Court File and Parties

COURT FILE NO.: CV-16-205 DATE: 2024-01-24 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JARROD SETH VAN EVERY by his Litigation Guardian, ANDREW STASTNY, Plaintiff AND: D. ROBERT FINDLAY and FINDLAY PERSONAL INJURY LAWYERS, Defendants

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: D. Preszler, A. Zaltz, Counsel for the Plaintiff A. Rachlin, L. Haedayati, Counsel for the Defendants

HEARD: July 21, 2021; Costs Submissions due December 15, 2023, plus extension decision on costs of motions

Background

[1] The motions that are the subject of this costs award arose as part of a professional negligence action against the defendants who are the plaintiff’s former solicitors in a claim for statutory accident benefits. The plaintiff changed counsel and the claim was settled. In this action, the plaintiff claims general damages in the amount of $2 million on the basis that the defendants failed to represent him properly during his retainer.

[2] The parties sought orders in three separate but related motions:

a. The plaintiff asked that a portion of the statement of defence alleging improvident settlement be struck. b. The defendants asked that the court order production of an unredacted affidavit filed by the plaintiff. c. The defendants asked for an order that counsel for the plaintiff be removed from the record.

[3] By decision dated September 27, 2021 (2021 ONSC 6381), I determined that the improvident settlement defence should not be struck and required that the plaintiff provide to the defendants an unredacted copy of the affidavit of Jeffrey Preszler sworn April 6, 2016.

[4] By decision dated November 27, 2023, I dismissed the defendants’ motion to remove counsel for the plaintiff from the record, without prejudice to the right of the defendants to renew their motion, if necessary, at a later stage of the proceedings.

[5] Counsel were invited to settle the issue of costs consensually, failing which they were to file their Bills of Costs and submissions according to a timetable. Those submissions have now been received.

Positions of the Parties

By the Plaintiff:

[6] The primary position of the plaintiff is a claim for partial indemnity costs of $19,316.22 inclusive of disbursements and HST.

[7] Alternatively, the plaintiff proposes that based on divided success, each party bear their own costs.

[8] The primary position is based on the plaintiff’s success in resisting the motion to remove counsel, despite failing to achieve success on the other two motions. The plaintiff’s theory is that the defendants’ motion to produce the unredacted affidavit was mainly relevant to the removal motion, and therefore ultimately of no value to the defendants based on the outcome of that motion. Likewise, the plaintiff’s motion to strike the improvident settlement allegation was a direct response to the request that counsel be removed.

[9] The removal motion was the most complex of the three and was of significant importance to the plaintiff. The costs incurred were proportionate to those factors.

By the Defendants:

[10] The defendants were entirely successful on two of the three contested motions, and although they were unsuccessful on the removal motion, they have the option of returning to court to seek the same relief later in the proceedings if justified by the facts.

[11] They propose that a costs award be made in their favour on a partial indemnity basis of $11,082.51 for the two motions on which they were successful, and that they pay the plaintiff the sum of $6,000 as partial indemnity costs for the removal motion. That latter figure is based on their anticipated costs claim, had the removal motion been successful, of $6,094.90. In effect, they submit that the costs claim by the plaintiff regarding the removal motion is excessive, and disproportionate.

[12] The defendants submit that all three motions were important to them in their full denial of any wrongdoing in handling the plaintiff’s accident benefits claim.

Analysis

[13] The discretion to award costs arises from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered the factors which guide the exercise of that discretion found in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[14] Success is a presumptive factor justifying an award of costs. Here, the plaintiff was successful in resisting the defendants’ removal motion, notwithstanding the possibility that a new motion could be brought by the defendants at a later stage in the proceedings. Likewise, the defendants were entirely successful in their motion to secure an unredacted copy of the Preszler affidavit, and in resisting the plaintiff’s motion that the improvident settlement claim should be struck.

[15] I do not agree with the plaintiff’s submission that the two motions on which he did not succeed were subsumed by the removal motion. Those motions relate to at least part of the defendants’ defence of the plaintiff’s professional negligence claim.

[16] If the three motions are considered collectively and considering that argument of the removal motion required more time than the other two, the result could be considered as divided success. However, in my view, it is more appropriate to view them discretely, given the clear success achieved by one or the other party on each motion.

[17] The detailed costs outline provided by the defendants identifies a total of 94.7 hours spent on the three motions, of which 36.1 hours related to the removal motion. The partial indemnity hourly rates charged were $233 for senior counsel, and $141 for junior counsel (with approaching 10 years’ experience). Both of those rates are modest.

[18] The plaintiff’s Bill of Costs does not break down the time spend amongst the three motions, but it does show that a total of 50 hours was spent on the matters. That was just over half the time claimed by the defendants, but at partial indemnity hourly rates of $300 and $627 for junior and senior counsel, respectively.

[19] The defendants’ attributed 38 percent of their time spent to the removal motion. The plaintiff submits, without specifics as to a breakdown of time spent, that the removal of counsel motion was proportionately more important and more time consuming than the others. The lack of any specific breakdown from the plaintiff as to time spent among the motions makes it difficult to apportion his costs claim.

[20] The substantially different preparation times incurred as well as the substantially different hourly rates are not a matter of criticism. Neither appears to be excessive, or beyond the reasonable expectation of the unsuccessful party.

[21] I conclude that the defendants are entitled to their costs from the plaintiff on a partial indemnity basis, inclusive of disbursements and HST in the amount of $11,082.59, as claimed, based on their success in two of the motions. The plaintiff is entitled to be paid his costs by the defendants, also on a partial indemnity basis, in the amount of $7,726.40 inclusive of HST based on his success in resisting the removal of counsel motion. That amount is based on the hourly rates claimed by the plaintiff and ascribes 40 percent of the total time spent to that motion. The net amount of the costs award, namely $3,356.19 is to be paid by the plaintiff to the defendants in any event of the cause.

Reid J. Date: January 24, 2024