Court File and Parties

COURT FILE NO.: CV-18-3032-00 DATE: 2023 02 23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Toby Ginn Tajinder Gogna and Darryl Singer, for the Plaintiff Applicant

- and -

Dwizick, M. et. al. Hugh G. Brown, for the Defendants Respondent

HEARD: January 17, 18, 19, 20, 2023

Reasons on Costs

MANDHANE J.

Overview

[1] The parties appeared before me for an 4-day jury trial. The only issue was liability. The jury found in favour of the Plaintiff. Based on the parties’ prior agreement on the issue of damages, and the jury’s finding of contributory negligence, the Plaintiff was awarded $58.590.09.

[2] The Plaintiff is prima facie entitled to costs. The parties made written submissions as to quantum. The Plaintiffs ask me to order that the Defendants pay costs in the amount of $206,960.36. The Defendants say that this amount is excessive and unreasonable, and that I should only order costs of $45,400.

[3] I have a broad discretion when it comes to awarding costs: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1). I must consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, including but not limited to: offers to settle, the complexity and importance of the matter, the conduct of any party during the litigation, the principle of indemnity, and the amount that an unsuccessful party could reasonably expect to pay.

[4] Overall, the legal and factual issues were relatively straightforward and revolved around an occupier’s liability for a slip and fall. Counsel were present in court for four days. Both sides provided adequate disclosure in advance of trial and attended short examinations for discovery. No experts testified. The jury returned its verdict in 2 hours. Even the issue of damages was comparatively simple: there were no substantial claims for income loss, loss of competitive advantage, future care, housekeeping, medical/rehabilitation benefits etc. While the issues were certainly important to the parties, they were not of any broader public interest.

[5] Pursuant to Rule 49.10(1), where a plaintiff makes an offer to settle that is sent at least seven days before trial, is not withdrawn, does not expire before the commencement of trial, and is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, then the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date. Here, the Plaintiff delivered a formal offer to settle on January 5, 2023. The offer asked for $50,000 in damages, plus costs, HST, outstanding disbursements, and the OHIP subrogated account. The Plaintiff received more than the offer at trial. Therefore, the Plaintiff’s offer attracts the cost consequences of Rule 49.

[6] Despite both sides’ arguments to the contrary, I found trial counsel to be professional during pretrial conferences and at trial. While both parties zealously advocated for their clients, neither strayed into sharp practice. Indeed, the parties were able to limit the scope of the issues to be put to the jury prior to trial which saved court time.

[7] However, on the principle of indemnity, I find that the Plaintiff’s costs to be disproportionate and unreasonable. The Plaintiff’s excessive costs arise in part because of the excessive and inappropriate hourly fees charged by his counsel. For example, counsel at trial, Darryl Singer, says that he charged the client $900 per hour. The Plaintiff also claims costs for the attendance of junior counsel to observe the proceedings as part of their continuing education. This is unreasonable on its face. Moreover, Plaintiff’s counsel has not disclosed any contingency fee agreement that may have been in place. The disbursements are also excessive. For example, the Plaintiff paid $4,536 for an expert forensic engineering report that it did not rely on at trial.

[8] On the whole, the Defendants are jointly and severally liable to pay the Plaintiffs costs in the amount of $75,000, all inclusive.

Mandhane J. Released: February 23, 2023