Court File and Parties

Court File No.: CV-17-575874 Date: 20230302 Superior Court of Justice – Ontario

Re: NAZARHA RASUL and AMJAD RAHAMAN, Plaintiffs And: DR. PATRICK WHELAN, DR. AVIDIS BOUDAKIAN and MARKHAM STOUFFVILLE HOSPITAL, Defendants

Before: Justice A.A. Sanfilippo

Counsel: Ismail Idowu Salih, for the Plaintiffs Caroline Humphrey, for the Defendant, Dr. Patrick Whalen

Heard: In writing

Endorsement on Costs

Background

[1] The Plaintiffs, Nazarha Rasul and her son, Amjad Rahaman brought this action claiming medical malpractice. This action was not served on the Defendant, Dr. Avidis Boudakian, and the Plaintiffs reached an agreement to dismiss this action as against the Defendant, Markham Stouffville Hospital. The Plaintiffs continue this action against Dr. Patrick Whelan, only (the “Defendant”).

[2] Dr. Whalen brought a motion seeking the dismissal of this action on three grounds: (i) dismissal for delay; (ii) summary judgment under Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the Plaintiffs failed to deliver an expert report in support of their medical malpractice claim; and (iii) summary judgment granting dismissal based on Dr. Whalen’s pleaded limitation defence.

[3] The dismissal sought based on delay was abandoned, and the dismissal sought based on failure to deliver an expert report was withdrawn upon the Plaintiffs’ delivery of an expert medical report dated July 15, 2022, authored by Dr. Sami A. Chadi, a general surgeon (the “July 2022 Medical Report”).

[4] Dr. Whalen’s motion proceeded for determination of the issue of whether the Plaintiffs’ action is statute-barred by expiry of the two-year limitation period provided by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Limitations Act”). Implicit in this issue was whether this was an appropriate matter for summary judgment under Rule 20.

[5] By Reasons for Decision released November 30, 2022, I ordered that Dr. Whelan’s motion for summary judgment be dismissed on the basis that his limitation defence raises genuine issues requiring a trial: Rasul v. Whelan, 2022 ONSC 6743 (the “Reasons”). I ordered, in paragraph 78 of the Reasons, that if the parties could not agree on the issue of costs of the motion, they could deliver written costs submissions for the determination of this issue. The parties dispute the costs issue, with the result that the Plaintiffs delivered written submissions in accordance with the timetable set out in paragraph 78 of the Reasons. The Defendant thereafter delivered his responding written costs submissions.

The Parties’ Positions

[6] Dr. Whalen conceded that the Plaintiffs are entitled to the costs of this motion on a partial indemnity basis, consistent with the well-established principle that, absent special circumstances, “costs follow the event”: Bell Canada v. Olympia & York Developments Ltd. (1994), 111 D.L.R. (4th) 589 (Ont. C.A.); Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal refused, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, at para. 4.

[7] This left for determination the amount of costs.

[8] The Plaintiffs submitted that their costs, on a partial indemnity basis, are $49,295.22, all-inclusive of fees, disbursements and applicable taxes. The Plaintiffs’ Cost Outline states that the Plaintiffs’ lawyer, paralegal and law clerk billed a combined 83.6 hours to respond to this motion, comprising total fees of $22,929.40 plus taxes of $2,980.82 for a total of $25,910.22. The Plaintiffs submitted that they have incurred disbursements totaling $23,138.50, which include the July 2022 Medical Report ($19,210.00) and $830.00 for “copies of any documents or authorities prepared for or by a party” and “copies of motion material”.

[9] The Defendant submitted that the costs claimed by the Plaintiffs are excessive and do not accord with the principle of reasonable indemnity. The Defendant submitted that the amount of hours spent on the motion was excessive, and that the cost of the July 2022 Medical Report is not a proper disbursement on this motion. The Defendant submitted that a costs award in the range of $10,000.00 to $15,000.00 would be fair, reasonable and consistent with Dr. Whalen’s expectations.

Analysis – Fixing the Amount of Costs

[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides the court with discretion in the determination of costs. The exercise of this discretion is guided by the factors set out in Rule 57.01, and applicable jurisprudence, having regard for the overriding principles of reasonableness, fairness and proportionality. [^1]

[11] I accept the Defendant’s submission that the costs claimed by the Plaintiffs on this motion are excessive. I will explain why.

[12] First, the total of 83.6 hours of time for preparation and attendance at the motion, heard virtually, is excessive. The Plaintiffs delivered the Responding Motion Record as self-represented litigants prior to the appointment of their counsel on April 14, 2022. There was no lawyer’s time incurred in the delivery of the Responding Motion Record, and the only further evidence filed by the Plaintiffs’ lawyer once retained was an affidavit tendering the July 2022 Medical Report. Comparatively, the amount of time incurred by the Plaintiffs on this motion is 20 hours more than the time set out by Dr. Whalen’s counsel in their Bill of Costs. The fees sought by the Plaintiffs are beyond “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”, which is a factor in the quantification of costs under Rule 57.01(1)(0.b).

[13] Second, while I accept the Plaintiffs’ submission that a party is entitled to costs where a motion is abandoned or deemed to be abandoned, [^2] the Defendant’s abandonment of the grounds for dismissal on the basis of delay and failure to produce an expert medical report did not, in my view, appreciably affect the Plaintiffs’ costs in responding to this motion. The Defendant certainly incurred greater costs in bringing the motion on these grounds, as the Defendant’s Motion Record contained detailed evidence in support of their claim for delay. However, the Plaintiffs’ Responding materials do not reflect any meaningful increased cost in dealing with the abandoned grounds for dismissal, as they deal predominantly with responding to the limitations issue. The Plaintiffs’ factum addressed only the limitations issue as the other grounds for dismissal had been withdrawn by that time that it was delivered.

[14] Third, the cost of the July 2022 Medical Report is not, in my view, a proper disbursement for assessment on this motion, but rather it is properly addressed at trial. Independent of the Defendant’s motion for summary judgment on his limitation defence, the Plaintiffs were required to deliver an expert medical report to sustain their medical malpractice action. As R.S.J. Edwards stated in Comer v. Mount Sinai Hospital, at para. 13, “it is now beyond dispute that there can be no genuine issue that would require a trial if a Plaintiff claiming medical negligence does not obtain expert opinions to support the allegations laid out in the statement of claim.” [^3] The delivery of the July 2022 Medical Report was critical to the Plaintiffs continuing with their medical malpractice claim, but it was not relied on by the parties on this motion, either in their factums or in oral argument. Finally on this point, the Plaintiffs rely on the findings in Lopresti v Rosenthal, 2016 ONSC 7494, where the Court awarded costs of medical reports authored by experts who were not called to testify. That case involved the determination of costs on a settled medical malpractice trial, not a summary motion, and does not assist the Plaintiffs here.

[15] Fourth, I find that the Plaintiffs have not shown that certain of the other disbursements are recoverable. The Court of Appeal has stated that disbursements are recoverable where they are reasonable, not excessive and charged to the client. [^4] Here, the Plaintiffs have claimed as disbursements the sum of $750.00 for “copies of any documents or authorities prepared for or by a party” and $80.00 for “copies of motion material”. The Plaintiffs did not file any supporting materials or details in support of this claim. The hearing of this motion was conducted virtually with electronic documents. I will not allow these disbursements. Further, the Plaintiffs have claimed $273.77 for “computer searches”. The Plaintiffs did not establish that the computer searches were charged to them by their lawyers as opposed to being part of their lawyers’ office overhead. They are therefore disallowed.

[16] The objective of quantification of costs is to determine an amount that is fair, reasonable, and proportionate, understanding that the mathematical quantification of what the successful litigant has spent in legal fees is pertinent but not dispositive. [^5] I have reduced the Plaintiffs’ costs in accordance with the issues explained, above, and have removed the disallowed disbursements. My decision to disallow the cost of the July 2022 Medical Report for the purpose of determining costs of this motion is without prejudice to the Plaintiffs seeking recovery of this disbursement at trial.

[17] Considering all the factors set out in Rule 57.01, and applicable case law, and in the exercise of my discretion under s. 131 of the Courts of Justice Act, I conclude that it is fair, reasonable and proportionate to fix the Plaintiffs’ costs of this motion in the amount of $12,000.00, all inclusive of fees, disbursements and applicable taxes. I order that these costs be paid by Dr. Whelan within 30 days, in accordance with Rule 57.03(1).

Disposition

[18] I order:

(a) The Plaintiffs, Nazarha Rasul and Amjad Rahaman are awarded costs of this motion, on a partial indemnity basis, payable within 30 days by the Defendant, Dr. Patrick Whelan, fixed in the amount of $12,000.00, all inclusive of fees, disbursements and applicable taxes.

Justice A.A. Sanfilippo Date: March 2, 2023

[^1]: Barbour v. Bailey, 2016 ONCA 334, at para. 9; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal refused, [2019] S.C.C.A. No. 82; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.), at para. 4. [^2]: Rule 37.09(3): “Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.” Inzola Group Limited v. The Corporation of the City of Brampton, 2017 ONSC 3822, at para. 16: “A party that was required to respond to a subsequently abandoned motion is entitled to costs, in the absence of exceptional circumstances, and as such a party is presumptively entitled to such costs as a matter of right and to have those costs payable forthwith, unless ordered otherwise.” [^3]: Comer v. Mount Sinai Hospital, 2022 ONSC 1321, at para. 13, relying on Liu v. Wong, 2016 ONCA 366, at para. 14: “Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.” Also, Hurst v. Shabib, 2021 ONSC 8342, at paras. 25, 35-38. [^4]: Moon v. Sher, 246 DLR (4th) 440 (Ont. C.A.), at para. 39: “It would seem, therefore, that amounts disbursed for Quicklaw services, courier services, stationary and postage may be recoverable under Tariff item 35 if the service or expense is “reasonably necessary for the conduct of the proceeding”, the amount is reasonable and has been charged to the client, and the disbursement does not fall within standard office overhead.” See, Hamfler v. Mink, at paras. 11-15. [^5]: Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.), at para. 4: “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”