Court File and Parties

COURT FILE NO.: CV-16-226

DATE: 2021 08 16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Sauvé, Plaintiff

AND:

Anthony Steele and Duff Contracting Ltd., Defendants

BEFORE: Mills J.

COUNSEL: B. Rumble, for the Plaintiff T. Horton, for the Defendants

COSTS ENDORSEMENT

[1] This cost endorsement follows the trial judgment delivered June 3, 2021. The defendants were successful, and the plaintiff’s claim was dismissed. The defendants are presumptively entitled to their costs of the proceeding.

[2] Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered in exercising my discretion to award costs. They include the complexity and importance of the matter, the conduct of a party including a party’s denial or refusal to admit anything, any offers to settle and the principle of proportionality. In this regard, the amount of time spent and the hourly rates charged are to be considered together with the amount that a losing party would reasonably expect to pay.

[3] The defendants served an Offer to Settle on January 15, 2021 in the amount of $50,000 for all damages, inclusive of interest, plus costs, assessable disbursements and HST. I do not accept the plaintiff’s submission that the Offer fails to comply with Rule 49. The Offer provides the payment was in respect of all damages including interest. The Offer is sufficiently certain and understandable to constitute a valid Rule 49 offer. The Offer was made just two months prior to the commencement of trial so the interest component did not have a substantive impact on the quantum of damages for which compensation was being offered. The Offer can therefore be distinguished from that in the case of Mayer v. 1474479 Ontario Inc. (2014 ONSC 2622, at para. 113). By the time of the defendant’s Offer, the parties knew they were proceeding to trial in just a few weeks time and the pre-judgment interest had already accrued.

[4] The Plaintiff delivered Offers to Settle dated January 11, 2021 and March 12, 2021, respectively in the amounts of $540,000 and $300,000, plus costs, assessable disbursements and HST. The action was dismissed. The plaintiff failed to meet the threshold and I found he had already been appropriately compensated for his loss of income. The plaintiff recovered nothing more than had already been paid by his employer and his insurer.

[5] The outcome of the trial was less favourable to the plaintiff than the Offer delivered by the defendants. The defendants are therefore entitled to partial indemnity costs to the date of their Offer, and substantial indemnity costs from January 15, 2021 to the conclusion of the trial (S. & A. Strasser Ltd. v. Richmond Hill (Town of), 1990 CanLII 6856 (ON CA), 1 O.R. (3d) 243).

[6] The defendants have submitted a Bill of Costs which indicates a total for legal fees as $242,878.21 including HST, being the “legal fees invoiced” (presumably to the client). The individuals, their year of call and their billing rate are identified, and the time each person spent on the matter is listed. The billing rates for the defendants’ trial counsel are reasonable having regard to their respective years of call; the billing rates for the law clerks appear inflated from what would be expected. There is no description of the services rendered nor is there an allocation for time spent on any given step or stage in the proceeding. The supporting dockets have not been provided. I am left with no basis upon which to ascertain if the fees are reasonable or proportionate in the circumstances.

[7] There is no itemized list of disbursements being claimed nor have invoices been provided. There is no evidence to support the claim for disbursements, including the expert fees of Mr. Gary Phelps.

[8] The defendants submit an all-inclusive payment of $175,000 for fees, interest, disbursements and HST is appropriate and represents a fair and proportional cost award. The plaintiff submits that no costs should be awarded due to the deficiencies in the Bill of Costs or in the alternative, costs should be fixed in the $50,000 to $70,000 range as being reasonable, given the paucity of information provided.

[9] The trial lasted nine days. The defendants were represented by two counsel throughout the trial, as was the plaintiff. I accept the defendants’ submission that the majority of time on this matter was incurred in the lead up to and attendance at the trial, subsequent to the Offer being served. This would therefore be recoverable on a substantial indemnity basis, if it could be properly identified and quantified. Based on the materials filed by the defendants, it can not.

[10] I am therefore left to exercise my discretion pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43, imposing what I view to be fair and reasonable in the circumstances.

[11] Although the defendants failed to admit liability, they did not make any submissions or call any witnesses to suggest they were not responsible for the events which caused the plaintiff’s motor vehicle incident. Little to no time was taken up at trial with respect to liability. The vast majority of the trial was about the injuries the plaintiff claimed to have sustained and the loss of income he purportedly suffered. Most of the testimony and evidence about the scene of the incident addressed the plaintiff’s claim to have been electrocuted rather than who or what caused the overhead wires to fall across the road. I am not inclined to penalize the defendants for failing or refusing to expressly admit liability.

[12] The voir dires with respect to two of the plaintiff’s medical experts resulted in mixed success with Dr. Yanover being qualified as a litigation expert and Dr. Giammarco being limited to a participant expert. Both parties can be accused of unnecessarily prolonging the duration of the proceeding. This is a neutral consideration. Otherwise, the parties conducted themselves reasonably in all circumstances.

[13] The proceeding was not particularly complex, although it involved an unusual set of facts. The medical evidence was voluminous. The expert evidence respecting loss of income was straightforward and both experts agreed on the methodology for calculating the loss of income, if not the end result.

[14] The plaintiff sought $1,000,000 in pecuniary and non-pecuniary losses; his wife’s claim was abandoned prior to the commencement of trial. In the end, the plaintiff recovered nothing from the lawsuit, despite the defendants being fully liable for the events giving rise to the motor vehicle incident.

[15] In my view, having examined the various Rule 57.01 factors and based on the limited information before me, a fair and reasonable award of costs for the defendants is $120,000. This is an amount that should be within the reasonable expectation of an unsuccessful litigant following a nine-day trial for a matter that took approximately five years to come to trial, and for which an Offer to Settle had not been accepted. Having regard to the complexity of the matters in issue and the quantum of the claims asserted, this cost award is proportionate to the importance of the proceeding to the parties.

[16] An order shall go awarding the defendants $120,000 in costs, inclusive of fees, disbursements and HST, payable by the plaintiff within sixty (60) days.

Justice J.E. Mills

Date: August 16, 2021