Wayne B. Brynaert

The court determined the appropriate scale and quantum of costs following an earlier order that the defendants pay the plaintiffs’ “costs thrown away” after a trial adjournment.

The plaintiffs sought substantial indemnity costs and claimed over $79,000 in counsel time plus law clerk fees, reduced by 30 percent for reusable trial preparation work.

The court held that substantial indemnity costs were not justified because neither a Rule 49 offer to settle nor sanctionable conduct was present.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, fairness, and reasonableness.

The court fixed partial indemnity costs for counsel at $50,000 plus HST and allowed only disbursements that would need to be incurred again, declining to award law clerk costs at this stage.

The plaintiff alleged medical negligence arising from a bilateral varicocelectomy performed to address infertility, after which he lost a testicle.

The court considered whether the physician failed to obtain informed consent, negligently performed the surgery, or breached the standard of care in post‑operative management.

The court found that the risk of losing a testicle was extremely remote and not a material risk requiring disclosure, and that a reasonable patient would have proceeded with the surgery even if informed of that possibility.

Expert evidence established that the surgical method used was an accepted practice within the profession and that the procedure was performed competently.

However, the court concluded that post‑operative care became negligent when the patient returned to hospital with significant pain and investigation was delayed.