COURT FILE NO.: CV-17-74859

DATE: 2024/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARY BEAZLEY

Plaintiff

– and –

DR. MARY JOHNSTON, DR. JAMES GILL, DR. PRAVIN SHUKLE, DR KALPESH RAICHURA, DR. ROBERT GAUVREAU, DR. LAWRENCE NORMAN, DR. MARIKO HASHIMOTO, DR MARK TRECARTEN, DR BASKAR GOPALAN, DR. NATALIE KESES, DR DEAN HOLDEN, DR JAMES WARD, DR ELLEN HENRY, DR GUY HEBERT, DR MARTIN GREEN, DR. PABLO NERY, DR. ADAM NICHOLSON, DR ADAM COHN, DR DONALD HARRIS, DR KUAN CHIN CHEN, DR. ELIZABETH SCOTT, DR GORDON KEE, DR HYMAN RABINOVITCH, DR DANIEL CHUKWU, DR KADAMBI SITARAM, DR KARI SAMPSEL, DR GETNET ASRAT, DR RICHARD MOXON, DR STEPHEN CHOI, DR PABLO NERY, DR. SAMUEL HETZ, DR. JACINDA WONG, DR ROBERT NICHOLS, DR. SUNIL VARGHESE, DR. DAVID DAVIDSON, DR. NINA RAMIC, DR JANE DOE, DR JOHN DOE, THE ONTARIO MINISTRY OF HEALTH AND LONG TERM CARE, QUEENSWAY CARLETON HOSPITAL and PUBLIC HEALTH AGENCY OF CANADA

Defendants

Plaintiff is self-represented

Andrew McKenna and Justin McCarthy, for the Defendant Physicians

Émilie Roy, for the Defendant, Queensway Carleton Hospital

HEARD: In Writing

RULING

(Costs of the Summary Judgment Motions and of the Action)

Corthorn J.

Overview

[1] In this action, Cary Beazley alleged that, as a result of the acts and omissions of the defendants, there was a delay of more than a year in his receipt of a diagnosis of Lyme disease. Mr. Beazley alleged that the delayed diagnosis of, and the delay in his receipt of treatment for, Lyme disease resulted in permanent negative effects on his health.

[2] The defendants named in the original statement of claim were 35 physicians, the Queensway Carleton Hospital (“the Hospital”), the Ontario Ministry of Health and Long-Term Care, and the Public Health Agency of Canada. By the winter of 2022, when the hearing of the motions for summary judgment (“the Motions”) commenced, the defendants who remained in the action were 27 of the 35 physicians originally named as defendants (“the Doctors”) and the Hospital.

[3] The Motions were heard following the completion of the exchange of pleadings and prior to examination for discovery of any party. The Motions were heard over 15 days, throughout March, April, August, and October 2022. The ruling on the Motions was released in August 2023: Beazley v. Johnston et al., 2023 ONSC 4956 (“the Decision”).

[4] The outcome on the Motions is as follows:

• The Doctors were successful on their motion, with the claims against them dismissed in their entirety;

• The Hospital was successful on its motion, with the claims against it dismissed in their entirety; and

• Mr. Beazley’s motion for partial summary judgment and for other relief was dismissed in its entirety.

[5] The parties were unable to resolve the issue of costs of the Motions and of the balance of the action. The court received written costs submissions.

[6] The Doctors and the Hospital request an order that Mr. Beazley pay their respective costs on the substantial indemnity scale throughout.

[7] The Hospital requests that the order provide that the costs to which it is entitled are payable within a specified period following a written demand for payment being sent by the Hospital to Mr. Beazley. Nothing in the Doctors’ submissions suggests that they request a term related to the timing of payment of the costs to which they may be found entitled.

[8] In response, Mr. Beazley requests that costs awarded to the Doctors and to the Hospital be minimal.

The Issues

[9] In this ruling, the court determines whether the Doctors and the Hospital are entitled to their respective costs and, if so, on what scale and in what amount.

Positions of the Parties

a) The Doctors

[10] The Doctors seek their costs of the Motions and for the defence of the action, on the substantial indemnity scale, in the total amount of $365,095.67. That amount is broken down as follows:

The Motions $ 240,072.37

The action $ 125,023.30

[11] The Doctors acknowledge that the quantum of costs they seek is significant. The Doctors emphasize, however, that the costs they incurred are a direct result of Mr. Beazley’s litigation strategy. The Doctors’ position is that the costs they incurred would have been much reduced if Mr. Beazley had taken a more focussed approach to his claims.

b) The Hospital

[12] The Hospital seeks its costs of the Motions and for its defence of the action, on the substantial indemnity scale, in the total amount of $75,019.11. The Hospital emphasizes the cost-effective approach it took throughout the proceeding.

c) Mr. Beazley

[13] Mr. Beazley acknowledges the existence of the general principle that, absent misconduct, a successful party in a proceeding is entitled to costs. Mr. Beazley submits that, when fixing costs, the court should fix costs in an amount that is fair and reasonable.

[14] Regarding the conduct of the Doctors and/or the Hospital, Mr. Beazley submits that those parties, collectively, were non-conciliatory. Mr. Beazley submits that, by relying on the evidence of seven expert witnesses, the Doctors unnecessarily drove up the costs they incurred. Mr. Beazley submits that the result of the Doctors’ approach was “trial by expert”. Mr. Beazley adds that trial by expert is “something to be avoided with substantive issues not addressed [and] admitted evidence ignored.”

[15] Mr. Beazley asks that the Doctors and the Hospital, respectively, be awarded “minimal costs”.

[16] Before determining the issues specific to this proceeding, I will first review the general principles to be followed when determining entitlement to costs, determining the scale on which costs are payable, and fixing the quantum of costs.

General Principles

[17] The starting point for the consideration of the court’s discretion to fix costs is s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Section 131(1) prescribes that discretion in the following language: “Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[18] The factors which the court considers when exercising its discretion regarding costs include those listed in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Eleven specific factors are listed in rr. 57.01(1)(0.a) to (h.1). Those factors include, for example, the principle of indemnity (r. 57.01(1)(0.a)); the complexity of the proceeding (r. 57.01(1)(c)); and the importance of the issues (r. 57.01(1)(d)). The r. 57.01(1) factors relevant to fixing costs in this proceeding are discussed in detail below.

[19] The court must also apply the general principles established in the case law. In a 2004 decision, the Court of Appeal for Ontario defines the overall objective of the court when fixing costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291. At para. 26, the overall objective is defined as fixing an amount in costs that is fair and reasonable for the unsuccessful party to pay. In the same paragraph, the court emphasizes that actual costs incurred are not the measure when fixing costs.

[20] More recently, in a 2010 decision of this court, Perell J. summarizes the five purposes modern costs rules are designed to advance in the administration of justice. At para. 10 of 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, Perell J. lists those five purposes:

(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. [Citations omitted.]

[21] In Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302, D.M. Brown J. (as he then was) addresses principles to be applied by the court when fixing the costs of either a motion or a proceeding involving a self-represented party. At para. 14, D.M. Brown J. recognizes “the reality that self-represented litigants do not form a homogenous group.”

[22] At para. 15, D.M. Brown J. explains how the court is to approach fixing costs in proceedings involving self-represented parties:

Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(1)(0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”.

[23] I will first address the issue of entitlement to costs, then the scale on which costs are payable and, last, the quantum of costs.

Issue No. 1 – Entitlement to Costs

[24] The Doctors and the Hospital were successful (a) on their respective motions for summary judgment, and (b) in opposing Mr. Beazley’s motion for partial summary judgment. The end result of the Motions is that all of Mr. Beazley’s claims are dismissed.

[25] Mr. Beazley does not dispute the Doctors’ and the Hospital’s respective status as the successful parties. Mr. Beazley does not submit that there is any basis upon which to deny either the Doctors or the Hospital their respective costs of the Motions and the action. Mr. Beazley asks that the costs awarded be minimal.

[26] I conclude that the Doctors and the Hospital are entitled to their respective costs of the Motions and of the action. I turn next to the scale on which costs shall be paid by Mr. Beazley.

Issue No. 2 – The Scale Upon Which Costs Shall Be Paid

[27] The Doctors and the Hospital seek their respective costs on the substantial indemnity scale. There is overlap between the factors upon which the Doctors rely and those upon which the Hospital relies regarding the scale upon which costs are payable. I address those factors collectively.

[28] For the reasons which follow, I conclude that the Doctors and the Hospital are entitled to their respective costs on the substantial indemnity scale throughout the proceeding.

a) Mr. Beazley Ignored Guidance Regarding Expert Opinion Evidence

▪ From Counsel for the Doctors

[29] Mr. Beazley was aware, as of the initial stages of the action, of the evidentiary burden that he bore to demonstrate that the physicians named as defendants were negligent. In December 2018, counsel for the defendant physicians sent a letter to Mr. Beazley in which that evidentiary burden was clearly set out (“the 2018 letter”). In his 17-page letter, counsel for the defendant physicians,

• explained not only the requirement for Mr. Beazley to provide expert opinion evidence, but also the nature of the opinion evidence required;

• notified Mr. Beazley that if he did not produce the requisite expert opinion evidence, the defendant physicians would bring a motion for summary judgment; and

• identified to Mr. Beazley that many of the defendant physicians had little to no involvement in Mr. Beazley’s case.

[30] At pp. 3-17 of the 2018 letter, counsel for the defendant physicians summarized the nature of the involvement of each of the defendant physicians in Mr. Beazley’s care. In addition, counsel for the defendant physicians asserted that there was no evidence to support a finding that any one of the defendant physicians breached the standard of care they were required to meet in their respective involvement in Mr. Beazley’s care.

[31] The 2018 letter made clear to Mr. Beazley the importance of obtaining expert opinion evidence in support of the allegations of negligence against the 35 physicians named as defendants.

[32] In 2019 and 2020, the Doctors were under no obligation to serve reports from expert witnesses who would be called at trial to give opinion evidence on the issues of standard of care and/or causation. Yet, in those years, counsel for the Doctors served Mr. Beazley with reports from seven expert witnesses, each of whom practiced or practices in a different specialty. Opinion evidence from seven expert witnesses was required to address the fields of medicine in which the Doctors practiced. Collectively, the opinions expressed were to the effect that none of the Doctors had breached the standard of care applicable to their respective fields of medicine.

▪ From the Court

[33] The importance of supportive expert opinion evidence was also highlighted for Mr. Beazley at a case conference conducted in 2021 to manage the Motions. The case conferences in this proceeding are discussed in paras. 79-81 of the Decision. I shall not repeat that discussion here.

[34] Last, even after the parties began to exchange materials on the Motions, Mr. Beazley received guidance from counsel for the Doctors regarding the expert opinion evidence Mr. Beazley required. In a letter sent to Mr. Beazley, after he had served his motion materials, counsel for the Doctors addressed in detail the form and substantive content of the evidence expected on a motion for summary judgment in a professional negligence action: see para. 84 of the Decision.

▪ Summary – Expert Opinion Evidence

[35] For more than three years prior to the date on which the hearing of the Motions commenced, Mr. Beazley received information and guidance from counsel for the defendant physicians (ultimately counsel for the Doctors) and from the court regarding the importance, form, and substantive content of the expert opinion evidence required in support of Mr. Beazley’s claims in the action and of his position on the Motions.

[36] Mr. Beazley chose not to heed that guidance. Instead, Mr. Beazley waited until part of the way through the hearing of the Motions to address the deficiencies in the expert opinion evidence upon which he relied. Mr. Beazley’s request, to serve and file a second affidavit from the expert upon whose evidence Mr. Beazley relied, is addressed at paras. 68-101 of the Decision.

[37] In Odede v. Tartaro, 2021 ONSC 2547, at para. 16, Price J. cited the decision of the Court of Appeal for Ontario in Smyth v. Waterfall (2000), 2000 CanLII 16880 (ON CA), 50 O.R. (3d) 481. Price J. did so as an example of the exercise of the court’s discretion to award costs on the substantial indemnity scale to a successful party on a motion for summary judgment. Such an award was made in Smyth because the court found that it should have been obvious to the moving party, when the motion was brought, that the motion stood no chance of success without the requisite expert evidence: Odede, at para. 16.

[38] Price J. concluded that “it should have been obvious to the plaintiffs [in Odede] when they resisted the motion that they stood no chance of success” unless they obtained the expert opinion evidence required to support their position: at para. 16. The plaintiffs in Odede did not file any affidavit evidence in response to the defendant physician’s motion for summary judgment.

[39] At para. 17, Price J. observed that the plaintiffs’ conduct “was unreasonable in persisting to oppose [the defendant physician’s] motion when they should have known that he would prevail.” In the same paragraph, Price J. noted that the plaintiffs’ conduct would have supported an award of costs to the defendant physician on the substantial indemnity scale. The defendant physician, however, sought (and was awarded) his costs on the partial indemnity scale.

[40] Mr. Beazley’s conduct in response to the defendants’ motions for summary judgment is not identical to that of the plaintiffs in Odede. In light of the guidance that Mr. Beazley received regarding expert evidence, I find that his conduct is analogous to that of the plaintiffs in Odede. It should have been obvious to Mr. Beazley for more than three years prior to the date on which the Motions commenced, that his action stood virtually no chance of success without admissible expert opinion evidence in support of his claims; his conduct on the Motions was unreasonable.

b) Mr. Beazley did not Fulfill his Obligations as a Self-represented Litigant

[41] In the Decision, I reviewed a Canadian Judicial Council document, from 2006, titled “Statement of Principles on Self-represented Litigants and Accused Persons” (the “Statement”). At para. 96 of the Decision, I found that Mr. Beazley failed to fulfill one of the three obligations of self-represented litigants specifically set out in the Statement. I found that Mr. Beazley’s handling of the presentation of affidavit evidence from an expert witness fell short of the obligation, set out in the statement, to “familiarize [himself] with the relevant legal practices and procedures pertaining to [his] case.”

[42] Taking into consideration the contents of the 2018 letter, and the service by the Doctors in 2019 and 2020 of seven reports from expert witnesses, I find that Mr. Beazley’s failure to familiarize himself with the legal practices and procedures applicable to his claims in this action dates back prior to the Motions – to at least December 2018.

[43] Mr. Beazley’s failure in that regard extends beyond his failure to familiarize himself with the importance, form, and substantive content of the expert opinion evidence to support claims based in professional negligence. Mr. Beazley failed to familiarize himself with the importance of abiding by deadlines set by the court.

[44] As described in paras. 79-84 of the Decision, Mr. Beazley failed to meet the deadlines set by Fortier A.J., in case conference orders, for service of (a) a report from the expert(s) whose evidence Mr. Beazley intended to rely on, and (b) materials on which he relied in response to the motions by the Doctors and the Hospital for summary judgment.

[45] As a final example of Mr. Beazley’s failure to familiarize himself with the legal practices and procedures applicable to this proceeding, I refer to para. 6(iii) of the Doctors’ costs submissions. The Doctors therein highlight that, when before Fortier A.J. for a case conference at which the schedule for the defendants’ motions for summary judgment was addressed, Mr. Beazley did not give the court or counsel for the defendants notice of his intention to respond with a motion for partial summary judgment. Despite the lack of notice regarding Mr. Beazley’s motion for partial summary judgment, (a) the Doctors and the Hospital did not object to the Motions being heard together, and (b) the court heard the Motions together in a single hearing.

c) Rule 20.06

[46] Regarding the entitlement of the Doctors and the Hospital to their respective costs of the Motions on the substantial indemnity scale, I also rely on r. 20.06 (a) of the Rules of Civil Procedure. Pursuant to that rule, on a motion for summary judgment, the court has the discretion “to fix and order payment of costs of a motion for summary judgment by a party on a substantial indemnity basis if, (a) the party acted unreasonably by making or responding to the motion”.

[47] For the reasons discussed in the preceding paragraphs of this section of the ruling and because of the conduct discussed immediately below, I find that Mr. Beazley acted “unreasonably” within the meaning of r. 20.06(a). Mr. Beazley’s unreasonable conduct specific to the Motions includes the following conduct.

[48] First, the records filed by Mr. Beazley in response to the defendants’ motions for summary judgment and in support of his motion for partial summary judgment include two documents he authored. Each of those documents is titled “Expert-Report-Rebuttal – Cary Beazley”. At the beginning of the hearing of the Motions, the court received submissions from the parties on Mr. Beazley’s request for leave to be qualified as an expert to give opinion evidence on the diagnosis and treatment of Lyme disease. That request was denied: Beazley v. Johnston, 2022 ONSC 1739 (“Ruling No. 1”).

[49] Mr. Beazley’s pursuit of a request for leave in that regard is another example of Mr. Beazley’s failure to familiarize himself with the applicable legal principles and procedures – and was unreasonable in the circumstances of the Motions.

[50] Second, Mr. Beazley’s motion materials did not comply with the order made by Roger. J., when the Motions were adjourned from January 6, 2022 to March 2, 2022. Mr. Beazley (a) failed to provide the court with a complete paper copy of his motion materials, (b) included numerous hyperlinks in his materials, without providing hard copies of the relevant documents, (c) failed to keep his materials “as brief as possible”, and (d) failed to make “all efforts to avoid including materials that are not necessary”.

[51] As a result of the approach taken by Mr. Beazley to his motion materials, the court was required to make an interim ruling regarding the admissibility of the documents upon which Mr. Beazley sought to rely as evidence. The steps taken by the court, the efforts made by the parties to reach an agreement on admissibility of documents, and the court’s decision are set out in Beazley v. Johnston et al., 2022 ONSC 2747 (“Ruling No. 2”).

[52] At paras. 32-45 of Ruling No. 2, the court reviews Mr. Beazley’s conduct regarding the presentation of evidence to the court:

• Mr. Beazley had prior experience on at least two motions in the proceeding (RulingNo. 2, at paras. 42-43);

• Mr. Beazley received guidance from the court, including that the use of a hyperlink to a website was prohibited for the purpose of documentary evidence on the Motions (RulingNo. 2, at para. 39);

• Mr. Beazley had the example of more than 35 affidavits filed by the defendants in support of their motions for summary judgment (RulingNo. 2, at para. 44); and

• Yet Mr. Beazley did not, within the ample time available to him, “inform himself and, if necessary, seek advice with respect to the presentation of documentary evidence in the context of a motion” (Ruling No. 2, at para. 45).

[53] Having determined that the Doctors and the Hospital are entitled to their respective costs of the Motions and the proceeding on the substantial indemnity scale, I will next fix the amount of costs to which the successful parties are entitled.

Issue No. 3 – Fixing the Quantum of Costs

[54] I will first fix the quantum of costs to which the Hospital is entitled and then the costs to which the Doctors are entitled. I do so because counsel for the Hospital represented a single party throughout the proceeding, including on the Motions. The quantum of costs to which that single party is entitled is helpful when considering the quantum of costs requested for the work of counsel who (a) initially represented 35 defendants, and (b) for the balance of the proceeding, including on the Motions, represented 27 defendants.

a) The Hospital

[55] The Hospital asks the court to fix the costs to which it is entitled, on the substantial indemnity scale, in the total amount of $75,019.11. That amount is broken down as follows:

Fees $ 65,828.79

HST on fees $ 8,557.74

Disbursements (incl. HST) $ 632.58

[56] The fees requested are based on 90 percent of the actual fees incurred ($73,143.10 x 0.9). The disbursements requested are based on 90 percent of one disbursement item: $702.86, including HST, for the Hospital’s 50 percent share of the cost of the transcript from the cross-examination of Dr. Boucher, the expert witness upon whose opinion evidence Mr. Beazley relied.

[57] In his costs submissions, Mr. Beazley does not make any submissions specific to either the Hospital’s costs submissions or bill of costs. For example, Mr. Beazley does not challenge the reasonableness of the hourly rates charged or the number of hours docketed by each of the timekeepers whose work is reflected in the $65,828.79 requested for fees.

[58] The Hospital relies on the factors set out in rr. 57.01(1)(0.a), (0.b), and (e). The Hospital submits that, when considered collectively, those factors support a finding that the costs it requests are reasonable.

▪ r. 57.01(1)(0.a) – The Principle of Indemnity

[59] Under r. 57.01(1)(0.a), the court has the discretion to consider “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer”.

[60] Two lawyers were assigned to represent the Hospital – a senior associate and an associate lawyer. The senior associate had carriage of the file. The senior associate worked primarily in the background, providing strategic guidance and, where appropriate, oversight of materials. The vast majority of the day-to-day work on the matter and the court appearances were handled by the associate lawyer.

[61] Despite also relying on the work of others, for example, articling students – the Hospital’s bill of costs includes only fees for work done by either the senior associate or the associate lawyer.

[62] The senior associate was called to the bar in 2009. The fees claimed by the Hospital include work done by that individual in 2021 and 2022. In those years, the senior associate’s actual hourly rates were $349 and $364, respectively. The associate lawyer was called to the bar in 2017. The fees claimed include work done by that individual in 2021 and 2022. The applicable hourly rates were $280 and $310, respectively.

[63] The fees requested include $1,552.95 for the initial stage of the proceeding (defined by the Hospital as July 8, 2021 to September 13, 2021) and $64,275.84 for the Motions – for a total of $65,828.79.

[64] The level of detail provided in the Hospital’s bill of costs for work done at each stage of the Motions assists the court in assessing the reasonableness of the fees requested and the efficiency with which both the senior associate and the associate lawyer approached their work.

[65] I find that (a) the hourly rates charged by each of the senior associate and the associate lawyer are reasonable, and (b) the time docketed by each of the senior associate and the associate lawyer is reasonable.

[66] I wish to comment specifically on one aspect of the efficiency with which the associate lawyer, Émilie Roy, approached her work. Throughout the Motions, including for the purpose of interim rulings, Ms. Roy’s submissions followed those made by counsel for the Doctors. Ms. Roy was always careful not to repeat submissions made by counsel for the Doctors. Where necessary, Ms. Roy highlighted the extent to which the Hospital was adidem with the Doctors. The submissions specific to the Hospital’s position were at all times made efficiently, without compromising the substance of the submissions.

▪ r. 57.01(1)(0.b) – Reasonable Expectations of the Unsuccessful Party

[67] The claims against the Hospital are addressed at paras. 170-91 of the Decision. The claim against the Hospital in negligence and that based on vicarious liability were dismissed in their entirety. The claim in vicarious liability was the primary claim: Decision, at para. 170.

[68] Given the nature and extent of the claims against the Hospital, Mr. Beazley should reasonably have expected that the Hospital would (a) prepare a fulsome record in support of its motion for summary judgment, and (b) deliver materials in response to Mr. Beazley’s motion for partial summary judgment. Mr. Beazley should also have reasonably expected that pursuing the relief addressed in Ruling Nos. 1 and 2, would result in an increase in the costs incurred by the Hospital on the Motions.

[69] The fees requested on the substantial indemnity scale for the 15 days of hearing time on the Motions are $28,095.30. That portion of the fees equates to a counsel fee of less than $2,000 per day.

[70] I find that the fees requested fall well within the reasonable expectations of the unsuccessful party on the Motions.

▪ r. 57.01(1)(e) – Party Conduct that Affected the Duration of the Proceeding

[71] In February 2021, less than two months following the close of pleadings, the Hospital informed Mr. Beazley of its intention to bring a motion for summary judgment: Beazley v. Dr. Mary Johnston et al. (February 17, 2021), Ottawa, 17-74859 (S.C.). The Hospital’s cost-effective approach to the proceeding is reflected in its choice to waive its right to an oral examination for discovery of Mr. Beazley.

[72] I find that the approach taken by the Hospital in its defence of the action and on the Motions served to shorten the overall duration of the proceeding and the duration of the Motions.

▪ Summary – Fees

[73] I fix the fees to which the Hospital is entitled, on the substantial indemnity scale, for the proceeding and the Motions, in the total amount of $65,828.79. The applicable HST is $8,557.74 ($65,828.79 x 0.13).

▪ Disbursements

[74] The only disbursement item is for the Hospital’s 50 percent share of the cost of the transcript from the cross-examination, on the Motions, of the expert witness upon whose testimony Mr. Beazley relied (Dr. Boucher). The Hospital seeks 90 percent of that cost – $632.58 ($702.86 x 0.9). Mr. Beazley does not take issue with the inclusion of that disbursement item in the costs requested by the Hospital.

[75] It was reasonable for the Hospital to attend on, and share in the cost of the transcript from, the cross-examination of Dr. Boucher. The disbursements, including HST, to which the Hospital is entitled are $632.58.

▪ Conclusion – Costs Awarded to the Hospital

[76] I fix the costs to which the Hospital is entitled, on the substantial indemnity scale, for the Motions and the action, in the all-inclusive amount of $75,019.11 ($65,828.79 + $8,557.74 + $632.58).

[77] At the Hospital’s request, the order made at the conclusion of this ruling includes a term which (a) sets out the requirement for the Hospital to send a demand letter to Mr. Beazley before the costs awarded to the Hospital are payable, and (b) provides Mr. Beazley with a 90-day window, following receipt of a demand letter, in which to pay the costs awarded to the Hospital.

[78] The final issue to be determined in this ruling is the quantum of costs to which the Doctors are entitled.

b) The Doctors

[79] The Doctors delivered two bills of costs in support of their request for costs, on the substantial indemnity scale, totalling $365,095.67. One bill of costs is for the Motions; the other is for the balance of the proceeding.

i) The Motions

[80] The Doctors ask the court to fix their costs of the Motions, on the substantial indemnity scale, in the amount of $240,072.37. That amount is broken down as follows:

Fees $ 211,235.85

HST on fees $ 27,460.66

Disbursements (incl. HST) $ 1,375.86

[81] The Doctors point to Mr. Beazley’s decision to pursue his claims against 27 doctors, from seven fields of medicine, as one of the reasons why extensive work was required to prepare materials on behalf of the Doctors in their capacity as moving parties. The Doctors also rely on Mr. Beazley’s conduct on the Motions.

[82] The Doctors submit that the work done by their counsel on the Motions was necessary and was carried out in a reasonable and appropriate manner. The Doctors acknowledge that the quantum of costs they are seeking – for the Motions and the balance of the proceeding, collectively – is significant. The Doctors submit that a sizeable portion of the costs incurred by the Doctors could have been avoided if Mr. Beazley had employed a more focussed approach to his claims.

[83] In response, one of Mr. Beazley’s primary submissions is that it was unnecessary for the Doctors to rely on the evidence of seven expert witnesses. As a result, he should not have to pay for costs associated with that strategic decision.

[84] Another of Mr. Beazley’s primary submissions is that by addressing evidentiary issues as it did (i.e., Ruling Nos. 1 and 2), the court disrupted the “normal presentation order.” Mr. Beazley submits that, as a result of the court’s management of the hearing of the Motions, the duration of that hearing was increased. Mr. Beazley submits that he should not be responsible for an increase in costs to which his conduct did not contribute.

[85] I will review the factors listed in r. 57.01(1) relevant to fixing the costs to which the Doctors are entitled.

▪ r. 57.01(1)(0.a) – The Principle of Indemnity

[86] Over time, the individuals who worked on the Motions included a partner (2002 year of call), five associates (years of call ranging from 2016 to 2021), and three law clerks. The vast majority of the work was done by the partner and one of the five associates. That associate was called to the bar in 2018.

[87] The time docketed by each of the timekeepers, other than the partner and the associate (2018 year of call), falls within a range of a single digit to less than 50 hours. I am satisfied that these other timekeepers had minimal or peripheral involvement in the file. I am also satisfied that the involvement of these other timekeepers was the result of cost-effective delegation of work.

[88] For both the partner (Andrew McKenna) and the associate (Justin McCarthy), all but fewer than five hours of their work on the Motions were docketed in 2021 and 2022.

[89] The fees for the work done by Messrs. McKenna and McCarthy in 2021, 2022, and 2023 are based on hourly rates as charged from one year to the next. For Mr. McKenna, the actual hourly rates were $470, $485, and $525; for Mr. McCarthy, the actual hourly rates were $235, $255, and $300. I am satisfied that those hourly rates are reasonable based on the years of call and level of experience of Messrs. McKenna and McCarthy. I am also satisfied that the hourly rates charged over time by the remaining timekeepers are reasonable.

[90] I pause to note that, in his costs submissions, Mr. Beazley does not take issue with the hourly rates upon which the Doctors’ costs are based.

[91] The final factor to consider under r. 57.01(1)(0.a) is the “hours spent” by the timekeepers. I will focus on the time spent by Messrs. McKenna and McCarthy. The total of the hours spent by Mr. McKenna in 2021, 2022, and 2023 is 256.4 (70 + 185 + 1.4) and by Mr. McCarthy is 389.3 (160 + 225 + 4.3).

[92] For comparison’s sake, I consider the total hours spent in those years by the senior associate and the associate lawyer who represented the Hospital. For the senior associate, the total is 14.9 (3 + 4 + 0.2 + 7.7); for the associate lawyer, the total is 217.6 (24 + 18.6 + 10.7 + 8 + 0.7 + 54.9 + 100.7).

[93] Messrs. McKenna and McCarthy collectively docketed approximately 2.8 times the number of hours docketed by the senior associate and associate lawyer who represent the Hospital (256.4 + 389.3 = 645.7 versus 14.9 + 217.6 = 232.5). The Doctors’ motion record includes 35 affidavits – an affidavit from each of the 27 physicians who remained as defendants in the action; one from each of the seven expert witnesses; and an affidavit from a non-physician, in which the history of the proceeding is addressed.

[94] I am satisfied that counsel for the Doctors were efficient in their work and that the work was carried out in a cost-effective manner. Taking into consideration the nature, content, and volume of materials delivered on behalf of the Doctors; the cross-examination by Mr. Beazley of three of the expert witnesses; and the interim evidentiary issues addressed on the Motions, I make the following findings:

• Messrs. McKenna and McCarthy carried out their respective work highly efficiently and cost-effectively; and

• It was reasonable for both of Messrs. McKenna and McCarthy to attend the hearing of the Motions. They each made submissions, with Mr. McKenna making the majority of the submissions on behalf of the Doctors. It was reasonable for each lawyer to be present when the other was making submissions.

[95] In summary, the hours spent and hourly rates charged by the timekeepers are reasonable.

▪ r. 57.01(1)(0.b) – Reasonable Expectations of the Unsuccessful Party

[96] By his own admission, Mr. Beazley expected that the Doctors would advance a fulsome defence to the claims made against them. At para. 32 of his costs submissions, Mr. Beazley is critical of the Doctors for retaining seven expert witnesses. Mr. Beazley therein describes that strategy as being part of “a more than ... vigorous defence the CMPA client is well known for.” I infer that, when he uses the short form, “CMPA”, Mr. Beazley means the Canadian Medical Protective Association.

[97] As noted in the preceding section of this ruling, Mr. Beazley does not take issue with the number of hours spent by the timekeepers whose work is reflected in the Doctors’ bill of costs on the Motions. In his costs submissions, Mr. Beazley provides what he describes as a “conservative estimate” of the time he spent on the motion: “several thousands of hours.”

[98] The work done by counsel for the Doctors is in keeping with the type of defence Mr. Beazley expected. The number of hours docketed falls well below the number of hours Mr. Beazley spent in responding to the Doctors’ motion for summary judgment and in his capacity as the moving party on a motion for partial summary judgment.

▪ r. 57.01(1)(c) – The Complexity of the Proceeding

[99] At para. 4 of their costs submissions, the Doctors submit that, “[w]hile the issues of standard of care and causation in this case were not particularly complex, Mr. Beazley’s decision to produce and rely upon hundreds of articles and websites made navigating the litigation much more complex.” Mr. Beazley’s approach to the presentation of evidence is addressed under Issue No. 2, above. Mr. Beazley’s approach in that regard is also addressed in Ruling Nos. 1 and 2.

[100] For the reasons discussed under Issue No. 2 and in the interim rulings cited, I agree with the Doctors and find that Mr. Beazley’s approach to the presentation of evidence increased the complexity of the proceeding and the time required on behalf of the Doctors.

▪ r. 57.01(1)(d) – The Importance of the Issues

[101] The outcome of the Motions was significant to the Doctors. As explained at para. 4 of the Doctors’ costs submissions, “any finding of negligence made against a physician can have significant consequences on their ability to practice.” None of the Doctors wanted the potential for such a finding to be made in this case hanging over their head for the several years that would pass before the action proceeded to a trial.

[102] The Motions were also important to Mr. Beazley because of the extent to which he alleges his quality of life has deteriorated as a consequence of the acts and omissions of the Doctors.

▪ r. 57.01(1)(e) – Party Conduct that Affected the Duration of the Hearing

[103] For the reasons discussed under Issue No. 2, above, and in Ruling Nos.1 and 2, I find that Mr. Beazley’s conduct on the Motions resulted in the pre-hearing portion and the hearing of the Motions being lengthened.

[104] To those reasons, I add another reason Mr. Beazley’s conduct contributed to the hearing of the Motions being longer than it would otherwise have been. I agree with the submission made in the fourth bullet point at para. 6(v) of the Doctors’ costs submissions – Mr. Beazley repeatedly failed to adhere to the multiple directions from the court to focus his submissions on the issues to be determined on the Motions.

[105] By contrast, the Doctors chose not to take issue with Mr. Beazley’s failure to comply with court-imposed deadlines; chose not to bring a preliminary motion to address deficiencies in Mr. Beazley’s materials on the Motions; and worked with Mr. Beazley during the Motions in an effort to assist the court to determine the issues on Ruling No. 2 in an efficient manner. The materials delivered by the Doctors for the purpose of that interim ruling were well-organized and easy to navigate.

[106] I find that the conduct of the Doctors, both prior to and during the hearing of the Motions, contributed to the hearing being shorter than it might otherwise have been.

▪ Summary – Fees

[107] I fix the fees to which the Doctors are entitled on the Motions, on the substantial indemnity scale, in the amount of $211,235.85. The applicable HST is $27,460.66 ($211,235.85 x 0.13).

▪ Disbursements

[108] For the Motions, the disbursements requested by the Doctors total $1,375.86, inclusive of HST where applicable. That amount is 90 percent of the total disbursements, inclusive of HST, actually incurred ($1,528.73 x 0.9).

[109] The disbursement items include two filing fees, minimal courier charges, modest binding charges, and expenses associated with the cross-examination of Dr. Boucher. Mr. Beazley does not take issue with any of the disbursement items for which the Doctors seek recovery on the Motions.

[110] The disbursements requested are reasonable. The disbursements to which the Doctors are entitled on the Motions are fixed in the amount of $1,375.86, inclusive of HST.

▪ Conclusion – Costs of the Motions Awarded to the Doctors

[111] I fix the costs to which the Doctors are entitled on the Motions, on the substantial indemnity scale, in the all-inclusive amount of $240,072.37 ($211,235.85 + $27,460.66 + $1,375.86).

[112] I will complete the determination of costs by fixing the costs to which the Doctors are entitled for the balance of the proceeding.

ii) The Action

[113] The Doctors ask the court to fix their costs of the action, on the substantial indemnity scale, in the amount of $125,023.30. That amount is broken down as follows:

Fees $ 91,525.00

HST on fees $ 11,898.25

Disbursements (incl. HST) $ 21,600.05

[114] The Doctors highlight the significant amount of time required to respond to a claim in which 35, and ultimately 27, physicians were named as defendants. The broad-sweeping approach taken by Mr. Beazley required counsel for the Doctors to obtain and review the records of, and to meet with, each of the Doctors.

[115] The Doctors point to two elements of Mr. Beazley’s conduct in the action. First, the Doctors ask the court to consider that Mr. Beazley amended the statement of claim three times prior to the hearing of the Motions. Second, the Doctors ask the court to consider Mr. Beazley’s production of hundreds of documents and links to websites as ‘evidence’ in support of his claims.

[116] The Doctors also rely on aspects of Mr. Beazley’s conduct reviewed in the preceding section of this ruling: the failure to (a) narrow the focus of the claims, and (b) respond in a meaningful way to the opinions, from seven experts, produced in 2019 and 2020.

[117] In response, Mr. Beazley asserts that he recognized the importance of reducing the number of defendant physicians. He points to the discontinuance of the action against the eight “lesser involved” physicians. He adds that he went a step even further because “[m]any more were not named parties in the style of cause to reduce numbers.”

[118] As noted in the preceding section of this ruling, Mr. Beazley submits that the reliance by the Doctors on the opinions of seven expert witnesses was excessive and unnecessary, and served to increase the costs incurred by the Doctors.

[119] I will review the factors listed in r. 57.01(1) relevant to fixing the costs to which the Doctors are entitled in the action (exclusive of the Motions).

▪ r. 57.01(1)(0.a) – The Principle of Indemnity

[120] In the preceding section of this ruling, I found that the hourly rates charged by the timekeepers whose work is reflected in the bill of costs for the Motions are reasonable. The bill of costs for the action includes time docketed by timekeepers who did not work on the Motions. I will not review those timekeepers in detail. I find that their hourly rates are reasonable for all years in which their time is recorded and based on their respective levels of experience.

[121] The vast majority of the work in defence of the action was done in the years 2018 through 2020. I summarize that work as follows:

2018 - Four timekeepers and a total of 150 hours;

2019 - Five timekeepers and a total of 145 hours;

2020 - Three timekeepers and a total of 70 hours; and

2021 - Five timekeepers and a total of 76 hours.

[122] In each of the years 2018 through 2021, Mr. McCarthy docketed more hours than did Mr. McKenna. For that reason, and based on the hours docketed by the other timekeepers in those years, I find that the work done in the defence of the action was delegated in a reasonable manner. I find that the approach taken to work on behalf of the Doctors was cost-effective.

[123] In the years 2018 to 2021, counsel for the Doctors retained the seven physicians on whose evidence the Doctors intended to rely as expert opinion evidence. The time docketed in those years reflects the work required to organize the Doctors’ respective records, deliver those records with instructions to the experts retained, consult with the experts, and produce seven reports to Mr. Beazley in 2019 and 2020.

[124] I am satisfied that counsel for the Doctors carried out their work in an efficient manner. In summary, the hours spent and hourly rates charged by the timekeepers are reasonable.

▪ r. 57.01(1)(0.b) – Reasonable Expectations of the Unsuccessful Party

[125] I rely on the reasons set out in paras. 95-97, above, regarding Mr. Beazley’s reasonable expectations.

▪ r. 57.01(1)(c) – The Complexity of the Proceeding

[126] The production by Mr. Beazley over the years of hundreds of documents and links to websites served to increase the complexity of the proceeding. For two reasons, counsel for the Doctors could not take a cavalier approach to the productions. First, counsel for the Doctors were required to review the documents so as to fulfil their obligations to their clients. Second, recognizing that Mr. Beazley is self-represented, and in fairness to him, counsel for the Doctors were put to the task of reviewing the material for relevance.

▪ r. 57.01(1)(d) – The Importance of the Issues

[127] For the importance of the issues to the Doctors, I rely on para. 99, above.

[128] Mr. Beazley submits that the action raised important matters of public interest, including public health issues and matters pursuant to the Canadian Charter of Rights and Freedoms. I disagree. The action did not raise matters of public interest. I recognize that the action was important to Mr. Beazley personally and, in that regard, rely on para. 101, above.

▪ r. 57.01(1)(e) – Party Conduct that Affected the Duration of the Hearing

[129] Not only did Mr. Beazley commence an action in which he originally named more than 35 defendants; he amended the statement of claim on three occasions prior to the return of the Motions. The repeated amendments to the statement of claim served to increase the duration of the action.

▪ Summary – Fees

[130] I fix the fees to which the Doctors are entitled in the action, on the substantial indemnity scale, in the amount of $91,525. The applicable HST is $11,898.25 ($91,525 x 0.13).

▪ Disbursements

[131] For the action, the disbursements requested by the Doctors total $21,600.05, inclusive of HST where applicable. That amount is 90 percent of the total disbursements, inclusive of HST, actually incurred ($24,000.06 x 0.9).

[132] The disbursement items include the fee for filing a notice of intent to defend, courier charges, binding charges, the cost of obtaining medical records, and the invoices delivered by two of the seven experts. Mr. Beazley does not take issue with any of the disbursement items except the expert witnesses’ respective invoices.

[133] The total of the invoices delivered by two of the seven experts is $19,300. The Doctors include 90 percent of that total in the disbursements they seek ($17,370 = $19,300 x 0.9).

[134] Each of the experts who delivered an invoice prepared at least one report, swore at least one affidavit, and was produced for cross-examination. For the reasons set out in the previous sections of this ruling, I am satisfied that it was reasonable for the Doctors to retain seven expert witnesses. Taking into consideration the nature of the work done by each of the experts whose invoices are included as disbursements, I am satisfied that the invoices delivered are reasonable.

[135] The disbursements to which the Doctors are entitled for the action are fixed in the amount of $21,600.05, inclusive of HST.

▪ Conclusion – Costs of the Action Awarded to the Doctors

[136] I fix the costs to which the Doctors are entitled in the action, on the substantial indemnity scale, in the all-inclusive amount of $125,023.30 ($91,525 + $11,898.25 + $21,600.05).

iii) Timing of Payment of Costs Awarded to the Doctors

[137] The costs to which the Doctors are entitled on the Motions and in the action total $365,095.67 ($240,072.37 + $125,023.30).

[138] Nothing in Rule 20 dictates the timing of payment of costs awarded to a party on a motion for summary judgment. Rule 57.03(1) prescribes that, “[o]n the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall, (a) fix the costs of the motion and order them to be paid within 30 days”. In r. 1.03(1), a “motion” is defined as “a motion in a proceeding or an intended proceeding”.

[139] Pursuant to rr. 1.03(1), 20, and 57.03(1), collectively, the court has the discretion to require Mr. Beazley to pay the costs awarded to the Doctors within 30 days or within some other number of days of the date of this ruling.

[140] The Doctors acknowledge, and the court recognizes, that the costs awarded to the Doctors are a significant amount for any litigant to pay. In light of the amount of the costs awarded, the court exercises its discretion to extend that 30-day period and allow Mr. Beazley 90 days, from the date of this ruling, within which to pay the Doctors’ costs.

Disposition

[141] For the reasons set out in this ruling, I make the following order as to costs:

1. Mr. Beazley shall, within 90 days of the date of this order, pay to the Doctors their costs of the Motions, fixed on the substantial indemnity scale, in the amount of $240,072.37.

2. Mr. Beazley shall, within 90 days of the date of this order, pay to the Doctors their costs of the action, fixed on the substantial indemnity scale, in the amount of $125,023.30.

3. The costs of the Hospital in this action, including the Motions, are fixed, on the substantial indemnity scale, in the amount of $75,019.11.

4. The costs referred to in paragraph 3 are payable on the following terms:

a) The Hospital shall send to Mr. Beazley, by email or by regular mail, at the last known email or municipal addresses known for him, a letter demanding payment of the costs awarded to the Hospital;

b) Mr. Beazley shall, within 90 days of the later of the date on which the email is sent or the date on which the demand letter is sent by regular mail, pay the costs awarded to the Hospital; and

c) Interest shall not begin to accrue on the costs awarded to the Hospital, or on any unpaid portion thereof, until the 91st day following the later of the date on which the email is sent or the date on which the demand letter is sent by regular mail.

Madam Justice Sylvia Corthorn

Released: April 30, 2024

COURT FILE NO.: CV-17-74859

DATE: 2024/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARY BEAZLEY

Plaintiff

– and –

DR. MARY JOHNSTON, DR. JAMES GILL, DR. PRAVIN SHUKLE, DR KALPESH RAICHURA, DR. ROBERT GAUVREAU, DR. LAWRENCE NORMAN, DR. MARIKO HASHIMOTO, DR MARK TRECARTEN, DR BASKAR GOPALAN, DR. NATALIE KESES, DR DEAN HOLDEN, DR JAMES WARD, DR ELLEN HENRY, DR GUY HEBERT, DR MARTIN GREEN, DR. PABLO NERY, DR. ADAM NICHOLSON, DR ADAM COHN, DR DONALD HARRIS, DR KUAN CHIN CHEN, DR. ELIZABETH SCOTT, DR GORDON KEE, DR HYMAN RABINOVITCH, DR DANIEL CHUKWU, DR KADAMBI SITARAM, DR KARI SAMPSEL, DR GETNET ASRAT, DR RICHARD MOXON, DR STEPHEN CHOI, DR PABLO NERY, DR. SAMUEL HETZ, DR. JACINDA WONG, DR ROBERT NICHOLS, DR. SUNIL VARGHESE, DR. DAVID DAVIDSON, DR. NINA RAMIC, DR JANE DOE, DR JOHN DOE, THE ONTARIO MINISTRY OF HEALTH AND LONG TERM CARE, QUEENSWAY CARLETON HOSPITAL and PUBLIC HEALTH AGENCY OF CANADA

Defendants

RULING (Costs - Summary Judgment Motions and Action)

Madam Justice Sylvia Corthorn

Released: April 30, 2024