Court File and Parties

COURT FILE NO.: CV-15-533549 DATE: 20240722 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LANGUIDA MUKANKUBANA and JEAN PAUL NIYOMBAZA, Plaintifs – and – DR. YOAV BRILL, DR. BRIAN FERGUSON, DR. PETER VLAOVIC and TORONTO EAST GENERAL HOSPITAL, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Jaan Lilles and Zachary Rosen, for the Defendants, Dr. Yoav Brill, Dr. Brian Ferguson, and Dr. Peter Vlaovic Anna Marrison and Matthew Umbrio, for the Defendant, Toronto East General Hospital

HEARD: Costs submissions in writing

Costs Endorsement

[1] The Defendants have provided me with costs submissions following my granting of summary judgment dismissing this medical malpractice claim. The action was a protracted one, consuming 9 years of litigation before being dismissed. The two sets of Defendants – Toronto East General Hospital (the “Hospital”) and Drs. Brill, Ferguson, and Vlaovic (the “Doctors”) – are each entitled to costs.

[2] Neither of the Defendants has overreached or been in any way greedy in their costs requests. In fact, quite the contrary. The Hospital has incurred $24,000 in fees calculated on a partial indemnity basis, but here seeks only $10,000 all inclusive; the Doctors have incurred $35,738.81 in fees and disbursements with fees calculated on a partial indemnity bases, but here seek only $10,596.50 all inclusive.

[3] The Plaintiffs were self-represented. They appeared at the motion and made fulsome submissions. They have not made any written submissions in respect of costs despite being invited to do so in my reasons for decision of May 17, 2024: Mukankubana v. Toronto East General Hospital, 2024 ONSC 2818. I indicated, at para. 29, that submissions should be sent to my assistant within 4 weeks of that time (2 weeks for the Defendants and 2 weeks thereafter for the Plaintiffs). More than 2 months have now gone by.

[4] The events giving rise to this action involve Ms. Mukankubana’s experience during labour and delivery of a baby. I understand that it was a difficult and painful experience for her, which I more fully described in my reasons for decision on the summary judgment motion: Ibid., at paras. 4-6, 24-26.

[5] Although I found that the Defendants cannot be faulted, there is no doubt that both Ms. Mukankubana and her spouse, Mr. Niyombaza, have endured trauma and have suffered from the difficult delivery and the follow-up care necessitated by Ms. Mukankubana’s condition. They both spoke passionately about the situation at the hearing of the motion, and their message came through loud and clear. In fact, the Hospital’s and the Doctors’ sympathy with the depth of the Plaintiffs’ difficulties is what has prompted them to significantly discount their costs requests.

[6] I, too, felt Ms. Mukanubana’s pain and also have considerable sympathy for Mr. Niyombaza’s difficult experience in caring for his spouse. That said, the litigation has taken a lengthy toll on the Defendants; nine years of ongoing production, discovery, expert reports, and, needless to say, expense, all to show that the Defendants performed up to the expected professional standard of care.

[7] Costs are discretionary under section 131 of the Courts of Justice Act. The exercise of this discretion is based, first of all, on our civil litigation system’s policy of the unsuccessful side providing some just compensation to the successful side: Boucher v. Public Accountants (2004), 188 OAC 201 (CA).

[8] Rule 57.01(1)(0.a) of the Rules of Civil Procedure provides that the first consideration for a costs award is the principle of indemnity for the successful party. This is then tempered by the guidance in Rule 57.01(1)(0.b) that the amount of costs should not be beyond the expectation of the unsuccessful party.

[9] Taking these two principles together, it stands to reason that even where the Plaintiffs present an undeniably sympathetic case, the successful Defendants should not be made to bear the costs of litigation without some contribution from the Plaintiffs. I will therefore exercise my discretion add my own discount to that already put forward by each of the Defendants.

[10] The Plaintiffs shall pay the Hospital $5,000 and the Doctors $7,500 in respect of the action and the motion. Both of these amounts are inclusive of all fees, disbursements, and HST.

Date: July 22, 2024 Morgan J.