Court File and Parties

COURT FILE NO.: 07-CV-341402PD1

MOTION HEARD: 20210512

INTERIM ENDORSEMENT RELEASED: 20210517

REASONS RELEASED: 20210613

COSTS SUBMISSIONS FILED: 20210721 and 20211118

COSTS SUBMISSIONS RELEASED: 20211203

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SHAUN EDWARDS

Plaintiff

• and-

JOHN R. MCCARTHY, EDWARD BERGERON, STEVEN RASTIN and CHRIS CLIFFORD, carrying on business under the firm name and style as MCCARTHY, BERGERON, RASTIN, CLIFFORD LLP

Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: J. Pedro -for the Defendants E-mail: jpedro@rachlinlaw.com

D. Wilson -for the Plaintiff E-mail: dswilson@davidswilsonlaw.com

COSTS ENDORSEMENT RELEASED: December 3, 2021

Costs Endorsement

[1] The Defendants brought a motion to compel the Plaintiff to attend orthopaedic and psychiatric assessments. By Interim Endorsement dated May 17, 2021 and Reasons For Endorsement dated June 13, 2021 (Edwards v. McCarthy, 2021 ONSC 4270)(the “Reasons”), the Plaintiff was ordered to attend a virtual psychiatric assessment and an in-person orthopaedic assessment. The Defendants seek their costs of the motion.

[2] The parties first appeared before me on April 14, 2021. At that time, the Defendants were seeking an order compelling the Plaintiff to attend an in-person examination by Dr. Joel Finkelstein, an orthopaedic surgeon, on May 19, 2021 at Sunnybrook Health Sciences Centre in Toronto and an in-person examination by Dr. Patricia Rosebush, a psychiatrist, on May 26, 2021 at St. Joseph’s Healthcare in Hamilton. The Plaintiff’s position throughout was that a paper assessment of his existing medical records was sufficient and that due to the heightened concerns with the ongoing COVID-19 pandemic, the distance he would have to travel and other personal circumstances, if ordered, the assessments should be conducted virtually.

[3] On April 8, 2021, 6 days prior to the first attendance, due to increased cases and Intensive Care Unit capacity, the Province of Ontario implemented a Stay-At-Home Order. The Stay-At-Home Order was initially set to expire on May 19, 2021 and ultimately extended to June 2, 2021. Given the request for in-person examinations and the rapidly evolving situation with the pandemic, I adjourned to the motion to May 12, 2021.

[4] Upon returning on May 12, 2021, to address concerns related to COVID-19, the Defendants advised that they were prepared to have the Plaintiff attend an in-person orthopaedic assessment conducted by Dr. Jeremie Larouche, a colleague of Dr. Finkelstein at Sunnybrook, on July 13, 2021 and a virtual psychiatric assessment with Dr. Zohar Waisman on May 25, 2021. As set out in the Reasons, the Plaintiff was ordered to attend these assessments.

[5] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising its discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[6] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The general rule is that costs on a partial indemnity scale should follow the event except for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[7] The Defendants seek costs of $11,808.34 on a partial indemnity scale. The Plaintiff submits that no costs should be awarded, or alternatively, $1,000 on a partial indemnity scale.

[8] In my view, there is no reason to depart from the general rule that the Defendants are entitled to costs on a partial indemnity scale reflective of their success on the motion. I am satisfied that the most relevant factors are the conduct of the parties that unnecessarily lengthened the duration of the proceeding (Rule 57.01(1)(e)) and whether any steps taken were unnecessary (Rules 57.01(1)(f)). In this regard, the Plaintiff opposed any examination, even a virtual one in order to address the concerns raised by the pandemic. At the same time, I must also take into consideration that the Defendants initially sought in-person assessments with both doctors, amending the in-person psychiatric assessment to a virtual one at the second attendance.

[9] The Plaintiff concedes that had it not been for the conduct of Defendants’ counsel, the Defendants would generally be entitled to costs. The Plaintiff further submits that if the only issue was the reasonable amount expended on the motion, the Defendants would be entitled to a maximum of $5,000 plus HST and disbursements.

[10] The conduct of Defendants’ counsel which the Plaintiff complains of relates to the timing of service of the Defendants’ motion materials. Defendants’ counsel filed a motion requisition form with a proposed timetable indicating that the Defendants’ motion materials were to be filed by March 12, 2021 with service of the Plaintiff’s responding materials by March 26, 2021. The Plaintiff amended the timetable to provide for service of the Defendants’ materials by February 26, 2021. The Defendants did not object, but say they did not agree, and in any event, served their materials on March 29, 2021, beyond the dates in both timetables.

[11] I disagree with the Plaintiff that the issue with the timetable with respect to the service of the Defendants’ materials calls for an order of no costs. Notwithstanding the disputes over the timetable, the Defendants served their motion materials 10 days prior to the initial return of the motion and offered to adjourn the motion. The Plaintiff declined. The motion was adjourned by the court in any event and contrary to the Plaintiff’s concerns about possible delay in scheduling a new motion date, the motion proceeded less than a month later.

[12] However, I do agree with the Plaintiff that the amount sought by the Defendants is not fair and reasonable in the circumstances, in particular, the time claimed: 46.1 hours for motion preparation and 18.7 hours for motion attendance and preparation. In the Plaintiff’s Costs Outline, the Plaintiff indicates that he would have sought $6,978.78 if successful on the motion.

[13] Having reviewed the Costs Outlines and considered the relevant factors, I conclude that it is fair and reasonable in the circumstances for the Plaintiff to pay costs to the Defendants fixed in the amount of $7,000 on a partial indemnity scale within 30 days.

Costs Endorsement Released: December 3, 2021

Associate Justice McGraw