Court File and Parties

Court File No.: CV-15-00003609-0000
Date: 2025-02-19
Court: Superior Court of Justice – Ontario
Address: 7755 Hurontario Street, Brampton ON L6W 4T6

Re:
Hartej Gill, Estate Trustee on behalf of the late Kuljinder Gill
Hartej Gill, Estate Trustee on behalf of the late Kharmveer Gill
Kuljinder Gill
Hartej Gill
Gurjot Gill
Gurveen Gill
Harbhajan Bassi
Manjit Bassi
Ravinder
Plaintiffs

And:
Gurjap Singh Toor
Gurpreet Kaur Toor
Mark Vanslyke
Keena Truck Leasing and Transport Limited
The Wawanesa Mutual Insurance Company
Defendants

Before: Fowler Byrne

Counsel:
Jason F. Katz and Scott Kastelic for the plaintiffs
Ian D. Kirby and Michael Burgar for the defendant Gurpreet Kaur Toor
Angus Chalmers for the defendant The Wawanesa Mutual Insurance Company

Heard: December 9, 2024, by video conference

COSTS ENDORSEMENT

[1] Introduction

This action was tried before a judge and jury in May 2024. The jury returned its verdict on May 31, 2024, awarding various heads of damages to the Plaintiffs.

[2] Final Judgment

The parties have agreed to the form of final Judgment.

[3] Costs Between Parties

Costs as between the Defendant Gurpreet Kaur Toor (“Toor”) and the Defendant Wawanesa Mutual Insurance Company have been resolved as between them. As between the Plaintiffs and the Defendants, it is agreed that disbursements in the sum of $65,616.47 are appropriate, but they have been unable to decide the appropriate amount of legal costs. A hearing was necessary to determine that final matter.

I. Background

[4] This action arose out of a fatal motor vehicle accident that occurred on May 31, 2014. On that day, a number of young friends had been drinking alcohol and made the unfortunate decision to drive a car. The driver, Gurjap Toor made an ill-advised turn in front of a large truck, which caused a fatal collision, killing his friend Kharmveer Gill and seriously injuring another.

[5] This action was brought by Kharmveer Gill’s family for damages under the Family Law Act, which included claims for loss of care guidance and companionship, as well as for the support that Kharmveer Gill was expected to provide his parents.

[6] The matter was complicated by the fact that the owner of the car, Toor, maintained that her son Gurjap Toor did not have her consent to operate the vehicle on the night in question. Accordingly, Wawanesa was added as a party pursuant to an OPCF44R Endorsement under the automobile insurance policy of Hartej Gill, who is Kharmveer Gill’s mother.

[7] The driver and owner of the transport truck that were involved in the accident were let out of the action shortly before trial.

II. Decision

[8] The Plaintiffs were successful at the trial. The jury returned verdicts awarding all the Plaintiffs’ damages for loss of care guidance and companionship, Hartej Gill was awarded damages for past and future loss of financial support that she could have expected from her son, and for the loss of his household services. Kharmveer Gill was found only to be five percent (5%) contributorily negligent. The jury also found that Gurjap Toor did have Toor’s consent to use the car, therefore absolving the Wawanesa Mutual Insurance Company of any liability in the matter.

III. Position of the Plaintiffs

[9] The Plaintiffs seek their costs on a substantial indemnity basis throughout. They rely on the Victims’ Bill of Rights, 1995, S.O. 1995, c.6. This would result in an award of $395,670.60 plus taxes and disbursements.

[10] In the alternative, the Plaintiffs seek their substantial indemnity costs from the date of a mediation in April 2019, as a result of the offers made on that day, and their partial indemnity costs beforehand. In the further alternative, they seek substantial indemnity costs from the date of the pre-trial, as a result of the offers made that day, and partial indemnity before. Finally, in the further alternative, they seek partial indemnity up to the delivery of their first offer under r.49 of the Rules of Civil Procedure, on December 16, 2021, and their substantial indemnity costs thereafter.

IV. Position of the Defendant

[11] Toor acknowledges that the Plaintiffs are entitled to their costs. It is her position that the defence should pay partial indemnity costs up to December 16, 2021, and then substantial indemnity costs thereafter. They also argue though, that the costs claimed are excessive and not reasonable.

[12] The Defendant submits that a reasonable costs award would be $200,000 plus H.S.T. and disbursements.

V. Issues

[13] The following issues must be determined:

a. Does the Victims’ Bill of Rights apply, and if so, should substantial indemnity costs be awarded throughout?
b. Can I consider offers made in mediation or in a pre-trial, and if so, can I award substantial indemnity costs from the date of offers made during those meetings?
c. Are the costs claimed by the Plaintiffs reasonable?
d. When determining if the costs are reasonable, should the Defendant be entitled to review the contingency fee agreement (“CFA”) between the Plaintiffs and their lawyer? If so, may I draw an adverse inference against the Plaintiffs due to their refusal to produce same?

VI. Analysis

A. Victims’ Bill of Rights

[14] The applicable sections of the Victims’ Bill of Rights are as follows:

3 (1) A person convicted of a prescribed crime is liable in damages to every victim of the crime for emotional distress, and bodily harm resulting from the distress, arising from the commission of the crime.

4 (1) This section applies to a civil proceeding in which the victim of a crime seeks redress from a person convicted of the crime for harm suffered as a result of the commission of the crime.

(2) A judge shall not make an order under the rules of court requiring a victim to provide security for costs unless the judge, having considered the spirit and purpose of this Act, considers that it is necessary to do so in the interests of justice.

(6) A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.

[15] It is agreed that Gurjap Toor pleaded guilty to impaired driving causing death and impaired driving causing bodily harm, both offences under the Criminal Code of Canada. Despite this, Gurjap Toor did not defend this action. Gurjap Toor did not resist the lawsuit, nor did he participate in the trial, other than to be a witness. Gurjap Toor was noted in default and the verdict of the jury was made against both him and Toor.

[16] It is also agreed that Toor, who did actively defend the lawsuit, was not charged with any criminal offence. Also, the Victims’ Bill of Rights was not pleaded by the Plaintiffs.

[17] I find that in this case, the Victims’ Bill of Rights would apply. The Plaintiffs were victims of a crime perpetrated by Gurjap Toor. They sought redress from him as well as others that were involved in the accident. The Victims’ Bill of Rights does not state that it does not apply if the person convicted of the crime did not defend the lawsuit.

[18] The applicability of the Victims’ Bill of Rights is also supported in the case law. In the decision of Evans v. Sproule, the Plaintiff commenced a civil claim for damages arising from a sexual assault. The assault was committed by an on-duty police officer. The victim sued both the officer and the Toronto Police Services Board. The officer was convicted of indecent assault and resigned from the police force. The officer did not defend the action and default judgment had been entered against him. The police services board was found vicariously liable for the officer’s actions and the Plaintiff was awarded damages accordingly.

[19] In considering costs, Justice Chapnik found that s.4(6) of the Victims’ Bill of Rights applied prima facie to both the officer and the police services board. The Plaintiff was awarded solicitor and client costs for the entirety of the action.

[20] In K.T. v. Vranich et al., 2011 ONSC 683, the Plaintiff commenced an action for damages arising from a sexual assault by her manager at the bar where she worked. She sued the assaulter, the bar and the property owner. The assaulter pleaded guilty to sexual assault. None of the defendants defended the action. The trial judge found the individual defendant liable and the bar vicariously liable for his conduct. The property owner was found to have no liability. The judge was then required to assess the damages and determine costs. Even though neither the assaulter, nor his employer defended the action, the judge awarded costs on a substantial indemnity basis, in accordance with the Victims’ Bill of Rights Act.

[21] In Macleod v. Marshall et al., 2018 ONSC 5100, a trial judge was asked to set costs following a three-week jury trial, where the Plaintiff was successful. The Plaintiff was the victim of sexual assault at the hands of a priest. In addition to the priest, he sued the priest’s religious order, the school board and the local diocese. The religious order admitted vicarious liability for the actions of the priest early in the proceedings.

[22] The Plaintiff sought substantial indemnity costs pursuant to the Victims’ Bill of Rights. He argued that such an order shall be made unless it would not be in the interests of justice. In this case, the religious order argued that costs on a partial indemnity basis were in the interests of justice.

[23] Justice Gans agreed with the Plaintiff. He relied on a long line of legal authority that awarded substantial indemnity costs to the victims of sexual assault, even without reference to the Victims’ Bill of Rights. He found it would not be in the interests of justice to deny the Plaintiff his full costs.

[24] Finally, in Doran v. Melhado, 2016 ONSC 2010, a lawsuit was commenced by the Plaintiff as a result of damages he sustained when assaulted by Mr. Malhado. Mr. Malhado had earlier been found guilty of assault, contrary to the Criminal Code. The Plaintiffs brought a motion for summary judgment as to liability, which Mr. Malhado did not defend. The Plaintiff was successful. A short trial ensued on the issue of damages. All parties agreed that the Plaintiff was entitled to his costs, but they disagreed on the scale. The Plaintiff sought substantial indemnity, citing the Victims’ Bill of Rights.

[25] In his decision, Justice Emery noted that elevated costs were appropriate in circumstances where it is authorized by statute. He points to the opening words of s.131(1) of the Courts of Justice Act, which state:

131 (1) 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 (emphasis mine).

[26] Justice Emery then stated that s.4 of the Victims’ Bill of Rights is such an act. Having heard no evidence that it would not be in the interests of justice to make such an award, he found compelled to award costs on a substantial indemnity basis throughout. In fact, he stated that even considering the overall principle of proportionality, substantial indemnity costs were appropriate. He stated:

[57] Proportionality does not apply to the determination of the costs in this case. Section 131(1) of the Courts of Justice Act provides me with discretion that is subject to the rules of court or any Act. Section 4(6) of the Victims Bill of Rights 1995 mandates that I award costs on a solicitor client or substantial indemnity basis unless it is not in the interests of justice to do so. As I have already found that the interests of justice do not preclude an award of costs on this scale, considerations of proportionality under Rule 1.04(1.1) to reduce the costs award to the plaintiffs in this case are not applicable. Where Section 4(6) of the Act applies, a costs award that enhances access to justice trumps proportionality under the Rules.

[27] In the end, while substantial indemnity costs were awarded, when reviewing the various factors under r.57.01, he found that it was “fair and reasonable” that these substantial indemnity costs be set at $65,000 plus taxes and disbursements, and not the sum of $128,000, as requested.

[28] The applicability of the Victims’ Bill of Rights has also been rejected. In Shukster v. Young, 2015 ONSC 7525, the Plaintiff sought to amend her Statement of Claim to include a claim for a declaration that she was a victim of crimes seeking redress from the Defendant, a person convicted of a crime as within the provisions of the Victims’ Bill of Rights, and then sought costs on a substantial and indemnity basis pursuant to said Act. She then sought summary judgement on that amendment.

[29] Ms. Shukster was injured as a passenger in a car driven by Mr. Young. Mr. Young was not licensed and was not driving the car with the consent of the owner. Ms. Shukster made a claim against Mr. Young pursuant to the Motor Vehicle Accident Claims Act, and reached a settlement of $200,000, inclusive of interest, being the maximum amount that could be paid pursuant to the Motor Vehicle Accident Claims Act. Mr. Young pleaded guilty to dangerous driving and taking a motor vehicle without consent, both criminal offences.

[30] In this case, the motions judge dismissed the motion. He found that such an amendment was a new cause of action. It was sought 13 years after the action in question. He found that it would cause non-compensable prejudice to Mr. Young. The late amendment prevented him from obtaining legal advice on the issue of the Victims’ Bill of Rights. It was particularly important in this case as the authority of the Motor Vehicle Accident Claims Fund to defend an action on behalf of an uninsured defendant is restricted to the defense of the claim of negligence only. The additional costs sought would fall outside this mandate. Also, the statutory limitation period had expired. The motions judge noted that the enhanced costs under the Victims’ Bill of Rights can only be awarded where it is not an injustice to do so. He found that he had insufficient evidence from the moving party to show that an enhanced costs award was not an injustice.

[31] In this case, I do find that an award of substantial indemnity costs throughout is appropriate. I have seen no evidence, nor heard any submissions that would show that such an award would not be in the interests of justice. Although Toor was not convicted by a criminal offence, Gurjap Toor was. Also, Toor is liable for the actions of Gurjap Toor by virtue of s.192 of the Highway Traffic Act. This section states:

192 (1) The driver of a motor vehicle…is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or streetcar on a highway.

[32] This liability is not dissimilar to the vicarious liability on the part of the police services board, an employer or a religious order.

[33] As for the Plaintiffs’ failure to plead the Victims’ Bill of Rights, this is not fatal to the Plaintiffs’ position on costs. The Plaintiffs did claim substantial indemnity costs. They also pleaded that Gurjap Toor committed an offence contrary to the Criminal Code. The Defendant was given an opportunity to address the Victims’ Bill of Rights in their costs submissions. There is no prejudice to the Defendants just because the Victims’ Bill of Rights was not pleaded in the Statement of Claim.

B. Offers to Settle at Mediation or at a Pre-trial

[34] Given my decision that substantial indemnity costs are appropriate throughout, it is not necessary to determine this issue.

C. The Contingency Agreement

[35] Before I determine the appropriate costs, it would be prudent to determine whether the Plaintiff should be compelled to provide their CFA.

[36] Mr. Kirby requested to see Mr. Katz’ CFA with the Plaintiffs. Mr. Katz refused. Mr. Kirby asks that I draw an adverse inference from that refusal.

[37] In Block v. Brown et al., 2022 ONSC 3199, Justice Shaw was asked to determine costs of an action. She was asked to consider the terms of the contingency agreement, which the Plaintiff did not produce. The Defendant submitted that the contingency fee agreement was important so as to ensure that any costs award did not exceed what was actually charged. After reviewing the caselaw, including several decisions from the Court of Appeal for Ontario, at para. 76, Justice Shaw concluded that a contingency fee agreement is an agreement between counsel and their client. The contents thereof have little impact on what she was required to review to ensure that a fair and reasonable costs order was made.

[38] I note that in ss. 20 and 20.1 of the Solicitors Act, it is stated that a contingency fee agreement should not impact a costs award. Specifically, s. 20(1) provides that a contingency fee agreement does not affect the amount, or any right or remedy for the recovery, of any costs recoverable from the client by any other person. Section 20.1(1) specifies that in calculating the amount of costs for the purposes of making an award of costs, a court shall not reduce the amount of costs only because the client’s solicitor is being compensated in accordance with a contingency fee agreement: Bondy-Rafael v. Potrebic, 2019 ONCA 1026, para 56.

[39] Mr. Kirby referred me to the decision of Selby v. Naray, 2023 ONSC 6302, where Justice McCarthy laid out those circumstances in which the contents of a contingency agreement should be disclosed. He indicated that it is difficult to give any weight to the hourly rate charged and hours worked when it has little to do with what is charged to the client. While contingency agreements are a normal occurrence, it is with an understanding that the costs awarded will defray or offset the costs charged to the client under the contingency fee agreement. In the case before him, Justice McCarthy was concerned because the fees claimed were approximately 39% of the overall net recovery for damages, which is more than the conventional contingency fee arrangement.

[40] In the case before me, such a concern is not present. Mr. Katz maintains their contingency fee is approximately 30%. The amount of the award by the jury amounts to $2,154,000 plus interest and disbursements. The highest amount sought by the Plaintiffs is $512,000, inclusive of fees, taxes and disbursements. This is less than 25% of the award. This will not offend the principle of indemnity.

[41] Accordingly, I draw no adverse inference from the failure of Mr. Katz to produce the CFA. In the end, I am bound by the Courts of Justice Act, and the Rules, and the principles espoused therein, when determining costs.

D. Costs that are Fair and Reasonable

[42] As indicated, s. 131 of the Courts of Justice Act states that subject to an act or the rules, the costs of, and incidental to, a proceeding are in the discretion of the court.

[43] I have already discussed the Victims’ Bill of Rights. Also at play is r. 57.01(1) which lists a broad range of factors for the court to consider, including the result achieved in the proceeding, the complexity of the proceeding, the importance of the issues and whether any step in the proceeding was improper, vexatious, or unnecessary.

[44] As stated by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario, fixing costs involves more than merely calculating the docketed hours and using the cost grid. At para. 24, Armstrong J.A. cites approvingly to para. 4 of the Court of Appeal’s decision in Zesta Engineering Ltd. v. Cloutier:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[45] The purpose of an award of costs are to indemnify the successful party of the legal costs they incurred, to encourage settlement, to deter frivolous actions or defences and to discourage unnecessary steps that unduly prolong litigation: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., para 26; Fong v. Chan, para 22.

[46] The overriding principle is that the amount of costs awarded must be fair and reasonable in the circumstances: Davies v. Clarington (Municipality), 2009 ONCA 722, paras 51-52; Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135, para 127.

[47] I must approach costs in a two-step manner. First, I must undertake a critical examination of all the relevant factors as indicated above. Then, I must take a step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable: Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para 60.

Success

[48] All parties agree that the Plaintiffs were successful and are entitled to their costs. The jury awarded the total sum of $2,154,000 in damages.

Experience of Counsel and Rates Charged

[49] Mr. Katz was the counsel of record for the entirety of the file. It is important to note that it took 10 years between the date of this tragic accident to the date the jury released its verdict. During that period of time, Mr. Katz’ rate ranged from $600 per hour to $800 per hour. His substantial indemnity rate changed from $540 to $720 per hour. He had an articling student and various clerks assist him throughout who billed out at $150 to $175 per hour. These rates are also reasonable and help to reduce the overall cost of the action and trial.

[50] Mr. Katz has been practicing for 25 years and is certified as a specialist in civil litigation. He is highly regarded by his peers.

[51] Mr. Kirby is also very experienced and in fact, has been practicing longer than Mr. Katz. He is also well regarded by his peers. Over the period of this file, his rate ranged between $325 to $372 per hour. The lower fee charged by Mr. Kirby is not a reflection of his experience or expertise, but more a reflection of an agreed upon fee to be paid by an institutional client.

Costs that one would expect to pay

[52] The Plaintiffs have provided their lawyer’s dockets which show time that is the equivalent of $439,634, exclusive of tax. He claims a total of 861 hours between all the members of his firm involved. This is over a 10-year period, and includes pre-litigation investigation, pleadings, communications, preparation and attendance at discoveries, review of productions both before and after discoveries, retaining of experts, preparation and attendance at mediation, pre-trial preparation and attendance at 6 separate pre-trials, and then preparation and attendance at trial. This was on behalf of seven clients. As indicated, he utilized the services of clerks and a student. His costs up until his trial preparation started in earnest in April 2024, were only $153,300, which is not unreasonable given the 10 years of work invested. The cost of trial was $286,334, which covered a 13-day jury trial. During a trial, it is normal for counsel to work prior to trial on that day, and to continue their preparation in the night. There is also substantial preparation required for every day of trial. The amount of time invested in this file does not seem unreasonable.

[53] By contrast, Mr. Kirby charged his client approximately $155,000 for the entire file, which included a companion action which was settled earlier. That being said, the issues and most of the witnesses would be similar between the two actions, allowing for a significant savings. Mr. Kirby’s fees are approximately thirty percent (30%) of Mr. Katz’s fees.

[54] The hours spent by either party, are not as disparate as the fees would indicate. The Plaintiffs have claimed 861 hours. If Mr. Kirby’s total cost of $155,000 are divided by an average of his hourly rates throughout, it shows he worked approximately 440 hours – or approximately half of Mr. Katz’ hours. It is not unusual for defence counsel to not spend as much time on trial as the Plaintiff, given their burden of proof, and the Defence accepted that in their submissions. The Plaintiffs’ fees are expected to be higher. Given Mr. Kirby’s lower hourly rate, the disparity is not as great as it would appear at first glance. Given the length of the action, the length of the trial, the issues at play, the experience of counsel and the number of Plaintiffs, the Defendants should not have been surprised by the costs claimed.

Apportionment of Liability

[55] Kharmveer Gill, the young man who was killed, was found to be contributorily negligent, but only by five percent (5%). I will take this into account in setting costs.

Complexity

[56] The trial was made more complex by the number of Plaintiffs and claim for loss of support that was unique to the Plaintiffs’ culture. In addition, the Defendants raised the issue of whether Gurjap Toor had his Mother’s consent to drive. That was not an issue raised by the Plaintiffs but was an issue to be litigated between the two Defendants.

[57] The trial lasted 13 days. There were twenty-one witnesses, only four of which were called by the Defendants. There was expert evidence on economic losses. While this trial was not one of the most complex that this court sees, there particular aspects of the trial as stated herein, that made this matter more complex than a “usual” motor vehicle accident claim for damages.

Offers to Settle

[58] The parties agree that the first offer to settle that would fall within rule 49 occurred on December 16, 2021. On that day, the Plaintiffs offered to resolve the action for the sum of $782,725 plus interest, costs, disbursements, and taxes. Clearly, the Plaintiffs received a more favourable award from the jury.

[59] I have also considered the number of offers that the Plaintiffs made, and the number that the Defendants made, as a sign of their reasonableness throughout.

[60] Both parties made efforts to resolve the matter at mediation and at the various pre-trials, the details of which I will not disclose. As for offers to settle, outside of mediation or a pre-trial, the Plaintiffs made several attempts. Toor did not make an offer until May 6, 2024, on the eve of trial. The Plaintiffs submit that this was the first offer (outside of mediation or pre-trials) that Toor made in almost 10 years.

[61] I also note that as the trial approached, the offers made by the Plaintiffs were significantly less than what the jury awarded.

What is Fair and Reasonable

[62] If I were to award substantial indemnity costs throughout, that would amount to $395,670.60 plus taxes and disbursements. If I adjust it for the finding of contributory negligence, and reduce this amount by five percent (5%), that would result in a costs award of $375,887.07, plus disbursements and taxes, for a total of $490,368.86.

[63] The Defence maintains that the sum of $200,000 for legal costs, plus taxes is reasonable in this case. I disagree. Those costs would not even cover the cost of trial for the Plaintiffs. The length and complexity of the trial itself justifies more than the fee proposed by the Defence.

[64] I also note that the substantial indemnity costs (reduced by 5%) are still less than 25% of the total award. The Plaintiffs were successful. They offered to settle the action for a fraction of what they were awarded. There were numerous Plaintiffs. There were unique cultural issues at play. Their claim was complicated by a dispute over consent, which was not their issue. This matter took ten years, from the date of this tragic accident to the day the jury gave their verdict.

[65] Stepping back, and considering the Plaintiffs’ success, the amount of time involved, and the reduction by 5% to take into consideration contributory negligence, I am satisfied that the substantial indemnity cost award is fair and reasonable in the circumstances.

VII. Conclusion

[66] Based on the foregoing, I find that costs of this action should be paid to the Plaintiffs on a substantial indemnity basis, calculated as follows:

• Costs: $375,887.07
• H.S.T.: $48,865.32
• Disbursements: $65,616.47
• Total: $490,368.86

Fowler Byrne

Released: February 19, 2025