Ontario Superior Court of Justice

Court File No.: CV-15-4263
Date: 2025/05/16

Parties

Between:
Tyler Leduc, an infant under the age of eighteen years by his Litigation Guardian, Angele Vanier, Angele Vanier, and Angele Vanier, Litigation Administrator of the Estate of Jean Louis Leduc (Plaintiffs)
and
Meghan O’Brien Estate Trustee during Litigation for the Estate of the Late Marc Dufour, France Duclos, Jean McKay, Lily Bugg, Tina Hood, Glenda Petrenko, Joanne Despatie, Tina Hart, Krista Zielger, Erica Salo, Lyne Baird, Sally Edward, and Health Sciences North (formerly Sudbury Regional Hospital) (Defendants)

J. Simmons, K.C., for the Plaintiffs
G. Adair, K.C., for Almeda Wallbridge, Counsel for the Plaintiffs

Heard: In writing

Reasons for Decision on Costs
M.G. Ellies

Overview

[1] For reasons released on December 10, 2024, I held that a contingency fee agreement (“a CFA”) entered into in May 2018, was neither fair nor reasonable and reduced the $4,100,000.00 fee sought thereunder by Wallbridge Wallbridge (the “solicitors”) to $3,250,000.00, exclusive of HST and disbursements: Leduc v. Dufour, 2024 ONSC 6882 (the “fees motion”).

[2] The parties were unable to agree on the issue of costs. Therefore, they made written submissions, which I have now reviewed.

[3] The plaintiffs seek two awards of costs. In one, they seek an award in connection with an application brought under the Children’s Law Reform Act (the “CLRA”), R.S.O. 1990, c. C.12, to appoint guardians of property for the injured plaintiff, Tyler Leduc, and to finalize the judgment (the “guardianship costs”). In the other, they seek an award of costs in connection with an application by the solicitors for approval of the CFA under the Solicitors Act, R.S.O. 1990, c. S.15 (the “CFA costs”).

[4] For the following reasons, I award full indemnity guardianship costs in the amount of $33,083.63, all-inclusive. I also award CFA costs in the amount of $115,000, exclusive of HST and disbursements, representing an approximation of partial indemnity costs to the date of an offer to settle, and substantial indemnity costs thereafter.

Background Facts

[5] The background facts are set out in detail in my reasons on the fees motion and I will not repeat them here except as they relate to the issue of costs.

[6] The underlying action sought damages for injuries sustained by Tyler Leduc at birth. It was settled on behalf of the plaintiffs by Almeda Wallbridge in January 2023 for the sum of $14,000,000.00, all-inclusive, subject to court approval under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), and ss. 23 and 24 of the Solicitors Act. In an endorsement dated April 12, 2023, I approved of the overall settlement, but expressed concerns about several aspects of it, including the legality of CFA. Over the objections of Ms. Wallbridge, I ordered that the Office of the Children’s Lawyer (the “OCL”) be served with the motion materials. In a report dated July 5, 2023, the OCL shared a number of my concerns and raised others. One of the concerns expressed by the OCL was the fact that the settlement proposed that Tyler’s mother, Angele Vanier, act as Tyler’s trustee when she was not, in law, the guardian of his property.

[7] Ms. Vanier retained the services of James Simmons, K.C., at Weaver Simmons LLP. His firm then undertook all of the work necessary to obtain an order under the CLRA appointing Ms. Vanier and Ronald Trebb (a senior lawyer) as legal guardians of Tyler’s property. The final judgment, which named Ms. Vanier and Mr. Trebb as guardians, was signed on February 1, 2024.

[8] Weaver Simmons LLP also represented Ms. Vanier in connection with the fees motion. The solicitors were represented on the motion by Geoffrey Adair, K.C., of the law firm of Adair Goldblatt Bieber LLP.

Issues

[9] On behalf of Ms. Vanier, Mr. Simmons seeks full indemnity guardianship costs in the amount of $33,083.63, including HST and disbursements. The costs sought include fees for 88.55 hours of work totalling $28,962.50. Mr. Simmons also seeks full indemnity CFA costs in the amount of $154,863.74, which sum includes fees for 243.80 hours of work totalling $135,204.25. In seeking the CFA costs, Mr. Simmons relies on an offer made by the plaintiffs on August 15, 2023, to settle the fees motion for an amount which exceeded the amount ultimately allowed.

[10] On behalf of the solicitors, Mr. Adair makes three submissions regarding the guardianship costs. First, he submits that there is no basis for awarding any costs to the plaintiffs in connection with that aspect of the matter. He points out that the work would have been included in the work for which the solicitors were seeking their fees under the CFA, had Ms. Vanier not chosen to retain Mr. Simmons.

[11] In the alternative, Mr. Adair submits that there is no basis upon which to award the guardianship costs on a full indemnity basis. He submits that there was no reprehensible, scandalous, or outrageous conduct on the part of the Wallbridge firm that would justify the awarding of costs on such a scale.

[12] Finally, Mr. Adair submits that the guardianship costs are excessive, perhaps because the Weaver Simmons firm had to become familiar with the issues surrounding the approval of the settlement, with which the solicitors were already familiar. On a partial indemnity basis only, Mr. Adair submits that the guardianship costs should not exceed $15,000.00, plus HST and disbursements.

[13] Mr. Adair makes similar submissions with respect to the CFA costs. He submits that there was no conduct on the part of the solicitors that would justify imposing full indemnity costs and, in any event, the amount sought for full indemnity costs is well beyond the reasonable expectations of the solicitors as measured by their own costs.

[14] With respect to the offer made by the plaintiffs to settle the CFA fees issue, Mr. Adair submits that, at most, the plaintiffs should be entitled only to partial indemnity costs up to the date of the offer and substantial (not full) indemnity costs thereafter. This, Mr. Adair submits, would amount to CFA costs in the approximate amount of $115,000.00 even if all of the time spent by Weaver Simmons was considered reasonable, which Mr. Adair submits is not the case.

[15] I turn now to my analysis of the issues raised by these arguments.

Analysis

The Legal Principles

[16] Under s. 131 of the Courts of Justice Act, R.S.O. 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.

[17] Rule 57.01(1) of the Rules sets out a non-exhaustive list of factors the court may consider in exercising its discretion under s. 131. The arguments advanced on behalf of the solicitors require me to consider the following factors listed in r. 57.01(1) (using the clause numbering set out in the rule):

• (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;
• (c) the complexity of the proceeding;
• (d) the importance of the issues; and
• (i) any other matter relevant to the question of costs.

[18] With these legal principles as a backdrop, I move to the issues to be decided in this case.

The Guardianship Costs

[19] I am unable to agree with the submission made by Mr. Adair that no guardianship costs should be paid because the solicitors would have performed the services necessary to obtain the judgment as part of the fees sought under the CFA.

[20] It must be remembered that Ms. Wallbridge did not propose a guardianship application when she sought court approval of the settlement. Instead, she proposed to rely on her firm's practice of simply asking the court to appoint someone, usually a parent, as a trustee on behalf of the injured party. Moreover, Ms. Wallbridge resisted getting the OCL involved at all, notwithstanding the significant amounts of money involved in the settlement, the potential conflict relating to the apportionment of the settlement proceeds among the plaintiffs, and the concerns I expressed about such things as the cost to the structure of the survivorship provisions in Ms. Vanier’s favour and what would happen in the event of her untimely death.

[21] It must also be remembered that issues arose early in the settlement process between Ms. Vanier and Mrs. Wallbridge about the fees payable under the CFA. In those circumstances, I believe that Ms. Vanier was justified in retaining other counsel both to finalize the judgment and to represent the plaintiffs in the fees motion.

[22] I am also unable to agree that the time spent by the Weaver Simmons firm on obtaining the final judgment was excessive because of that firm's unfamiliarity with the case. As far as I can tell from the time dockets submitted in support of the costs request, Mr. Simmons requested that a more junior member of the firm familiarize himself with the file and Mr. Simmons then spent about 2.5 hours reviewing that lawyer's memorandum and other relevant documents. In my view, this was an efficient approach.

[23] What took more time, however, was the search for a co-guardian, the preparation of a management plan, answering the concerns of the OCL with respect to the management plan, preparing the court application under the CLRA, and obtaining the guardianship order. I do not find the time expended or the fees charged for this work to be excessive in any way. This is especially true when one compares the hourly rates charged by the Weaver Simmons firm to those that would have been charged by the solicitors where they were permitted to bill on an hourly basis under the CFA.

[24] Finally, Mr. Adair submits that elevated costs are only awardable either where there has been a r. 49-compliant offer to settle or where the conduct of the party against whom costs are ordered was reprehensible, scandalous, or outrageous: Davies v. Clarington (Municipality), 2009 ONCA 722, paras. 28 and 40. While I agree that there was no such conduct on the part of the solicitors in this case, I do not agree that an award of full indemnity costs always requires such conduct.

[25] Rule 57.01(4)(d) provides that nothing in r. 57 affects the authority of the court under s. 131 of the Courts of Justice Act to award “costs in an amount that represents full indemnity”. While full indemnity costs can, and usually do, represent a means by which the court sanctions bad litigation behaviour, that is not always so. In this case, the full indemnity costs sought by the plaintiffs represent the costs of legal services that the solicitors now say they would have performed, had they been required to do so.

[26] In these unique circumstances, I believe it would be unfair to saddle the plaintiffs with any portion of the reasonable costs of obtaining the guardianship order that the solicitors resisted obtaining on their behalf. To order otherwise would amount to granting a windfall to the solicitors, who admit that the cost of obtaining the court's full approval of the judgment was to be included in their fee under the CFA, but who were never required to perform the work.

The CFA Costs

[27] The CFA costs, however, are a different matter. The services rendered by the Weaver Simmons firm in connection with the fees motion would not otherwise have been undertaken by the solicitors. Therefore, the issue of costs for the fees motion is to be decided on the usual basis.

[28] I agree with Mr. Adair that the only basis upon which to consider awarding the CFA costs on an elevated scale relates to the August 15, 2023, offer to settle. On that date, the plaintiffs offered to settle the fees motion by agreeing to recommend to the court a fee of $3,400,000, plus HST and disbursements. This was $150,000 more than the amount that was eventually allowed. The plaintiffs’ offer was not accepted. Instead, the solicitors re-iterated an earlier offer to reduce the fees by the sum of $450,000, which would have brought them to roughly $3,650,000, excluding taxes and disbursements.

[29] Although the costs consequences of r. 49 are not applicable in this case under r. 49.02(2) because the offer was not a r. 49 offer, the solicitors concede that it may still be considered by the court. On behalf of the solicitors, Mr. Adair submits that, at most, partial indemnity costs should be awarded up to the date of the offer and substantial indemnity costs should be awarded thereafter. By my estimation, fees of approximately $19,000 had been incurred by the plaintiffs to the date of their offer, meaning that fees of approximately $116,000 were incurred thereafter. Assuming that substantial indemnity costs represent about 90 percent of full indemnity costs and 1.5 times partial indemnity costs under r. 1.03, this would result in a costs award of approximately $116,000 (($19,000 x .9 ÷ 1.5) + ($116,000 x .9)). [1] This is very close to the amount ($115,000) that Mr. Adair submits would be the appropriate award if the partial indemnity hourly rates charged and the hours spent on the fees motion were reasonable, taking into account the offer to settle.

[30] However, Mr. Adair submits that neither the partial indemnity hourly rates sought, nor the time spent by members of the Weaver Simmons firm are reasonable. With respect to the hourly rates, he submits that, on a partial indemnity basis, Mr. Simmons’ allowable hourly rate should be $325 and that of the other lawyers in his firm should be allowed at $175.

[31] I am not able to agree.

[32] Like Mr. Adair, Mr. Simmons has been in practice for more than 50 years. In my view, given his seniority, an appropriate partial indemnity hourly rate for Mr. Simmons would be $350. The appropriate hourly rates for the other lawyers involved would vary, depending on their seniority. The bill of costs indicates that three lawyers other than Mr. Simmons worked on the file. Their years of call range from 2009 to 2019. As I will come to shortly, however, I do not need to go so far as to set appropriate partial indemnity hourly rates for all of these lawyers to arrive at an appropriate costs award.

[33] Mr. Adair also submits that more time than necessary was spent by counsel for the plaintiffs on the fees motion. He points to the fact that while the Weaver Simmons firm spent approximately 244 hours on the motion, his firm spent approximately 80 hours. He submits that the resulting costs sought exceed what the losing party might reasonably be expected to pay. Mr. Adair submits that no more than 100 hours should be allowed as time spent by members of the Weaver Simmons firm on the motion.

[34] Again, I am unable to agree.

[35] This was a high-stakes motion. Both sides filed extensive motion records: nearly 500 pages on behalf of the solicitors and over 800 pages on behalf of the plaintiffs. Both sides retained experts, although only the plaintiffs’ experts were cross-examined. There was much work done by both sides. However, Mr. Adair had some help that Mr. Simmons did not have. The docket entries on Mr. Adair's accounts indicate that there was substantial involvement by Mrs. Wallbridge in the preparation of the solicitors’ motion record. I do not mean this in any critical way. It makes sense; Mrs. Wallbridge is an experienced lawyer. Nonetheless, her participation must be considered when comparing the time spent by counsel for each side.

[36] Finally, Mr. Adair submits that the CFA costs sought by the plaintiffs exceed what a losing party might reasonably expect to pay: see Boucher v. Public Accountants Council for the Province of Ontario, paras. 26, 37-38. Again, I have trouble agreeing. While Mr. Adair spent less time on the motion than the lawyers did at Weaver Simmons LLP, his fees were still $101,160. [2] Given the high stakes, the plaintiffs’ offer to settle, and the result of the motion, I do not think that a costs award in the $115,000 range referred to above is beyond what the solicitors might reasonably expect to pay.

[37] I do not need to do a deep dive into the dockets relating to the fees motion to arrive at an appropriate costs award. When fixing costs as between the parties, the overall objective is to fix an amount that is fair and reasonable in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher, at para. 26; Davies, at para. 52. I have considered the relevant factors listed in r. 57.01(1), including the principle of indemnity, the amount the solicitors could reasonably have expected to pay, the amount involved in the motion, the complexity of the motion, the importance of the issues to the parties, and the offer made by the plaintiffs. Taking all of these factors into account, it is my opinion that a fair and reasonable award for the CFA costs is $115,000, exclusive of HST and disbursements.

Conclusion

[38] For the foregoing reasons, the solicitors shall pay costs to the plaintiffs in the amount of $33,083.63, inclusive of HST and disbursements, in connection with the guardianship application and finalizing the judgment.

[39] The plaintiffs shall also pay costs to the plaintiffs in connection with the fees motion in the amount of $115,000, exclusive of HST and disbursements.

[40] As I was with respect to the fees motion, I am again indebted to Mr. Simmons and Mr. Adair for their very concise, helpful submissions.

M.G. Ellies

Released: May 16, 2025

Endnotes

[1] In Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, para. 53, the Court of Appeal held that, while substantial indemnity costs may sometimes represent 90 percent of full indemnity costs, this is not an accurate general principle of law. Nonetheless, I use that percentage because it appears to have been used by Mr. Adair in his submissions and continues to be used by counsel notwithstanding the decision in Akagi. Therefore, it represents an appropriate way of measuring the reasonable expectations of the solicitors regarding their liability for costs.

[2] I recognize that some of the services reflected in Mr. Adair’s accounts may relate to finalizing the judgment. However, the bulk of the entries are clearly related to the fees motion.