Tryon v. Packham 2022 ONSC 7210

COURT FILE NO.: CV-16-57301

DATE: 20221220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Charles Tryon and Denise Tryon

Plaintiffs

– and –

Craig Packham

Defendant

Angus Smith and Madison Veinotte, for the Plaintiff, Denise Tryon

William J. Jesseau, for the Defendant

HEARD: In Writing

COSTS DECISION

Justice l. sheard

Overview

1The plaintiff’s claim was tried by a jury. The 13-day trial began on September 19, 2022 and ended on October 6, 2022. The jury concluded that the defendant was not negligent for the accident and the plaintiff’s claim was dismissed.

2The parties were encouraged to settle the issue of costs, failing which, they were permitted to make written costs submissions. In making this costs decision, I have considered the parties’ written submissions, and the applicable law.

Positions of the Parties

3The defendant seeks his partial indemnity costs of the action in the total amount of $140,109.10 broken out as follows: $96,716 for legal fees and trial attendance plus disbursements of $43,393.10.

4The plaintiff submits that the amount sought by the defendant is unreasonably high and that the defendant’s costs should fixed at $100,000.00.

The Law

5Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”) gives the court the discretion to determine by whom and to what extent costs are to be paid. Costs are discretionary and, in the exercise of that discretion, the court is to consider the factors set out in r. 57.01

6In civil litigation, costs usually follow the event. That rule should not be departed from except for very good reasons: see Gonawati v. Teitsson 2002 41469 (ONCA), [2002] CarswellOnt 1007 (Ont. C.A.)], 2002 41469 and Macfie v. Cater, 1920 401 (ON SC), [1920] O.J. No. 71 (H.C.J.) at para 28): Usanovic v. La Capital Life Ins., 2016 ONSC 5795, at para. 7.

7In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (Ont. S.C.J.), Perell J. reformulated the purposes of the modern costs rules, at para. 10, as follows:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.

8Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26 and 38.

9A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4: Fehr et al. v. Sun Life Assurance Company of Canada, 2021 ONSC 8368, at para 83).

Disbursements Claimed by Defendant

10In most cases, when a defendant’s vehicle rear-ends a plaintiff’s vehicle, liability would rest with the defendant. In this case that did not happen. This was one of those rare instances in where liability hinged upon a determination of whether the defendant was negligent when the vehicle he was driving rear-ended the plaintiff’s motor vehicle.

11The defendant relied on the defence of inevitable accident. He admitted that he rear-ended the plaintiff’s vehicle but denied liability for the accident on the basis that he lost control of his vehicle by reason of a sudden medical event – one that he could not have predicted or anticipated.

12The defence raised by the defendant placed the onus on him to show that his sudden seizure caused the accident; that it was reasonable for him to be driving; and that he had no reason to anticipate the onset of the seizure, which caused him to lose control of his vehicle.

13As noted, the defendant was successful in his defence. In part, the defendant seeks reimbursement of the expert fees he incurred to meet this onus. He also seeks reimbursement of the disbursements usual to litigation such as fees incurred for examinations for discovery and transcripts; process servers; travel to and from Toronto and Hamilton during the trial; and court filing fees.

14When assessing whether the disbursements claimed by the defendant are reasonable, I have regard for the fees charged by the plaintiff. She reports disbursements of $58,657.25. Similar to the disbursements claimed by the defendant, the plaintiff lists fees paid to experts; for travel; and the usual litigation costs related to examinations for discovery, etc. After the accident, the plaintiff relocated from Ontario, where she had started her action, to Newfoundland. She changed lawyers.

15The plaintiff’s lawyers practise out of Nova Scotia. The trial was a hybrid jury trial that took place in Hamilton, Ontario. Consequently, plaintiff’s counsel were required to travel and seek temporary accommodation in this province.

Disposition: Disbursements Claimed by defendant

16Given the issues at trial; the similarity in the nature of the disbursements incurred by the parties; and the fact that the plaintiff’s disbursements exceeded the defendant’s disbursements by approximately $15,000, I find that the disbursements claimed by the defendant to be reasonable and fair.

17For the reasons set out, I exercise my discretion to award the defendant his disbursements in the full partial indemnity amount claimed: $43,393.10.

Fees Claimed

18When exercising my discretion under s. 131 of the CJA to award costs, I must consider the factors set out under r, 57. 01, beginning with a consideration of any offers to settle or contribute made in writing.

19The plaintiff asserts that the defendant made no offers except to settle her claim on a without costs basis, leaving the plaintiff with no alternative but to take her claim to trial.

20The defendant defends his position on the basis that he was consistent throughout the litigation: he would not offer any payment to the plaintiff to resolve the claim except to dismiss the action without costs. His position was based on the defendant’s assessment of his defence, the merits of the plaintiff’s case, and the lack of evidence to support her claim.

21I do not accept the refusal to offer to make a payment to the plaintiff as a basis to deny the defendant his costs.

22In making that determination, I agree with and adopt the reasoning of Firestone J. in Lakew v. Munro, 2014 ONSC 7316 at paras 63 and 64, that there is no obligation on the defendant to offer to make a payment to the plaintiff and that the plaintiff did have the option of agreeing to a dismissal of her claim without costs or “to proceed through trial with full knowledge that if it did not go well she could potentially be responsible for payment…of the defendant’s costs.”

23I now consider the principle of indemnity, which includes a consideration of the experience of the lawyer retained by the successful party, the time spent, and the rates charged. The defendant submitted a Bill of Costs and time summary. The plaintiff submitted a time summary, estimating the time spent as the plaintiff’s lawyers did not keep detailed timesheets.

24For the most part, the lawyers handling this file for the plaintiff were called in 2016 or later. The full hourly rates charged ranged from $300 (lawyer called in 1994) to $170 (called in 2016 or later).

25William Jesseau, the lawyer with carriage of the trial for the defendant, was called in 2002. His full hourly rate is $265 per hour. He was assisted at trial by Fatima Raza, a 2022 Call, whose full hourly rate was $160.00. The defendant seeks payment on a partial indemnity basis, 60% of the full hourly rates.

26I find the hourly rates charged by defence counsel to be comparable to that charged by plaintiff’s counsel for similar years of call. I cannot speak to the usual hourly rates charged by counsel in Nova Scotia, but I have some experience with hourly rates charged by senior counsel in Ontario. I am of the view that the rate charged by Mr. Jesseau is on the very low end of rates charged by counsel of his experience and that the rate charged by Ms. Raza is very reasonable.

27When considering the time spent by counsel, I note that plaintiff and defence counsel have recorded almost identical trial time: 78.7 and 78 hours, respectively. Perhaps the most significant difference in the time spent by defence and plaintiff’s counsel relates to trial preparation; defence counsel spent at least 50 more hours preparing for trial than plaintiff’s counsel. However, that comparison does not lead to the conclusion that defence counsel spent too much time in preparing for trial.

28The defendant submits that due to a lack of evidence, a number of the plaintiff’s heads of damage were not able to be put to the jury. Those included the plaintiff’s claim for past and future income loss, past and future healthcare, and past and future housekeeping costs. These were potentially significant claims, which the defendant had to be ready to defend.

29Rule 57.01 (0.b) requires the court to consider the amount of costs that the plaintiff could reasonably expect to pay. On that factor, consideration is given to the fees that the plaintiff’s counsel incurred, which might have informed her expectations.

30In this case, the plaintiff had a contingency fee retainer with her counsel. The percentage of the contingency fee has not been disclosed to the court.

31The defendant asks the court to consider that the plaintiff’s estimated fees ($59,005.38) and the actual disbursements ($58,657.25) total $117,662.63 - $17,662.63 more than the $100,000 that the plaintiff submits should be awarded to the defendant. The defendant submits that the plaintiff’s submissions limiting the costs awarded to the defendant is artificially low, particularly in view of the plaintiff’s estimate of her own fees, and the disbursements she actually incurred. I find the defendant’s submissions on this point to be persuasive.

32Under r. 57.01(a), the court must consider the amount claimed. In this case, the plaintiff did not set out an amount in her statement of claim. Set out in the defendant’s submissions is reference to the plaintiff’s offer to settle of January 2022: $190,000 plus prejudgment interest on that amount at the rate of .5% plus costs and disbursements. As noted by the defendant, at trial, the claim that the plaintiff was permitted to put to the jury was $100,00 to $150,000 in general non-pecuniary damages and $1,300 for future gasoline expenses, a total amount well below the plaintiff’s January 2022 settlement offer.

33The defendant asserts that the amount claimed by the plaintiff was excessive.

34I accept that the plaintiff’s settlement offer, well-exceeded the size of the claim she was able to make out at trial.

35In his submissions, the defendant submitted that the action involved “inherently complex issues of liability”, important to the parties – factors identified under r. 57.01 (c) and (d). Both the defendant’s somewhat complicated medical history, on which his defence relied, and the plaintiff’s significant pre-existing health conditions meant that evidence was given by a total of six experts.

36The plaintiff did not specifically respond to the defendant’s submissions on these factors.

37I accept and agree with the defendant’s submissions respecting these factors.

Conclusion

38In determining the amount to be awarded to the defendant, I have applied the r. 57 factors and the principles referenced earlier above, and the overriding principle that a costs award should reflect what the court views as a “fair and reasonable contribution by the unsuccessful party”.

39I conclude that the costs sought by the defendant are fair and reasonable and that in the proper exercise of my discretion they should be awarded as claimed.

Disposition

40Costs are awarded as follows:

1. Costs of the action payable by the plaintiff to the defendant are fixed, as claimed in the total amount of $140,109.10, inclusive of H.S.T.