Court File and Parties

Court File No.: CV-23-0158-00 Date: 2024-11-12 Ontario Superior Court of Justice

Between: Nicole Barrette, Plaintiff/Responding Party Counsel: M. Irwin, for the Plaintiff/Responding Party

And: Bombardier Transportation Canada Inc., Defendant/Moving Party Counsel: G. Power and M. Maimets, for the Defendant/Moving Party

Heard: In writing

Before: Mr. Justice S.J. Wojciechowski

Costs with respect to Motion heard Aug 19/24 and decision delivered Sept 4/24

[1] In a motion filed by the defendant, Bombardier Transportation Canada Inc. (“Bombardier”), the relief sought included answering undertakings or refusals of the plaintiff, Nicole Barrette (“Barrette”), as well as a request for a defence medical.

[2] In my reasons dated September 4, 2024, I granted the relief sought by Bombardier.

[3] The parties were asked to provide costs’ submissions arising from my decision, and they have each done so in writing.

[4] These are my reasons for costs.

[5] Bombardier was entirely successful in the motion, and served an offer to settle dated August 8, 2024, which is more than seven days before the motion was heard on August 19, 2024. Partial indemnity costs are therefore sought to the date of the offer, and substantial indemnity costs thereafter on the basis of Rule 49.10 of the Rules of Civil Procedure.

[6] In its written submissions, Bombardier states that it is seeking a costs award in the amount of $16,780.50 for fees, disbursements and HST, with its pre-offer partial indemnity claim totaling $8,451.27 and its post-offer substantial indemnity claim totaling $8,329.23.

[7] Barrette concedes that Bombardier was successful in its motion, and does not dispute Bombardier’s prima facie right to seek costs.

[8] However, Barrette submits that the claim advanced, which totals almost $17,000, is excessive and disproportionate to the issues addressed by the motion. Instead, Barrette suggests that a costs award in the amount of $1,500 would be reasonable and appropriate in the circumstances.

[9] In considering what an appropriate award for costs should be in this matter, I am mindful of the plaintiff’s submissions with respect to this being a matter governed by Rule 76 of the Rules of Civil Procedure, which limits the recovery of costs in a simplified procedure action to $50,000 in fees and $25,000 in disbursements. In other words, a party is limited to a maximum of $50,000 in fees to cover pleadings, investigation, discovery, pre-trial matters, and a trial which must be completed within five days. I agree that the defendant’s claim for $17,000 in costs for a half-day motion should be assessed in this context.

[10] The other consideration in determining costs involves an assessment of the value of the outcome of the motion, and how the resolution of the relevant issues could impact the case. In other words, were the results worth the effort?

[11] It is my assessment that some of the issues raised in the defendant’s motion will likely have little impact on the overall outcome of this litigation.

[12] For example, the issue of whether Barrette previously breached the drug and alcohol policy of Bombardier was only made relevant due to the plaintiff’s broad assertion in her statement of claim that she acted professionally in the past, without being guilty of willful misconduct or neglect of duty. Bombardier maintained, however, that it was not asserting after acquired cause. As such, it is likely that, while the pleading made this question relevant, the answer will not form part of the evidence during the trial.

[13] The request for family members to particularize concerns about Barrette’s past behaviour is another example. Barrette was ordered to answer this question only because she provided an affirmative answer initially, and Bombardier was entitled to explore that answer. However, the answer to this question will likely have little impact on the outcome of the action, since concern, or a lack thereof, on the part of a family member neither supports nor denies the existence of a substance abuse issue.

[14] The question regarding the availability of clinical notes and records from a Sault Ste. Marie facility resulted in my decision to compel a supplementary affidavit of documents, to be prepared by Barrette with a proper Schedule “C”. However, again, Bombardier could have called the Sault Ste. Marie institution and determine for itself the facility’s retention policy. Requiring Barrette to serve a Schedule “C” listing documents which no longer exist – as confirmed by the plaintiff in her answers to undertakings – will add nothing to the issues which need to be determined in this matter.

[15] Some of the requests for information were more proportional, in that the answers to the questions could very well impact the trial, such as the evidence relating to mitigation and the background details to Barrette’s substance abuse disorder. In addition, it was reasonable to seek an expert opinion to address the nature and extent of Barrette’s substance abuse disorder, and an order granting the same was provided.

[16] So I agree that some amount of costs should be payable to Bombardier.

[17] In exercising my discretion to assess an appropriate costs award, and considering the factors listed in Rule 57.01(1) of the Rules of Civil Procedure, I am mindful of the fact that an offer to settle was served by the defendant which reflected the relief that was ultimately granted. I factor in the proportionality issues raised above, some of which support a costs order, and some of which do not. By the same token, some of the questions whose answers will only marginally impact the outcome of this matter were refused, and I also recognize the plaintiff’s position could have accounted for the questions being asked and reconsidered the refusals.

[18] According to the written submissions, the plaintiff’s claim for costs, if successful, would have been $5,410.80 on a substantial indemnity basis, and $3,607.20 on a partial indemnity basis. This informs the expectations of the unsuccessful plaintiff. The defendant put forth an offer which proposed a settlement of the matter with costs payable in the amount of $3,500 approximately ten days before the matter was argued, which speaks to its expectations before beginning in earnest to prepare for the motion.

[19] Finally, while the hourly rates charged by counsel for the defendant may be considered reasonable in Toronto, they do not reflect rates that would typically be allowed for Thunder Bay counsel working on a motion addressing refusals and the request for a defence medical.

[20] All factors considered, and in an effort to fix an amount for costs and disbursements that is fair and reasonable for the plaintiff to pay, I order that costs in any event of the cause be payable by the plaintiff in the amount of $5,000, inclusive of costs, disbursements and HST.

“Original signed by” The Hon. Justice S.J. Wojciechowski

Released: November 12, 2024