Court File Numbers

CV-15-6178; CV-15-6241

Date

2025/04/28

Ontario Superior Court of Justice

Between:

Lynda Lounds, Plaintiff
– and –
Harry Lounds, Defendant

Counsel for the Plaintiff: Dale Orlando, Lindsay Charles
Counsel for the Defendant: Sandi Smith

AND

Darren MacIsaac and Lynn Connor, Plaintiffs
– and –
Harry Lounds and Lynda Lounds, Defendants

Counsel for the Plaintiffs: Marc-Nicholas Quinn
Counsel for the Defendants: Sandi Smith

Heard: In writing

Reasons for Decision on Costs
M.G. Ellies

Overview

[1] Two actions arose out of a motor vehicle accident which happened on January 17, 2014, in which a car being driven by Harry Lounds collided with a car being driven by Darren MacIsaac. The actions were settled at a judicial pre-trial (“JPT”) held on September 12, 2024. However, the parties were unable to agree on the issue of costs.

[2] With respect to the Lounds action, the insurer for the defendant takes issue with certain disbursements. With respect to the MacIsaac action, the insurer takes issue not only with certain disbursements, but also with the amount of the fees sought.

[3] For the following reasons, the disbursements claimed in both actions are reduced slightly and the fees sought in the MacIsaac action are allowed in the amount of $60,000.00, exclusive of HST.

Factual Background

[4] It is helpful to understand that the big impediment to settlement in these two cases was the inadequacy of the insurance policy limits on the Lounds vehicle, which were one million dollars, exclusive of costs. The size of the claims being made in each action put the insurer in a difficult position. Unless it could settle the damage claims in both actions for one million dollars or less in total, it faced the threat of a bad faith claim by its insured, which claims are often assigned by the underinsured defendant to the plaintiffs to pursue. According to a message from counsel for Mrs. Lounds, it was not until July 1, 2024, that the plaintiffs in both actions agreed to settle their claims for the policy limits, plus costs, and to apportion their damages as between themselves. Unfortunately, however, this proposal was not satisfactory to the insurer and the matters continued to be listed for trial until they were settled last September.

[5] It is also important to note that these actions were transferred from North Bay to Ottawa and were set for trial beginning on October 7, 2024, during a six-week civil trial “blitz”: see Lounds v. Lounds; MacIsaac v. Lounds, 2024 ONSC 4709.

[6] With that factual backdrop in place, I turn now to a brief discussion of the relevant legal principles before turning to the specifics of the dispute between the plaintiffs and the insurer.

Legal Principles

[7] Under s. 131 of the Courts of Justice Act, RSO 1990, c C.43, the costs of or incidental to a proceeding are in the discretion of the court, subject to any Act or rule of court.

[8] Rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, sets out a non-exhaustive list of factors the court may consider in exercising its discretion under s. 131.

[9] Rule 57.01(3) requires the court to fix costs in accordance with subrule (1) and the Tariffs promulgated under the rule. Under s. 35 of Part II of Tariff A, the court may allow a reasonable amount for any disbursement not specifically mentioned in the Tariff that is “reasonably necessary for the conduct of the proceeding”.

The Lounds Dispute

[10] The Lounds action was settled for the sum of $645,000.00, inclusive of pre-judgment interest, but exclusive of costs. With respect to the fees portion of the party-and-party costs, the parties agreed that costs should be paid on the usual basis, meaning 15 percent of the first $100,000.00 and 10 percent on the balance. This amount totalled $78,535.00, inclusive of HST. In addition, the plaintiff also sought the payment of disbursements in the amount of $134,661.71, including HST. The insurer disputes disbursements totalling $15,932.76, including HST.

[11] I will deal with each disbursement or group of disbursements separately.

Housing Accessibility Report

[12] The insurer objects to paying $1,768.75 in connection with a housing accessibility report dated February 5, 2018, prepared by Adaptable Design Group. It is common ground that the report was obtained by the plaintiff in connection with her claim for accident benefits (“ABs”). As the insurer points out, s. 25 of the Statutory Accident Benefits Schedule (SABS) allows for the payment of a report delivered to the AB insurer.

[13] The insurer objects to the disbursement claimed for three reasons.

[14] The insurer's first reason for objecting to the cost of the housing accessibility report is that the report was prepared in connection with the plaintiff’s AB claim, rather than the tort claim. However, the fact that the report was obtained primarily, or even exclusively, in connection with the plaintiff’s claim for ABs does not disentitle her from seeking reimbursement from the tort insurer for the cost of the report. In Cadieux v. Cloutier, 2018 ONCA 903, the Court of Appeal held, at para. 129, that legal fees and disbursements incurred by a plaintiff in pursuing a SABS claim can reasonably be considered incidental to the pursuit of the tort claim where the SABS have reduced the damages payable by the tort fees. This is what I believe happened here, given the value of the plaintiff’s claim compared to the amount for which it settled. While the Court of Appeal in Cadieux preferred a line of cases making the right to recover such disbursements case specific, I see no reason in this case not to permit such recovery.

[15] Secondly, the insurer maintains that it has not been provided with any information about why the cost of the report was not covered by the AB insurer. However, as the insurer makes clear in its submissions, it did not have the benefit of seeing the written submissions of the plaintiffs in each action before providing its own submissions. On behalf of Mrs. Lounds, counsel has explained that the cost of the report was $9,299.90 and that the AB insurer did pay $7,265.90 of that cost as part of the settlement of the AB claim. According to her counsel, Mrs. Lounds seeks $1,964.00 of the unpaid amount of $2,034.00. In my view, the insurer’s objection about a lack of information has now been satisfied.

[16] The insurer’s third reason for objecting to the request for reimbursement in connection with the housing accessibility report is that the plaintiff did not plan on calling the author of the report as an expert witness at trial. This submission is based on the fact that no Form 53 was ever delivered under r. 53.03.

[17] In my view, this objection has also been satisfactorily answered. As counsel for the plaintiff explained, the February 2018 housing accessibility report was requested in order to provide a basis for the opinion of another expert, Ms. Krause, on the costs of Mrs. Lounds’ future care. There is no indication that Ms. Krause was not going to be called as a witness. As an expert, Ms. Krause would have been entitled to rely on the February 2018 report, even if the author of the report was not called as a witness. Although Ms. Krause’s opinion might have been significantly weakened had the author of the housing accessibility report not also been called, the report was still a necessary part of Ms. Krause’s evidence.

[18] Even if neither Ms. Krause nor the author of the February 2018 housing accessibility report had been called as a witness at trial, I would still allow the claim for the costs of the report. It is not necessary that a party call an expert witness at trial to be able to claim the cost of a report from that witness as an allowable disbursement. The cost of the report may be allowed, provided the disbursement was reasonably necessary for the conduct of the proceeding and that the amount of the disbursement was reasonable: Tariff A, Part II, item 35; Mark M. Orkin, The Law of Costs, loose-leaf, 2nd ed. (Toronto: Thomson Reuters, 1987), at § 2:163; Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542, leave to appeal refused, [2021] S.C.C.A. No. 302.

Travel Costs

[19] The insurer also objects to paying $5,184.56 in travel costs. As with the plaintiff’s claim for contribution to the costs of the home accessibility report, the insurer’s objection is based on a lack of information: see Davies v. Corporation of the Municipality of Clarington, 2019 ONSC 2292, at para. 124; Breen v. Township of Lake of Bays, 2021 ONSC 1745, at paras. 42-46. However, as with the home accessibility report, the plaintiff has now provided more information. In particular, the plaintiff has explained what expenses were incurred and what those expenses were incurred for. On her behalf, counsel for Mrs. Lounds has particularized $4,376.96 worth of travel expenses incurred to attend mainly medical assessments on the part of the plaintiff, as well as court appearances on the part of counsel.

[20] The plaintiff is seeking only the value of those travel expenses counsel has explained. For that reason, I would allow the disbursements of $4,376.96, which I believe include HST.

Courier Costs, Facsimile Transmissions, Long-Distance Charges, Postage, and Portable Digital Storage Devices (CDs)

[21] The insurer objects to courier charges of $1,325.13, facsimile charges of $294.93, long-distance charges of $15.39, postage charges of $1,529.29, scanning charges of $1,703.50, software licensing fees of $75, an amount paid for “medical-legal spider” indexing of $2,557.39, and CDs at $6.78. On the insurer’s behalf, counsel submits that these charges ought to be considered general office overhead expenditures and not expenses “reasonably necessary for the conduct of the proceeding” as required by item 35 of Part II of Tariff A. The defendant relies on the decisions in Lloyd v. Bush, 2020 ONSC 2892, at paras. 102-103, and Crosslinx Transit v. Ontario, 2021 ONSC 4364, at para. 24. The plaintiffs rely on the Court of Appeal decision in Moon v. Sher.

[22] One does not have to travel very far down the jurisprudential “allowable disbursements” path to realize that it wanders over the legal landscape. It is now possible to find cases in support of totally contradictory propositions with respect to almost every disbursement. Under the same tariff, some courts have allowed and other courts have disallowed:

• photocopy costs: Orkin, at §2:176;
• facsimile charges: Orkin, at §2:177;
• binding costs: Orkin, at §2:180;
• postage: Orkin, at §2:184;
• telephone charges: Orkin, at §2:189; and
• Law Society of Ontario transaction levies: Orkin, at §2:200.

[23] In Moon, the Ontario Court of Appeal held, at para. 39, that:

It would seem, therefore, that amounts disbursed for Quicklaw [legal research] services, courier services, stationery and postage may be recoverable under Tariff item 35 if the service or expense is “reasonably necessary for the conduct of the proceeding”, the amount is reasonable and has been charged to the client, and the disbursement does not fall within standard office overhead. Indeed, as Quicklaw and similar research vehicles have become convenient aids to research, although not found in the Tariff, their costs should be recoverable as disbursements provided they are not excessive and have been charged to the client. It is for the party seeking recovery of the disbursements to satisfy these criteria.

[24] Notwithstanding this clear statement, some judges have held that expenses for such things as computerized legal research, binding, and photocopying should, generally speaking, not be allowable as disbursements. In Lloyd, at paras. 101-103, Mew J. wrote:

In my view, it has become increasingly harder as time [has] gone by, to satisfy a court that computerised legal research is not part and parcel of the ordinary overhead expense of a law practice. The law reports, looseleaf services and texts that traditionally lined the shelves of law firm and courthouse law libraries have been increasingly replaced by online resources.

The point has been reached where disbursements for computerised legal research are generally no longer recoverable in the absence of special circumstances: See Mark Orkin, The Law of Costs, 2nd ed. (Toronto: Thomson Reuters, 2018) (loose-leaf) at §219.6(9).

To similar effect, binding charges are considered as office overhead: Orkin at §219.6(7).3 and while photocopying expenses are often allowed, particularly when backed up by some evidence justifying both the number of copies and the charge per page, there is also a view that photocopying is “just part of the cost of doing business” and, thus, part of office overhead: Orkin at §219.6(7), citing Tiago v. Tinimint Housing Non-Profit Inc. at para. 5.

[25] In Crosslinx, Koehnen J. sought to reconcile these comments with those of the Court of Appeal in Moon, at paras. 23-24, where he wrote:

I am inclined to agree with the sentiments expressed in Lloyd v. Bush. Those sentiments do not, however, contradict those of the Court of Appeal in Moon v. Sher.

The key language in Moon, is that such fees are recoverable if they do “not fall within standard office overhead”. The Court of Appeal added that it was for the party claiming reimbursement to satisfy this criterion. The applicants have failed to satisfy me that their online searches do not fall within standard office overhead.

[26] I interpret the comments of the judges in Lloyd and in Crosslinx as creating a rebuttable presumption that the expenses referred to therein are part of office overhead. If I am correct in my interpretation, I am prepared to agree with my colleagues.

[27] However, if the comments of my colleagues in Lloyd and Crosslinx should be interpreted as creating a rebuttable presumption that is difficult to overcome, then I respectfully disagree. It must be remembered that, when assessing party-and-party costs on a settlement, the court does not have the benefit of having presided over a trial. It is not in a position therefore, to form its own opinion about the necessity or usefulness of any particular expense incurred for the purpose of conducting a proceeding: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, at para. 17. The court must rely to a large extent on the submissions of counsel as to the necessity and the reasonableness of the costs incurred.

[28] It must also be remembered that, when a court is assessing costs, it is not weighing the credibility of a witness in the courtroom. Instead, when considering the issue of costs, a court is usually considering the assertions of a lawyer, a member in good standing of the bar and an officer of the court. If a lawyer asserts that a disbursement was incurred for the purpose of conducting the proceeding at issue, absent any reason to question the lawyer’s assertion, that assertion ought to be accepted, in my respectful view.

[29] On behalf of Mrs. Lounds, counsel submits that the scanning, photocopying, postage, courier, mail, telephone, and CD expenses were all “case-specific costs required to run Mrs. Lounds’ litigation”, that they were “reasonably necessary”, and that they were “proper disbursements”. I have no basis upon which to question these assertions. Therefore, I am satisfied that any presumption that such expenses are part of office overhead has been rebutted. I need not look beyond counsel’s assertion at source or other documents not brought to my attention by opposing counsel.

[30] However, I do question whether there is some element of duplication between the scanning and photocopying costs that has not been contemplated by counsel. On behalf of Mrs. Lounds, counsel points out that the life of this file began before the huge technological changes brought about by the COVID-19 pandemic. However, he advises that, even prior to 2020, “virtually all documents were scanned into our computer system” including court documents, medical records, experts’ reports, and the like.

[31] Were it not for counsel’s assurance that such scanning was a case-specific cost incurred and reasonably necessary to conduct Mrs. Lounds’ litigation, I would have thought that a practice by which all documents were routinely scanned by a law firm into its computer system would be a matter of office overhead. While I am prepared to accept counsel’s assertion to the contrary, it does seem to me that modern day photocopying involves both scanning and printing. Once the documents are scanned into the computer, all that is necessary to “photocopy” those documents is to hit the “print” button. The disbursements claimed on behalf of Mrs. Lounds already include $4,378.00 for photocopies. Although it was not objected to by the insurer, because I believe that there is duplication in the scanning and photocopying disbursements, I would disallow the scanning charge of $1,703.50.

[32] I would also disallow the disbursements related to the software licensing and “Medical-legal Spider” indexing. Counsel for Mrs. Lounds has not said nothing about these particular expenses in their submissions. Frankly, I have little or no information as to what software the license fees relate, nor do I know anything about the nature of the medical legal indexing represented by this expense.

[33] For these reasons, I would allow total disbursements of $9,514.94 (in addition to those already accepted by the defendant), as follows:

• travel costs: $4,376.96;
• Adaptable Design report: $1,964.00;
• courier: $1,325.13;
• facsimile charges: $294.36;
• long distance charges: $17.39;
• postage: $1,529.92;
• CDs: $6.78

[34] I turn now to the more difficult issues relating to both fees and disbursements in the MacIsaac matter.

The MacIsaac Dispute

[35] The MacIsaac action was settled for $245,000.00 inclusive of interest, but exclusive of costs. As mentioned, the parties are unable to agree on both the fees and disbursements to be paid as costs. I will begin by addressing the disbursements at issue.

Disbursements

[36] As in the Lounds action, the insurer takes issue with claims for travel that have not been particularized, with certain disbursements that the insurer contends are really office overhead expenses, and with the cost of certain expert reports.

Travel Expenses

[37] The amount claimed for travel is exactly the sum of $2,000.00. The entry next to that number says only “travel expenses to/from North Bay (hotel, food, gas) for various court matters – MTG and MS”. I believe “MTG” stands for Mikolaj Grodzki, whom I believe was the principal lawyer on the file. I believe that “MS” stands for Michael Switzer, who was brought in as senior counsel at various times during the life of the file. I will return to the issues raised by the insurer concerning Mr. Switzer’s involvement when I address the insurer’s objections to the fees sought on behalf of the MacIsaac plaintiffs.

[38] While the decisions about allowable disbursements are all over the map, as I have explained, one of the few consistencies in the jurisprudence is the requirement that disbursements like travel costs be particularized: Davies, at para. 124; Breen, at paras. 42-46. I believe that it was especially important for the plaintiffs to particularize the claim in this case for three reasons.

[39] First, for approximately one-half of the life of the case, our court proceeded remotely with respect to what once would have been in-person court appearances. Without particularization, I cannot determine when or for what appearance counsel attended in North Bay, or whether that attendance was reasonable.

[40] Second, without more information, it is hard to determine whether it was necessary for two lawyers to travel to North Bay or not.

[41] Finally, without particulars, there is reason to believe that the amount claimed for travel may not be accurate. Rarely would the total for travel add up to a perfectly round number like $2,000.00. It is likely that this is not the actual total. I am not suggesting here that counsel is being purposely misleading. I suggest only that no one took proper account of the costs incurred for travel.

[42] The accuracy of the amount sought for travel is brought into further question by the plaintiffs’ written submissions that the distance from Ottawa, where both Mr. Grodzki and Mrs. Switzer practice, to North Bay is a six-hour drive one way. It is not. Google Maps shows the distance between the courthouses in North Bay and Ottawa to be 361 kilometres, or about a three-hour-and-50-minute drive.

[43] In Breen, the entire claim for travel expenses failed due to the lack of particularity. In this case, I accept that at least some travel was necessary, based mainly on the submissions made on behalf of the plaintiff in the Lounds action. However, $2,000.00 just for counsel seems excessive when one compares the amount claimed for travel in the Lounds action. That claim included many trips by the plaintiff to attend defence medicals. Therefore, I would allow the sum of only $1,000.00 for travel claims in connection with the MacIsaac action.

Facsimile Transmissions, Postage, Courier, Legal Researcher, USBs, Transaction Levy

[44] As with the Lounds action, the insurer takes issue with the MacIsaac plaintiffs’ claims for expenses that the insurer submits ought to be characterized as office overhead, including facsimile charges of $1,056.00, postage charges of $198.00, courier charges of $83.17, legal researcher costs of $847.50, legal researcher database usage costs of $234.00, USB sticks at $85.00, and a Law Society of Ontario transaction levy of $50.00. These and similar expenses have been disallowed by other courts, as I have explained above. However, as I have also explained, these disbursements have also been allowed.

[45] On behalf of the MacIsaac plaintiffs, counsel submits that these “are standard and necessary disbursements incurred … in a complex personal injury matter” and that they “are reasonable and proportional”. While I am a little troubled by counsel’s failure to more clearly state that these disbursements were reasonably necessary for this particular personal injury matter, I am satisfied that this is what counsel meant. On that basis, I would allow all of these disbursements.

Expert Reports

[46] The defendant takes issue with one other group of disbursements, namely expert reports. These fall into three groups.

Future Care Costs Reports

[47] The plaintiffs obtained two future care costs reports, both prepared by an occupational therapist. The first report was delivered in 2017. The plaintiffs claimed the cost of that report at $5,620.00. The plaintiffs also obtained a second future care costs report in 2024, which the defendant submits “fundamentally changed the assessment of the plaintiffs’ care costs needs”, referring to Mr. MacIsaac. The plaintiffs claimed $12,139.39 for the cost of that report.

[48] The insurer objects to reimbursing the plaintiff for the cost of the second report, for four reasons. First, it submits that the second report was not a simple supplementary report and necessitated a motion by the defendants to require Mr. MacIsaac to attend a further defence medical examination. Second, the insurer submits that the report was delivered late. Third, it submits that the plaintiffs would not have been able to call the authors of both reports because they were both occupational therapists. Finally, the insurer submits that the plaintiffs have not explained why the second report was so much more expensive than the first.

[49] I am not persuaded by any of these arguments that the cost of the second report should be disallowed.

[50] As the plaintiffs explain, the first future care cost report was prepared for a mediation. I accept that the second report was necessary due to the lapse of time since the preparation of the first report and the deterioration in Mr. MacIsaac’s health between 2017 and 2024 due to his spinal injury.

[51] Regardless of whether the second report changed the assessment of the plaintiffs’ future care cost needs or was delivered late, the defendant sought and obtained an order requiring Mr. MacIsaac to attend a further defence medical specifically to address the opinion expressed in the second report. There would have been no unfairness if that report was admitted at trial.

[52] With respect to the submission that the plaintiffs would not have been able to call more than one occupational therapist at trial, it is not clear to me upon what authority the defendant relies. Section 12 of the Evidence Act, RSO 1990, c E.23, limits only the number of experts that can be called, not the nature of their evidence. It is true that courts have developed a list of factors under s. 12 that includes the degree to which the experts’ evidence is duplicitous. However, this is but one factor to be considered: Burgess (Litigation Guardian of) v. Wu, [2005] O.J. 929 (Ont. S.C.J.); Leonard v. Klein, 2011 ONSC 2730, at paras. 9-11.

[53] In any event, I think it is fair to assume that, if the plaintiffs were restricted to calling one occupational therapist, it would have been the author of the second report.

[54] Finally, as to the costs of the second report, I agree that it has now become generally acceptable for the court to require that an expert’s fees be reasonable and proportionate to the value of the case and the issues at stake: Orkin, at § 2:162 and 2:163. However, I am unable to conclude that the cost of the second report was unreasonable. After all, there were seven years between reports. Inflation has to account for at least some of the increased cost. I also note that the insurer did not challenge the reasonableness of certain expert reports obtained by the plaintiff in the Lounds action which totalled over $20,000.00. Other reports, some of them costing over $12,000.00, also went unchallenged in that action. Thus, I cannot say that the cost of the second occupational therapy report in the MacIsaac action, standing alone, is unreasonable.

[55] For these reasons, I would allow the costs of both occupational therapist reports.

Psychological Report

[56] The insurer also objects to the costs associated with a second psychological report in the amount of $8,452.50. In addition to making the point that the report was prepared in connection with a claim of catastrophic impairment under the SABS, the insurer also complains that the cost of the report is excessive when compared to another report that was prepared later. Finally, the insurer submits that the plaintiffs should have recovered $2,000.00 towards the cost of the report from the AB insurer under the SABS.

[57] I have already addressed the law relating to the insurer’s submission that it should not be required to pay for reports prepared in the AB context. The plaintiffs have explained that the first report prepared by the same author, Dr. Ross, was prepared to address both the criteria necessary to meet the definition of “catastrophic impairment” under the SABS as well as the definition of “serious, permanent impairment” that defines the threshold under the tort provisions of the Insurance Act, RSO 1990, c I.8. The second report, however, was prepared by Dr. Ross only as an update on the tort issue.

[58] The plaintiffs have also explained that the first “Ross report” was instrumental in settling the plaintiffs’ AB claims, which factored into the settlement of their tort action.

[59] In these circumstances, I am not concerned about the costs of the reports, nor about the context in which the more expensive report was prepared. However, the plaintiffs have not responded to the insurer’s submission that the plaintiffs could have obtained $2,000.00 from the AB insurer towards the cost of the first report. For that reason, I would deduct this amount from the amount claimed by the plaintiffs for that report.

Fees

[60] Finally, I come to the issue of the fees sought by way of costs in the MacIsaac action.

[61] The plaintiffs seek reimbursement for legal fees in the amount of $100,000.00, exclusive of HST. The defendant makes five objections to the amount sought, which I will deal with in this order:

1. that the docket entries contain work done in connection with the AB claim;
2. that time was docketed in preparation for trial in September 2024, when it was unnecessary;
3. that there are duplicitous docket entries;
4. that the time docketed is excessive; and
5. that the dockets contain entries for time spent in connection with a successful motion by the plaintiffs to strike the jury notice and a successful motion by the defendant to compel Mr. MacIsaac to attend the defence medical referred to above, which the parties had agreed to set off against one another.

Fees Docketed on the AB Claim

[62] I have not been provided with the amount of the total fees docketed in relation to the AB claim. However, I have also not been told that those fees were excessive.

[63] In the absence of an allegation that the fees claimed were excessive, for the reasons expressed earlier relating to the payment of fees in the tort action for the plaintiffs’ AB claims, I would not disallow a claim for such fees in this action.

Duplicitous Time Entries

[64] The time docketed by plaintiffs’ counsel includes more than $11,000.00 worth of time for the attendance of both Mr. Grodzki and Mr. Switzer at pre-trial conferences held in North Bay on January 17, 2023, and held virtually in North Bay on September 12, 2024, during which this action was settled. The insurer submits that it was not necessary for both counsel to attend either pre-trial conference. Respectfully, I am unable to agree.

[65] Mr. Switzer was retained to assist Mr. Grodszki to take this matter to trial. He appeared at all the trial management conferences that I convened after January 2023. In these circumstances, I am unable to agree that his attendance at the January 2023 or September 2024 pre-trial conferences was unnecessary. He was involved both in preparing this matter for trial and in resolving it.

[66] However, I do agree with the insurer that, in combination with the fees charged for Mr. Grodzki’s time spent preparing for and attending at the pre-trial conferences, the overall amount sought by the plaintiffs is high. This brings me to the insurer’s next objection.

Excessive Time Spent

[67] Before moving to some of the examples provided by the defendant of excessive time spent by plaintiffs’ counsel, I would point out that the fees charged by both Mr. Grodzki and Mr. Switzer for travel were charged at their full hourly rates. This is unusual. In my experience, travel time is usually billed by counsel at one half their hourly rate: Orkin, at §2:90.

[68] The insurer points to other excessive charges. For example, plaintiffs’ counsel charged more than most counsel usually charge for the preparation of correspondence. Most counsel charge .1 hours for the preparation of routine correspondence, such as correspondence requesting police reports. However, plaintiffs’ counsel in this case charged .25 hours for the preparation of such correspondence. I find this to be excessive. So too, is the 7.8 hours spent in 2015 to draft a Statement of Claim and the 8 hours spent one day in 2016 to prepare for the examination for discovery.

[69] These are just some examples of what I accept are excessive amounts of time spent on certain aspects of this case.

Time Spent Relating to the Motion to Strike in the Motion for Leave

[70] In addition to the examples given above, I also consider the amount of time docketed in preparation for the motion to strike and a motion relating to the defence medical to be excessive. However, the more important point relating to those time entries is the insurer’s submission that the parties had agreed to set the costs of these motions off against one another, given that the plaintiffs were successful at striking the jury and the insurer was successful at compelling Mr. MacIsaac to attend a further defence medical.

[71] In response to the insurer’s assertion about set off, the plaintiffs say only that the motion preparation was necessary “due to the defendants’ conduct”. That is no answer to the submission that the costs were to be set off.

[72] For that reason, I find that the fees relating to those motions should not be allowed. However, I have not been provided with the total amount of time spent or fees charged in connection with the motions. Nor, as the insurer concedes, should I conduct a line-by-line analysis of the dockets to calculate it myself. Instead, I will consider the time spent on the motions when I address the question of the appropriate fee in light of the caselaw, below.

Time Spent Preparing for Trial After September 7, 2024

[73] On September 7, 2024, both Mr. Grodszki and Mr. Spitzer each docketed eight hours of trial preparation time. On September 8, 2024, Mr. Grodszki docketed a further eight hours for the same reason. The defendant submits that this time was unnecessary. The parties in the MacIsaac action had agreed to Mr. MacIsaac’s damage assessment and the parties in both actions had agreed that the Lounds matter would proceed first during the six-week sitting in Ottawa beginning on October 7, 2024.

[74] I have difficulty accepting the submission that the parties had agreed on the damages in either action prior to the September 12, 2024, settlement conference. On July 3, 2024, plaintiff’s counsel in the Lounds action wrote to defence counsel in both matters, advising that the plaintiffs in both actions had agreed to apportion damages within the defendants’ one-million-dollar policy limits ($750,000.00 plus costs for Mrs. Lounds, and $250,000.00 plus costs for the MacIsaac plaintiffs). However, it does not appear that the defendant accepted this proposal. Clearly, the action did not settle until the pre-trial conference on September 12, 2024, and did not settle for these amounts.

[75] As the plaintiffs submit, both actions remained scheduled for trial commencing on October 7, 2024. On September 3, 2024, the court in Ottawa advised the parties that the trial was proceeding as scheduled and that a trial management conference was scheduled for September 18, 2024.

[76] In these circumstances, I cannot agree that plaintiffs’ counsel ought not to have been preparing for trial.

The Appropriate Allowable Fee

[77] The question then becomes, in light of what I believe are excessive fees claimed for costs in the MacIsaac action, what fees should be allowed?

[78] The customary basis upon which the fees component of party-and-party costs on settlements in this range are calculated is 15 percent of the first $100,000.00 damages and 10 percent of the remainder. In this case, that would total approximately $29,500.00, exclusive of HST. The plaintiffs submit that such a fee would not be reasonable in a case that lasted so long and settled only on the eve of trial. I agree.

[79] Just as my colleague, Hackland J., did in Ozimkowski v. Raymond, 2022 ONSC 51, at para. 21, I find that the length and complexity of the case justifies an award of costs outside of the usual amount. I do not agree with the submission made on behalf of the insurer that this case was substantially less complex than that of Mrs. Lounds. In many cases, catastrophic injuries require less work on counsel's part because they are more obvious than other injuries, for example soft tissue injuries, and take less time to fully materialize.

[80] It is also not correct to think that the work involved in a more minor personal injury case is markedly different than in a major one. Clients must still be met, pleadings must still be drafted and delivered, oral and documentary discovery must still be made and pursued, and experts must usually be retained in both major and minor cases. The amount of work counsel must undertake does not decrease in direct proportion to the amount of the damages at stake or for which the case settles.

[81] However, as Hackland J. also pointed out in Ozimkowski, proportionality in awarding costs is still an important consideration, as is reasonableness. In my respectful opinion, the amount sought by the plaintiffs of fees of $100,000.00 plus HST is neither proportionate nor reasonable given the value of the settlement.

[82] When fixing costs as between the parties, the overall objective is to fix an amount that is fair and reasonable: Boucher, at para. 26; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), at para. 52. I have considered the relevant factors listed in r. 57.01(1), including the principle of indemnity, the amount the insurer could reasonably have expected to pay, the amount claimed and recovered in the proceeding, the complexity of the proceeding, the importance of the issues to the parties, the offer by the plaintiffs to settle for the defendants’ policy limits, and the length of time over which the proceedings have been conducted. Taking all of these factors into account, it is my opinion that a fair and reasonable amount for fees in the MacIsaac action is $60,000.00, exclusive of HST.

Conclusion

[83] For the foregoing reasons, in addition to the fees and disbursements that have been agreed upon between the parties in the Lounds action, the further sum of $9,514.94 is allowed for disbursements.

[84] With respect to the MacIsaac action, fees in the amount of $60,000.00, exclusive of HST, and the disbursements claimed less the amount of $3,000, exclusive of any applicable HST, are allowed.

M.G. Ellies

Released: April 28, 2025