Cairns v. Ellis, 2025 ONSC 2303
Court File No.: CV-17-1348-00
Date: April 14, 2025
Superior Court of Justice – Ontario
Between:
Rexine Cairns, Plaintiff
and
Corey Edgar Ellis, Defendant
Before: E. Ria Tzimas
Heard: In Writing
Counsel:
- S. Uppal, J. Palmer, and V. Merja, for the plaintiff Rexine Cairns
- V. Tanner and S. Tathgur, for the defendant Corey Edgar Ellis
Costs Endorsement
Introduction
[1] The Defendant seeks costs of this action of $269,264.87, inclusive of all fees, disbursements, and applicable taxes. Broken down, this means partial indemnity fees of $160,899.57 and $108,365.30 in disbursements. In the spirit of reasonableness, the Defendant submitted a willingness to accept an award for full disbursements as claimed and a reduction in fees to $126,634.70, for an all-inclusive award of $230,000.
[2] Considering the net zero outcome at trial, counsel submits that the costs claim is fair and reasonable, it reflects counsel's experience, the length of the trial, the number of witnesses, and the number of motions argued both just before and during the trial.
[3] The Plaintiff agrees that the Defendant is entitled to some costs but disagrees with the sum claimed. Counsel submits that a more appropriate response in the circumstances would be a costs award of no more than $50,007.75. The figure is based on the approximate value of the $40,000 costs award ordered in Dawod v. Jasey, 2016 ONSC 7427, as adjusted for inflation. Substantively, counsel submits four arguments in support of the Plaintiff’s position:
i. the Plaintiff's precarious financial means;
ii. the Defendant's "scorched earth approach" to the litigation and its refusal to leave open the possibility of a graceful exit;
iii. the Plaintiff’s gross success; and
iv. the mixed success in relation to the in-trial motions.
[4] The Plaintiff was involved in a motor vehicle accident on January 6, 2016. The trial began on the week of May 13, 2024 with the selection of a jury and concluded on June 10, 2024. The jury found the defendant liable and awarded general damages of $17,500 and past lost income of $1,280. The jury did not award any damages for future loss of income or housekeeping. By operation of the statutory monetary deductible and the collateral deduction provisions under the Insurance Act, RSO 1990, c I.8, the jury's awards were reduced to zero.
[5] For the reasons that follow, I fix costs at $185,000.00 inclusive of fees, disbursements, and applicable taxes. The Defendant may allocate this award to fees and disbursements, as it chooses.
Analysis
Applicable Legal Principles
[6] Subsection 131(1) of the Courts of Justice Act, places the ability to award costs in the Court's discretion. Subrule 57.01(1) of the Rules of Civil Procedure, Ont. Reg. 194, RRO, as amended, outlines a list of factors that may be taken into account in the determination of costs:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) 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;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious, or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;
(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and
(i) any other matter relevant to the question of costs.
R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1; O. Reg. 689/20, s. 37
[7] The law of costs is well settled. A successful party to civil litigation in Ontario is entitled to receive costs unless there are special circumstances. The quantum of such costs is in the discretion of the court. The result of a proceeding is a consideration, but it is not the exclusive consideration. The overall objective of fixing costs is to arrive at a figure that is fair and reasonable in the circumstances, see: Przyk v. Hamilton Retirement Group Ltd. (The Court of Rushdale), 2021 ONCA 267, paras. 11-13, and Boucher v. Public Accounts Council for the Province of Ontario. The court in Neary v. Aviva Insurance Company of Canada, 2024 ONSC 2510 held that costs rules are designed to foster the indemnification of the successful party, the encouragement of settlements, and the discouraging of inappropriate behaviour by litigants.
[8] In this instance, the net zero outcome means that the Defendant was successful and is entitled to costs. I will turn to consider the Rule 57 factors and the parties’ respective submissions.
Amount Claimed and Amount Recovered
[9] The costs claimed are high and disproportionate to the defence’s assessment of the strength of the Plaintiff’s claim and the outcome. Disbursements of over $100,000.00 on account of an unmeritorious claim, which was the defence’s consistent view, are difficult to reconcile. Even more concerning is the observation that of the total disbursements, $60,000 was for services associated with two doctors, Dr. Paitich and Dr. West. Approximately $30,000 was charged through Seiden Health Management and another $30,502 through direct invoicing by the doctors, ($23,052.00 by Dr. Paitich and $7,450 by Dr. West).
[10] The defence withdrew the participation of these proposed expert witnesses in response to the Plaintiff's motion to have them disqualified. The voir dire for Dr. Paitich was almost completed before counsel advised the court that she would be withdrawing him as a witness. There was no voir dire for Dr. West. Given this development, I have difficulty recognizing anything more than a nominal sum for reimbursement, as part of the overall costs award.
[11] The fees outlined in the Bill of Costs are also high and lack sufficient particulars. The Defendant reports approximately 1000 hours in total fees. Those hours translate to $268,165.95 for full indemnity and $160,899.99 for partial indemnity.
[12] In my review, 94 hours for the initial general review for a straightforward motor vehicle accident claim is high. In the absence of detailed dockets, I fail to see any justification for what would have been a routine review and assessment. The involvement of several individuals for that review raises the concern that there was a duplication of effort. In the same vein, 194 hours for trial preparation, without any detailed breakdown of the specific activities by two lawyers, an articling student, and a law clerk, amplifies the concerns over duplication.
[13] The hours claimed for the trial are also concerning. The trial unfolded over the course of 17 days. Because of difficulties with in-trial motions and some technical issues with Case Centre, some of these days were not full day sittings. The Defendant claims 280 for each of the two lawyers who attended at trial. 280 hours per lawyer would mean 16.5 hours per day, without any differentiation or explanation on whether these hours were uniform across the 17 days, whether there were any days off, or whether those hours included time before and after the court attendances for preparation. At 10 hours per day, 280 hours suggest a trial of 28 days. At 14 hours per day, those same hours suggest a trial of 20 days.
[14] These discrepancies are problematic for a number of reasons. Although there can be no doubt that trial days involve long hours for court attendance and preparation, the indiscriminate rounding up of those hours without any further explanation makes it difficult to evaluate the accuracy of the accounting and the veracity of the claim. I find it odd that the two counsel who attended at trial would be reporting the exact number of billable hours. Apart from the core seven or eight hours in court, counsel would have had discreet tasks and responsibilities, with varying time requirements. They would have also taken breaks for meals and rest.
[15] When I take all this into account, I can only conclude that the uniform claim of 280 hours per counsel is the result of a general rounding up of the hours claimed. This may represent a practical approach to estimating the trial hours, but without such an express acknowledgment, the accuracy and reliability of the Bill of Costs is undermined.
[16] As for the outcome in the case, I cannot ignore the fact that the jury was not persuaded by the defence’s theory and its submission that the Plaintiff not be awarded any damages. The net-zero outcome of the trial is by operation of the Insurance Act. Juries are never advised of the implications of the Insurance Act on their decision. In this jury's view, they awarded damages to the Plaintiff, however modest. In the result, the defence’s success was mixed.
[17] Given these concerns, costs on a partial indemnity scale, adjusted for fee duplication, accounting discrepancies and proportionality considerations, as discussed above, is the appropriate approach.
Apportionment of Liability, Complexity of the Proceeding, Importance of Issues, Parties' Conduct, Improper, Vexatious, or Unnecessary Steps, and Denial or Refusals of Admissions
[18] The apportionment of liability was not an issue in this case. The Defendant was found to be liable for the motor vehicle accident.
[19] As for complexity, there was nothing complex about the claim. The plaintiff was injured in a motor vehicle accident. She had a significant pre-existing medical history, and she had retired just prior to the accident. Her injuries involved chronic soft-tissue injuries, for which she received accident benefits and chiropractic care.
[20] The proceeding became unnecessarily complicated by the efforts by both sides to lead expert evidence by individuals whose impartiality was questionable. Although these efforts did not rise to the level of being vexatious or improper, better strategic thinking would have enabled counsel to recognize the weaknesses in their respective requests and positions.
[21] For example, on the Plaintiff’s side, counsel’s insistence on calling Dr. Basile even though the Defendant alerted him to very serious flaws in the doctor’s methodology and impartiality, proved futile. Cumulatively, the motion to exclude Dr. Basile unfolded over more than two days, it disrupted the doctor’s other obligations, and it resulted in his express disqualification from the trial. On the Defendant’s side, although the Defendant eventually withdrew two of the proposed expert witnesses, that decision was made almost at the conclusion of a voir dire on Dr. Paitich’s qualifications that was not going well. A better assessment of the Plaintiff’s concerns in relation to Dr. Paitich by the Defendant’s counsel could have obviated the need for a voir dire. All told, these steps added approximately four days to the trial with no net benefit to either side.
[22] From a costs point of view, the various challenges added four days to the trial. Although the defendant’s motion to disqualify Dr. Basile was successful, the two days that were needed for that motion were cancelled out by the couple of days for the motions the Plaintiff brought in relation to Dr. Paitich’s participation and the motion to obtain leave to use demonstrative evidence in the Plaintiff’s opening statement.
[23] The Plaintiff's failure to organize the family doctor's notes in a rational and efficient manner contributed significantly but unnecessarily to the length of the trial. With a properly organized chart, the admission of a basic chronology of care, and possibly other agreed facts, the family doctor should not have had to testify for more than a few hours. Instead, the doctor was kept on the stand for several hours, over a few days, and without good reason. On this specific concern, I acknowledge the defence’s efforts to assist Plaintiff’s counsel with pinpoint references, and generally with a focused cross-examination.
[24] These concerns also support an award on a partial indemnity scale, with some discount for the unnecessary motions.
Other Considerations
[25] The Plaintiff raised her precarious financial position and the Defendant's "scorched earth" approach to settlement as additional considerations for the substantial reduction in the Plaintiff's costs claim. I have difficulty accepting these submissions for the following reasons.
[26] Beginning with the Plaintiff’s financial position, since she is on social assistance, it is unlikely that the Defendant would be able to collect a costs award. In that sense, I agree that nothing is to be gained from a large costs award. But that would be the case whether the award is large, small, or nominal. On the other hand, costs awards can be didactic and speak to the responsibilities associated with the pursuit of a claim. Proceeding to trial has consequences. In this case, having regard for what was presented at trial, the Plaintiff’s case had obvious weaknesses. When I pair that up with what was likely a misguided litigation strategy, a reduction in the costs award on the basis of the plaintiff's impecuniosity runs the risk of condoning a “nothing to lose” approach to litigation. While litigants are entitled to pursue litigation, they must also be accountable for the risks they take. A nominal award, as proposed by the Plaintiff’s counsel, in the specific circumstances of this case, could be taken to condone steps in the litigation that were unnecessary and ill-advised. In the circumstances of this case, such an award would not be fair and reasonable.
[27] As for the Plaintiff's “scorched earth” argument against the Defendant, that submission was unfortunately misleading and not in accord with the exchanges between the parties. The Plaintiff’s counsel advanced this argument without a corresponding evidentiary record. He implied that the Plaintiff would have accepted a graceful exit, if one were put before her for her consideration. My understanding of a “graceful exit” would be a nominal settlement, if not an outright dismissal without costs.
[28] Knowing that the Defendant’s insurer has a reputation for being unbending in its defence positions and certainly not settlement oriented, I nonetheless needed to verify the settlement record for this case to avoid any unfair characterizations. I asked the Plaintiff’s counsel for supplementary submissions on what, if any, settlement offers may have been exchanged.
[29] In response, I learned that the Defendant did not take a “scorched earth” approach to this case. Although the Defendant was far from generous in its approach to the negotiation of a settlement, the Defendant did offer some damages to settle the case. Specifically, Plaintiff’s counsel admitted to delivering a Rule 49 Offer on April 17, 2024, seeking the payment of $50,000 plus pre-judgment and post-judgment interest, costs, and disbursements. Subsequent offers were exchanged on May 2, 2024. The Plaintiff's final offer was $30,000, all inclusive. The Defendant made an offer of $15,243.91, though it was not advanced as a Rule 49 offer.
[30] In the supplementary submissions, the Plaintiff’s counsel noted: "The Plaintiff's offer was specifically time limited to May 3, 2024 at 2:00 p.m. Although the Defendant's offer was not delivered as a time limited offer, it is understood by the Plaintiff that all offers were revoked prior to Trial and no offer forms part of the Defendant's costs submissions as received." There was no evidence that the Plaintiff was ever interested in the Defendant’s offer of $15,243.91. In other words, there is no evidence before the court that the Plaintiff was ever interested in a graceful exit.
[31] Given these supplementary submissions, I am at a loss over the Plaintiff’s original “scorched earth” submission. There can be no doubt that the Defendant’s offer was not generous. But it was not far from the jury’s award. The offer that would have allowed the Plaintiff a graceful exit from the litigation, but the Plaintiff evidently preferred to take her chances by proceeding to trial.
[32] In these circumstances, I find it rich for the Plaintiff to be critical of the Defendant’s approach to settlement. Even more surprising was counsel’s indication that going into trial the Plaintiff had failed to maintain an open Rule 49 Offer for the Defendant’s consideration. This is a critical oversight. Especially given the outcome at trial, a Rule 49 offer, even for a nominal sum would have gone a long way to limiting the Plaintiff’s costs exposure.
[33] Insofar as the Plaintiff was critical of the Defendant for not referring to any settlement offers in his own submissions; I fail to understand the significance of that submission. The Defendant did not tie his claim for costs to any settlement exchanges. Nor was the Defendant critical of the Plaintiff’s approach to any settlement offers. There was, therefore, no need to refer to any offers.
[34] Finally, although the subject of whether the Plaintiff had insurance coverage for costs was raised by both sides, a discussion of the corresponding implications was incomplete. The Defendant reported on the Plaintiff’s unwillingness to confirm the existence of such a policy but did not ask for a corresponding remedy. The Plaintiff responded that this inquiry was irrelevant, without admitting to or denying the existence of any such policy. In the circumstances, I have nothing to say about this issue.
Conclusion
[35] In the result, having regard for my various concerns, I exercise my discretion and fix costs in the Defendant's favour at $185,000, inclusive of fees, costs, and applicable taxes. The sum is fair and reasonable having regard for my various concerns, as discussed above.
[36] Practically speaking, the key difference between the Defendant’s proposal of $230,000, which effectively reduced fees to approximately $126,000 and my award result lies in my reservations over the disbursements claimed. In other words, if I accept the reduction in fees to the Defendant’s proposed $126,000, and allow $60,000 or so in disbursements, I arrive at the figure of $185,000.
[37] That said, I leave it to the Defendant to decide on how to allocate the court’s overall costs award across its fees, disbursements, and applicable taxes.
E. Ria Tzimas
Date: April 14, 2025