Court File and Parties

COURT FILE NO.: CV-20-1531 DATE: 2024/04/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jayne Parker, Plaintiff – and – The Corporation of the City of Kitchener, Defendant

Counsel: Graham Bennett, Counsel for the Plaintiff Steph Brogden, Counsel for the Defendant

HEARD: In Writing

G.E. Taylor J.

COSTS and Interest ENDORSEMENT

Introduction

[1] On July 7, 2020, the plaintiff tripped on uneven sidewalk slabs while walking along College Street in the City of Kitchener. The plaintiff fell forward and struck her head on the sidewalk. The plaintiff sued the defendant for failure to maintain the sidewalk.

[2] After a trial, judgment was granted in favour of the plaintiff in the amount of $15,000 for non-pecuniary general damages and $1,792.02 OHIP subrogated claim. The parties requested the opportunity to make written submissions regarding costs, and pre-judgment interest which written submissions have now been received.

Costs

[3] The amount of the judgment is within the jurisdiction of the Small Claim Court.

[4] The plaintiff requests that she be awarded partial indemnity fees in the amount of $16,950, inclusive of HST, which is approximately one-third of the total docketed time on a partial indemnity basis plus disbursements of $19,136, for a total of $36,086.

[5] The defendant submits that the plaintiff should be denied any costs of the action. Alternatively, the defendant submits that the plaintiff’s costs should be limited to the amount which would have been awarded if the action had been commenced in the Small Claims Court. The defendant says those costs total $5,932.50.

[6] The trial lasted four days. Liability and damages were both contested. The examinations in chief of all witnesses were by way of affidavits. The witnesses were then cross-examined and re-examined. The plaintiff called three witnesses including two experts. The defendant called four witnesses including two experts.

[7] Regrettably, it appears that the parties and their counsel lost all perspective about this case. Both sides approached the case as though it was significant legally or monetarily. It was neither. The defendant, in particular, made no meaningful attempt to resolve the case. Trial time is valuable and in short supply. Litigants and their lawyers have a responsibility to keep that in mind.

[8] The following is a summary of some of the plaintiff’s costs:

Partial indemnity fees (including HST) $54,000 Engineer report and witness fee $ 6,594 Medical report and witness fee $ 5,675 Total $69,269

[9] The following is a summary of some of the defendant’s costs:

Partial indemnity fees (including HST) $43,500 Engineer report and witness fee $25,126 Medical report and witness fee $12,283 Total $80,909

[10] These amounts are staggering considering the amount at stake and the complexity of the issues!

[11] Costs are in the discretion of the court (Courts of Justice Act, s. 131). If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the plaintiff may be deprived of costs (Rules of Civil Procedure, r. 57.05(1)). I decline to exercise this discretion in this case because to do so would be to place the sole responsibility for manner in which this case proceeded on the plaintiff. In my view that would not be fair.

[12] Rule 57.01 of the Rules of Civil Procedure sets out a number of principles that may be considered in awarding costs in addition to the result and any offers to settle. There were no offers which attract r. 49 consideration. The plaintiff’s offer was for more than double the amount awarded. The defendant’s offer was for $2,000 inclusive of costs. (I do not consider the defendant’s offer to consent to a dismissal without costs to be a meaningful attempt to compromise the claim.) As previously stated, this case was not complex. It is difficult to comprehend why a litigant would expend in excess of $80,000 in fees and disbursements for experts in defending a claim which it says was always within the jurisdiction of the Small Claims Court. It is reasonable to conclude that the defendant anticipated that the plaintiff would expend a similar amount in fees and disbursements, which she did. The amount of the judgment is a significant factor with respect to the appropriate award of costs.

[13] I have come to the conclusion that it would not be appropriate to award the plaintiff more in costs than the amount of the judgment. The plaintiff is entitled to her costs of this proceeding which I fix at $15,000, inclusive of disbursements, plus HST. These costs are payable forthwith.

Interest

[14] The plaintiff submits, that pre-judgment interest on non-pecuniary general damages should be allowed at the rate of 5%. The defendant takes the position that the plaintiff should be awarded interest on the non-pecuniary general damages at the rate of 0.5%. The amount of interest sought by the plaintiff is $2,690, compared to the amount said to be appropriate by the defendant, which is $270.

[15] The plaintiff relies on r. 53.10 of the Rules of Civil Procedure which provides for interest on non-pecuniary loss at the rate of 5%. The defendant relies on s. 130(1)(a) of the Courts of Justice Act which allows the court to allow a higher or lower interest rate than provided for in the Rules.

[16] Consistent with the approach adopted by both parties with respect to the issues of liability and damages, they have continued to take extreme adversarial positions with respect to the difference of $2,420 for interest on the non-pecuniary damages.

[17] There is merit to the defendant’s position that 5% is far in excess of the prevailing market interest rates during the period of this lawsuit. However, there are other factors set out in s. 130(2) of the Courts of Justice Act when deciding whether to depart from the interest rate as set out in the Rules, including the circumstances of the case, whether an advance payment was made, whether prompt medical disclosure was made by the plaintiff, the amount claimed and recovered, any conduct that tended to lengthen or shorten the proceeding and any other relevant consideration.

[18] The defendant refused to consider any settlement. No advance payment was made. The plaintiff’s disclosure of medical evidence was reasonable. The amount claimed was much less than the amount recovered. Both parties lost all perspective about the significance of this case. Under the category of “any other relevant consideration”, I am of the view that the amount in issue is not worth the time and effort it has taken to litigate this issue.

[19] Interest on the plaintiff’s non-pecuniary general damages is fixed at $1,350 being approximately 2.5%.

Summary

[20] Judgment shall issue in favour of the plaintiff for:

a) Interest on the non-pecuniary general damages in the amount of $1,350; b) Interest on the OHIP subrogated claim in the amount of $32.13; and, c) Partial indemnity costs in the amount of $15,000 inclusive of disbursements plus HST.

[21] These amounts are payable forthwith.

G.E. Taylor J.

Released: April 18, 2024