Court File and Parties

COURT FILE NO.: CV-21-00000144-0000 (Kingston) DATE: 2024Jan02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOLORES VAN DE VEN, Plaintiff AND: DR. RUSSELL BOYCE and DR. RUSSELL E. BOYCE DENTISTRY PROFESSIONAL CORPORATION, Defendants

BEFORE: Justice Gary Tranmer

COUNSEL: Jessica Greenwood, for the Plaintiff Paul J. Martin, for the Defendants

HEARD: December 7, 2023

Endorsement

[1] There shall be an order granting leave to the plaintiff to amend the Statement of Claim to continue this claim under Simplified Procedure as attached at Schedule A, limiting the plaintiff’s claim to $200,000 or less. Such relief is not in dispute in this motion.

[2] The issue on the motion was whether there should be an order made in favour of the defendants in respect of costs thrown away to this point in the proceedings, and if so when such costs should be ordered, now or at the end of trial, and the quantum.

[3] The defendants identify their costs thrown away as the excess costs incurred for examinations for discovery over and above the time limits provided for in Rule 76. The defendants submit that the wording of rule 76.13 is mandatory.

[4] The plaintiff submits that the extent of her claim was mitigated after the action was commenced and therefore, she is transferring the matter to simplified rules at the earliest stage. The plaintiff also argues that the defendants will benefit from the information obtained from the entire examination for discovery process. The plaintiff therefore argues that the defendants’ costs are not necessarily thrown away.

[5] In this latter regard, I note that the wording of rule 76.13 is in reference to “costs incurred by the opposing party up to the date of the amendment that would not have been incurred”.

[6] The plaintiff argues that if such an order is to be made, it should be deferred to the trial judge for decision following trial.

[7] I find the wording of rule 76.13 to be clear and directed at the situation that has occurred in this case, “Regardless of the outcome of the action… The party whose pleadings are amended shall pay… Unless the court orders otherwise”.

[8] Although the situation factually before Justice Pierce, in Hewitson Holdings Inc. v. Bur-Met Contracting and Concrete Walls, 2021 ONSC 3197 differed, the principle articulated by her in paragraph 49 is sound. Costs unnecessarily incurred to date should not be deferred to the trial judge. There is no reason before me in fact or law to defer this decision to the trial judge, or order otherwise.

[9] Accordingly, I order that the plaintiff shall pay to the defendants the costs incurred by the defendants up to this date that would not have been incurred had the claim originally complied with rule 76.

[10] With respect to the quantum of those costs, the defendants claim that those costs are for 13.5 hours of preparation and attendance at examinations for discovery charged at the actual rate of $650 per hour, for a claim of $9915.75 all inclusive.

[11] Rule 76.13 contemplates costs on a substantial indemnity basis, not actual cost. The wording of the rule is specific and clear. Using a rule of thumb of 80% for a substantial indemnity basis costs award, the defendants are entitled to a costs award for costs unnecessarily incurred, of $8000 all-inclusive. Such an award is fit, reasonable and proportionate. There is no suggestion that such an award is beyond the expectations of the parties.

[12] I would note that 80% of the actual costs charged to the defendant clients is $520 per hour. This is consistent with the partial indemnity costs decision of Justice Price in Stewart v. Allan, 2022 ONSC 2082, where he updates the 2005 costs bulletin contained in Rule 57. Using a rule of thumb of 60% for partial indemnity against a $650 per hour actual charge equates to $390 per hour on a partial indemnity base which is consistent with that calculated by Justice Price for lawyers of Mr. Martin’s experience.

Summary

[13] An order shall issue transferring to and continuing this claim under the Simplified Rules and for costs to the defendants in the amount of $8000 all-inclusive.

Costs of the Motion

[14] If the parties are not able to agree upon costs of this motion, after bona fide efforts to do so, the defendants may make written submissions limited to one page plus a costs outline, file any rule 49 offer and legal authorities within 20 days.

[15] The plaintiff may respond in like manner within five days.

[16] If no such written submissions are received by the court, there shall be no order as to costs of this motion.

Tranmer J. Date: January 2, 2024