Court File and Parties

COURT FILE NO.: 00-CV-199551

DATE: 2021-06-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs

– AND –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Joel Rochon, Peter Jervis, Golnaz Nayerahmadi. Adam Babiak, Matthew Taylor, and Karine Bédard, for the Plaintiffs

William Black, Sam Rogers, Meghan Bridges, and Bonnie Greenaway, for the Defendants, Elliot Thompson Barker and Gary J. Maier

Sarah Blake and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] After 21 years of litigation and a 71-day trial, judgment in the liability phase of this trial was rendered on June 25, 2020 and judgment in the damages phase was rendered on February 8, 2021. I found both sets of Defendants liable in different combinations and in different amounts to each of the 28 Plaintiffs. In the aggregate, the Plaintiffs were awarded damages of just under $10,000,000.

[2] All three sets of counsel have now provided me with rather fulsome submissions on costs. The Plaintiffs seek a total of just short of $8.5 million on a substantial indemnity basis or $5.3 million on a partial indemnity basis. These amounts reflect all stages of the litigation since its inception in 2000.

[3] Both sets of Defendants contend that there is no basis for awarding costs on a substantial indemnity scale. They also submit that the Plaintiffs’ request on a partial indemnity scale is unjustifiably high. Counsel for the Defendants, Elliot Thompson Barker and Gary J. Maier (the “Doctors”), state that their partial indemnity costs since 2000 come to a total of $4.4 million, while counsel for the Crown state that their partial indemnity costs since 2000 come to just over $2.6 million.

[4] Turning first to the scale of costs, the Supreme Court of Canada said in Young v. Young, [1993] 4 SCR 3, at para. 260, that the substantial indemnity scale of costs is applicable where the successful side can demonstrate “reprehensible, scandalous or outrageous conduct” by its opponent. As a further point along those lines, the Court of Appeal in Foulis v. Robinson (1978), 21 OR (2d) 769, 776 issued a warning against a trial judge awarding costs on an elevated scale because the parties did not settle, or as a vehicle for second-guessing how a trial should be conducted.

[5] In general, substantial indemnity costs are not to be awarded out of sympathy with the successful party’s cause; rather they are reserved for use as a mark of disapproval of the unsuccessful parties’ conduct of the litigation: Mortimer v. Cameron (1994), 17 OR (3d) 1, 23 (Ont CA). The elevated scale therefore signals outrageous conduct, not just a hard-fought trial: Prinzo v. Baycrest Center for Geriatric Care (2002), 60 OR (3d) 474, at para. 76 (Ont. CA).

[6] In my view, there was no such outrageous conduct by either set of Defendants. They did mount a vigorous defense, but one would expect nothing less given the tens of millions of dollars and the far-reaching allegations claimed against them, including comparing them to Nazi-style medical experimentation and the genocidal aspects of Canada’s residential schools. I do not say this to detract from the Plaintiffs’ claims, but rather to better contextualize the Defendants’ responses. Although there were numerous contests over production, admissibility of evidence, qualification of expert witnesses, etc., the defenses were never reprehensible in the way envisioned by the appellate courts when discussing an elevated scale of costs.

[7] I concluded my reasons for judgment on damages by remarking on all three sets of counsels’ “lawyering skills, and their overall professionalism and good temperament in a lengthy and complex case”: Barker v. Barker, 2021 ONSC 158. at para. 945. I meant what I said. One does not conduct a lengthy and complicated trial like this and earn the trial judge’s great appreciation for the atmosphere of professionalism in which it was conducted, only to have substantial indemnity costs awarded in the result. All counsel, for Plaintiffs and Defendants, were vigorous in putting forward their clients’ respective positions, but were civil and entirely appropriate in doing so.

[8] I do understand why Plaintiffs’ counsel may feel that they had to work particularly hard to earn the damages ultimately awarded; the action has gone on for two decades and their clients’ compensation is a long time coming. But the challenges they overcame en route were all a legitimate part of the adversarial process.

[9] In fact, the Plaintiffs were not especially successful in a number of important pre-trial stages, including a failure to have the case certified as a class action and a failure to have the Court of Appeal affirm summary judgment. Their ultimate success at trial is to Plaintiffs’ counsel’s credit, but one cannot fault Defendants’ counsel for having battled the claim all the way to trial. The result was by no means a foregone conclusion. Although the case itself was an unusual one in its subject matter, the way that it was conducted merits nothing more than the usual partial indemnity scale of costs.

[10] As for the quantum of partial indemnity costs requested by Plaintiffs’ counsel, the Doctors and the Crown both point out that the Plaintiffs’ calculation includes interlocutory matters that have already been dealt with by the Court. Generally speaking, parties cannot revisit the costs awarded at a motion once the case has gone to trial: Kuehne + Nagel Inc. v. Harman Inc., 2021 FC 26, at para. 44. Plaintiffs’ counsel’s submissions suggest, however, that in the unusual circumstances of this case, the costs award should deviate from that rule.

[11] As a matter of course, “[i]t may be taken for granted that, if the order disposed of the costs one way or the other, there was no intention and no power, to alter such disposition of them. That is to say, the trial Judge could not deal with them as if hearing an appeal against the order”: Dickerson v. Radcliffe (1900), 19 PR 223, 224 (Ont HC), cited approvingly in Turner-Lienaux v Campbell, 2004 NSCA 41, at para 40. Having said that, the Court of Appeal indicated in Polish National Union of Canada Inc - Mutual Benefit Society v Palais Royale Ltd (1998), 163 DLR (4th) 56, that a top up is potentially available where partial indemnity costs were awarded at the conclusion of an interlocutory motion but substantial indemnity costs are awarded for the entire action at the conclusion of trial. This limited exception to the general rule that costs of a motion decided prior to trial are not revisited following the trial is not applicable here. As already indicated, the partial indemnity scale is the appropriate scale to be applied throughout this case.

[12] Furthermore, as part of their Bill of Costs, Plaintiffs’ counsel seek some $75,000 for reimbursement of document production costs, being their portion of the costs of producing digitized copies of the Plaintiffs’ medical records. As the Doctors’ counsel point out, this expense was dealt with in a motion decided on April 24, 2007, where the Court ordered the parties to share the costs of electronic document production on a three-way basis. In his unreported decision now reproduced in the Doctors’ materials, Justice Cullity specifically directed the Plaintiffs “to pay one-third of the costs of scanning and coding the productions of the Crown and the Defendant Physicians”. That apportionment of the production expense was not contingent or subject to adjustment depending on the result at trial. It was ordered in an effort to facilitate this action getting to trial, and it turns out to have contributed greatly to the result for which it was designed.

[13] Counsel for the Doctors have calculated what they view as the appropriate deductions from the partial indemnity claim contained in the Plaintiffs’ Bill of Costs. Those deductions are presented as eliminating the compounding of costs already determined in interlocutory proceedings. On this basis, the Plaintiffs’ partial indemnity costs would come to $4.6 million. Counsel for the Crown supports this approach to the Plaintiffs’ costs request.

[14] While I accept the Defendants’ methodology, it seems to me that the Doctors’ counsel has deducted more than necessary. Reviewing the Bill of Costs submitted by Plaintiffs’ counsel, there is roughly $360,000 in fees that are attributable to the several interlocutory motions where costs are not in issue here. These include the motion to continue as a multi-party proceeding, the motion to amend the claim, the Defendants’ summary judgment motion, the Plaintiffs’ own summary judgment motion, and a refusals motion. In addition, there is the $75,000 documentary production disbursement discussed above as well as roughly $10,000 in transcript fees and other disbursements that appear to be related to interlocutory motions.

[15] Costs are always discretionary under section 133 of the Courts of Justice Act. Most importantly, under Rules 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure, the quantum of costs should reflect the principles of compensation for the successful party and non-surprise for the unsuccessful parties.

[16] I will deduct rounded-off versions of what I perceive as the overcalculation by Plaintiffs’ counsel (plus an amount reflecting HST thereon). Given that I have followed the Defendants’ preferred methodology (with some relatively small adjustments and some rounding of figures), and the Defendants themselves have followed the Plaintiffs’ own Bill of Costs (again, with adjustments), this costs ruling should not take anyone by surprise.

[17] The Defendants, jointly and severally, shall pay the Plaintiffs the all-inclusive amount of $4,900,000 in costs.

Morgan J.

Date: June 1, 2021