Court File and Parties
COURT FILE NO.: CV-16-70619 DATE: 2022/12/07 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Klinck by his Litigation Guardian Joel Klinck, and Joel Klinck, Sara Klinck, Gregory Koenderman and Sherri Lane, Plaintiffs
AND
Ms. Melissa Dorsay, Marcia Pribylousky, Joanne Rack, Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, Dr. Pradeep Pranlal Merchant, The Midwifery Collective of Ottawa and The Ottawa Hospital, Civic Campus, Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: J. Arthur Cogan, K.C., for the Plaintiffs Anita M. Varjacic, for the Defendants Melissa Dorsay, Joanne Rack, and The Midwifery Collective of Ottawa Donald J. Dow and Brieanne Brannagan, for the Defendants Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, and Dr. Pradeep Pranlal Merchant
HEARD: In writing
COSTS ENDORSEMENT
Introduction
[1] This is my decision on costs of the motion to vary and settle the terms of my September 24, 2021 order. On September 24, 2021, I granted the motions of the midwife defendants and the physician defendants for an order requiring Andrew Klinck and his biological parents to attend independent medical examinations for the purpose of providing blood samples for specific genetic testing: Klinck v. Dorsay, 2021 ONSC 6285, at para. 102. The parties agreed that costs of these motions would be payable in the amount of $25,000 to each of the moving parties in the cause.
[2] When the parties were unable to settle the terms of my September 24, 2021 order, the midwife defendants and the physician defendants moved to vary the order and settle its terms. Two days were set aside for the hearing of the motion. Ultimately, the parties were able to agree on a number of issues: they agreed to substitute Blueprint Genetics as the laboratory to conduct the genetic testing and they agreed to extend the deadline for the plaintiffs to complete the required blood sample collections to November 15, 2022. The midwife defendants and the physician defendants agreed to the plaintiffs’ request that the order be varied to provide that the requisition forms for the genetic testing be provided to plaintiffs’ counsel for review for a 10-day period. They also agreed that the order specify that all documents, including reports and raw data files, be provided to all counsel.
[3] The only issue argued on the motion heard October 11, 2022, was whether the order should include a term that “the report(s) of Blueprint Genetics shall be rule 33.06 and 53.03(2.1) compliant” as requested by the plaintiffs. The midwife defendants and the physician defendants prevailed on this issue: Klinck v. Dorsay, 2022 ONSC 5829.
Positions of the Parties
[4] The midwife defendants and the physician defendants each seek their costs of the motion in the amount of $25,000, payable in the cause. For both, this amount represents a substantial reduction in their costs ($44,683.26 and $49,884.23, respectively) on a partial indemnity basis. The midwife defendants submit that given the circumstances of the plaintiffs and taking into consideration the complexity and novelty of the matters at issue, $25,000 payable in the cause is a fair resolution of costs of the motion. The physician defendants submit that in view of the issues that were resolved by agreement, costs of $25,000 payable in the cause would be appropriate.
[5] The plaintiffs submit that the midwife defendants and the physician defendants should not be entitled to “receive a whole new second set of costs” to make the September 24, 2021 order “effectual and fair.” The plaintiffs, however, go further and submit that it would be unfair to not award costs to the plaintiffs for their success on “this phase” of the proceeding. The plaintiffs’ costs on a partial indemnity basis on the motion to vary and settle the terms of the order are $137,396.70.
Analysis
[6] As the physician defendants put it in their written submissions, this has been a protracted and hard-fought interlocutory proceeding. Three case conferences were required: on March 30, June 3, and July 28, 2022. Two days were reserved for the hearing of the motion, although in the end, only one-half day was required. The plaintiffs conducted cross-examinations on affidavits filed on behalf of the defendants, including two expert witnesses. The defendants elected not to cross-examine the plaintiff’s affiants.
[7] On the sole issue on which the motion proceeded, the midwife defendants and the physician defendants were the successful parties. However, costs attributable to the three settled issues remain in dispute. The plaintiffs say that the need to select an alternative laboratory was not the plaintiffs’ “problem” and that the original form of order proposed by the defendants was ineffective and “not the Plaintiffs doing.”
[8] There is no suggestion that the need to substitute a laboratory for GeneDX is attributable to the plaintiffs. I do, however, reject the plaintiffs’ submission that the need for a substitute laboratory should be laid at the feet of the defendants. Contrary to the plaintiffs’ submission, there was evidence in the record that around December 8, 2021, counsel for the defendants were advised by GeneDX that due to a recent policy change, Gene DX would no longer perform genetic testing for legal cases. Whether the Rules of Professional Conduct were violated by counsel for the physician defendants as alleged by the plaintiffs is a question for the Law Society of Ontario, not this court in determining costs of the motion to vary and settle the order.
[9] I also note that the plaintiffs initially challenged Blueprint Genetics’ suitability by way of a cross-motion. Their agreement to substitute Blueprint Genetics for GeneDX occurred only after cross-examinations were conducted.
[10] The midwife defendants and the physician defendants agreed to variations to the order proposed by the plaintiffs to provide for pre-testing disclosure of the requisition forms to plaintiffs’ counsel and to provide that reports and raw data files be provided to all counsel. It is to the credit of all parties that they were able to settle these two matters.
[11] On the sole remaining issue that was argued before me, the midwife defendants and the physician defendants were successful. I rejected the plaintiffs’ position that the order should require that Blueprint Genetics’ reports be r. 33.06 and r. 53.03(2.1) compliant because r. 33.06 does not apply to the laboratory conducting the tests and r. 53.03 has no application at this stage of the proceedings.
[12] In my view, the midwife defendants and the physician defendants are entitled to their costs of the motion to vary and settle the terms of the order, in an amount proportionate to the single issue that proceeded to argument on the motion. Costs of this motion should also be proportionate to the amount for which the parties agreed to settle the substantive motion. That it was the plaintiffs who proposed the variations to address pre-testing disclosure and the provision of reports and raw data files is counterbalanced by the fact that the plaintiffs’ agreement to substitute Blueprint Genetics came only after cross-examinations. There is no issue taken with the hourly rates charged by counsel.
Disposition
[13] Having regard to these considerations, I conclude that it would be fair and reasonable for costs of the motion to vary and settle the order to be payable in the amount of $12,500 to each of the moving parties in the cause. So ordered.
Madam Justice Robyn M. Ryan Bell
Date: December 7, 2022
COURT FILE NO.: CV-16-70619 DATE: 2022/12/07
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Andrew Klinck by his Litigation Guardian Joel Klinck, and Joel Klinck. Sara Klinck, Gregory Koenderman and Sherri Lane, Plaintiffs
AND
Ms. Melissa Dorsay, Marcia Pribylousky, Joanne Rack, Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, Dr. Pradeep Pranlal Merchant, The Midwifery Collective of Ottawa and The Ottawa Hospital, Civic Campus, Defendants
COUNSEL: J. Arthur Cogan, Q.C., for the Plaintiffs Anita M. Varjacic, for the Defendants Melissa Dorsay, Joanne Rack, and The Midwifery Collective of Ottawa Donald J. Dow and Brieanne Brannagan, for the Defendants Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, and Dr. Pradeep Pranlal Merchant
COSTS ENDORSEMENT
Justice Ryan Bell
Released: December 7, 2022