveries, and 2.0 hours to prepare the Bill of Costs, for a total of 67.8 hours. I have applied their adjusted maximum partial indemnity rate of $105.00 to arrive at the amount of $7,229.00.
[44] Based on the foregoing, Dr. Tartaro would be entitled to claim a maximum of $26,524.50 plus HST and disbursements for his costs up to the beginning of the hearing on March 10, 2021. In fact, he claims $24,491.73 plus HST and disbursements. I find that the time his lawyers spent was reasonable, having regard to the nature of the action and the interests at stake. Mr. Mogil’s delegation of tasks to Ms. Sugar and their Law Clerks and Students was reasonable, and likely resulted in a net cost saving, their lower hourly rates off-setting the greater amount of time they may have spent.
[45] I am adding 3.5 hours of Ms. Sugar’s time, at her hourly rate of $395.00 to account for the time she spent at the hearing of the motion on March 10, 2021. This time was not included in her Bill of Costs, which she filed in advance of the hearing. This adds a further $1,482.50 to her fees, for a total of $28,007.00, which I adjust to $28,000.00, and adjust the HST on her fees accordingly.
[46] I find that the resulting total of $28,000.00 plus HST of $3,640.00 (13%) for Dr. Tartaro’s lawyers’ fees, $3,622.07 for disbursements, and $452.15 for HST on taxable disbursements, is reasonable and proportionate.
[47] The Clinic’s lawyer, Mr. Edwards, spent 5 hours on pleadings, 33.5 hours on discoveries, and .5 hours for his bill of Costs, for a total of 39 hours. At his partial indemnity hourly rate of $395.00, this translates to $15,405.00. I find that this amount, plus HST of $2,002.69 (13%) is reasonable and proportionate.
CONCLUSION AND ORDER
[48] For the foregoing reasons, it is ordered that:
- The plaintiffs shall pay Dr. Tartaro’s costs of the motion in the amount of $10,456.55, consisting of the following:
a) Fees: $ 8,719.00
b) HST: $ 1,133.47
c) Disbursements: $ 534.58
d) HST: $ 69.50
TOTAL: $ 10,456.55
- The plaintiffs shall additionally pay Dr. Tartaro’s costs of the action, excluding the motion, in the amount of $32,095.66, consisting of the following:
a) Fees: $ 24,797.73
b) HST: $ 3,223.71
c) Disbursements: $ 3,622.07
d) HST: $ 452.15
TOTAL: $ 32,095.66
- The plaintiffs shall pay to York Diagnostic Centre its costs of the motion in the amount of $4,666.90, consisting of the following:
a) Fees: $ 4,130.00
b) HST: $ 536.90
TOTAL: $ 4,666.90
- The plaintiffs shall additionally pay to York Diagnostic Centre its costs of the action, apart from the motion, in the amount of $17,184.48, consisting of the following:
a) Fees: $ 15,207.50
b) HST: $ 1,976.98
TOTAL: $ 17,184.48
- This Endorsement shall bear interest at the post-judgment rate of .07%.
(Signature of Judge)
Price J.
Released: April 6, 2021
COURT FILE NO.: CV-15-4725-00 DATE: 2021 04 06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PARIS PEREKEME ODEDE and LORINE ODEDE Plaintiffs/Respondents to the Motion
- and -
DR. PIERO TARTARO and YORK DIAGNOSTIC CENTRE Defendants/Moving Parties
COSTS ENDORSEMENT
Price J.
Released: April 6, 2021
[^1]: Odede v. Tartaro, 2021 ONSC 1845. [^2]: George v. Landles, 2012 ONSC 6608, at paras. 4-6. [^3]: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). Murano v. Bank of Montreal, (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 at p. 244 (C.A.), citing 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992), 7 C.P.C. (3d) 15 at p. 17 (Ont. Gen. Div), per Blair J. [^4]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.). [^5]: Smyth v. Waterfall (2000), 2000 16880 (ON CA), 50 O.R. (3d) 481 (C.A.). [^6]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041 at paras. 7 and 11-16. [^7]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid. [^8]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359. [^9]: Available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/. [^10]: Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird & Berlins LLP (2009), 2009 26608 (ON SC), 74 C.C.E.L.(3d) 243, at paras. 10-17 (Ont. S.C.).

