Court File and Parties

COURT FILE NO.: CV-16-00000517-0000 DATE: 20210910

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AMANDA JAMES ANDREWS, and KERI ANN BAKER, personally and as Estate Trustees of the Estate of LINDA GORDON, WILLOW MAY BAKER, TOBIN BRYON BAKER and VIOLET GRACE BAKER, all by their Litigation Guardian JEFFERY ROBERT BAKER, SARA NICOLE ANDREWS and EMILY LYN ANDREWS

Plaintiffs/ Responding Party

– and –

DR. LESLIE PATTISON

Defendant/ Moving Party

Counsel: Barbara A. MacFarlane and Joni Dobson, for the Plaintiffs/ Responding Party John A.M. Petrella and Andrea H. Plumb, for the Defendant/ Moving Party

HEARD: In writing

COSTS ENDORSEMENT

MCcarthy J.:

[1] The Court granted the Defendant’s summary judgment motion dismissing the action on July 5, 2021.

[2] The parties filed written submissions on the issue of costs for both the motion and the balance of the action.

[3] The Defendant seeks $117,413.06 for costs inclusive of disbursements and HST. That sum includes a claim for $99,466.20 in fees.

[4] The Plaintiffs do not dispute that the Defendant is presumptively entitled to costs but suggest that the court should exercise its discretion to order reduced costs.

[5] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 affords the court discretion in determining by whom and to what extent costs in a proceeding shall be paid. Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out factors a court may consider in determining costs.

[6] I note that in this case the Defendant served an offer to settle on the Plaintiffs well in advance of the return date of the motion for a dismissal of the action on a without costs basis.

[7] The request for summary judgment was based entirely upon the assertion that the Plaintiffs’ action was statute barred by operation of the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act”).

[8] After careful consideration of the underlying facts and the law, the Court determined that more than two years had elapsed since the discovery of the claim by the time the Plaintiffs’ claim was issued. The operation of s. 4 of the Act served to bar the Plaintiffs’ claim from proceeding; there was no genuine issue requiring a trial of that issue. A dismissal of the action was the appropriate remedy.

[9] The action itself was of moderate complexity—medical malpractice cases are seldom straightforward. The motion for judgment, although limited to the discrete issue of the discovery of a cause of action and the impact of the limitation period, was also moderately complex as it required a detailed evidentiary record, factual findings and a consideration of an extensive body of law.

[10] The issue in question was certainly an important one. Regardless of its merits, the Plaintiffs’ entire action was stymied by the effect of the limitation period.

[11] The preparation and presentation of the competing arguments at the motion were of the highest quality on both sides. In light of the repercussions of a finding that the Plaintiffs’ claim was statute barred, there was little chance for divided success. That did not however serve to foredoom one side to success and the other to failure. There was nothing unreasonable in the position taken by the Plaintiffs in responding to the Defendant’s motion. Nor am I persuaded that there was anything in the conduct of the action by the Plaintiffs which served to unreasonably prolong the proceeding. The Defendant has already been compensated for its costs incurred for the undertakings and refusals motion. The action did not advance to the pre-trial or trial preparation stage. It is impossible to know whether the Plaintiffs would have succeeded on all or part of their claim. Certainly, there was no suggestion that their claim was frivolous or vexatious.

[12] Costs must be proportionate to the result, to the amount claimed and recovered and to the importance of the issues. On the other hand, access to the administration of civil justice, even for unsuccessful parties, cannot be wrought with such disastrous costs consequences that the average person faces financial ruin if she fails to succeed in advancing a legitimate, if ultimately unsuccessful, claim.

[13] The Court is granted a wide discretion in granting costs precisely because each case needs to be considered on its merits, its history, and the conduct of the parties throughout. Indeed, pursuant to r. 57.01(i), the court is invited to consider, “any other matter relevant to the question of costs.” I am aware of no authority which suggests that this is a closed category.

[14] In the case at bar, the Plaintiffs suffered the loss of a family member, perhaps the greatest loss any person can suffer. There was a concern about the role that a medical practitioner had to play in their death and an even more pressing concern about whether a delayed cancer diagnosis caused or accelerated that family member’s death. The evidence would suggest that the Plaintiffs took a considerable period to arrive at the decision to issue a claim. Whether this was done out of uncertainty, reluctance, or caution is known only to them. The sad irony is that it was this failure to act while the limitation period was running which spelt the demise of the claim. It can hardly be said that they acted with blind haste or irresponsibly launched a baseless claim which had no chance of success.

[15] A limitation period is no technicality to be sure; both the public and the actors in the justice system have an interest in having matters prosecuted in a timely fashion. Nonetheless, there is something quite different about a claim being defeated by expiration of time as opposed to being dismissed after full adjudication; the latter is determined on its merits; the former is still born. I find it highly unlikely that a reasonable person who has had her claim dismissed for being out of time would take any consolation in a belief that she had her day in court.

[16] This does not of course, make much difference to the Defendant. Nor should it. The principle of indemnity is not conducive to a moral gloss. The Defendant here has incurred much the same expense as he would have had the relief obtained been granted based on a lack of evidence as opposed to the expiration of a prescription period.

[17] Turning to the bill of costs presented by the Defendant, I find that nearly 388 hours of lawyer time is an excessive amount of time to claim for the preparation and bringing of the motion and for the prosecution of the action to that point. Assuming an 8-hour workday (net of lunch and health breaks), this equates to 48.5 working days. The issue of the limitation period was hardly novel. The factual history of the matter relevant to that issue was not overly extensive. While I appreciate that preparing for and conducting of examinations for discovery would have been both demanding and time consuming, I cannot ignore that this matter remained quite distant from any trial date when it was dismissed. I highly doubt that there would have been any serious trial preparation.

[18] While the Defendant must certainly recover significant costs, I am not persuaded that the amount sought for fees is reasonable, proportionate, or fair in all the circumstances. I find that the amount of $60,000 for fees, net of HST, represents a fair and reasonable amount to award the Defendant. HST on that award is $7,800. There was no specific objection to the claimed disbursements. In any event, they appear to be reasonable and warranted. I would allow them in the claimed amount of $4,575.25 inclusive of HST.

[19] For the foregoing reasons, the Plaintiffs shall pay to the Defendant their combined costs of the motion and the action fixed and payable forthwith in the amount of $72,375.25.

McCarthy J.

Released: September 10, 2021