2013 ONSC 711, 2013 ONSC 711

CITATION : Robbs v. Lee, 2013 ONSC 711 COURT FILE NO.: 00-1344 DATE: 20130201 SUPERIOR COURT OF JUSTICE - ONTARIO RE: RICHARD ROBBS, RICHARD ROBBS AS TRUSTEE OF THE ESATE OF PAMELA ROBBS, FREDA HODKIN, JAMES HODKIN, RICHARD JAMES ROBBS, JAMIE HODKIN, DEBORAH LOAT and Litigation Guardian, Robert Mahler, Plaintiffs AND: JAMES LEE, HOTEL DIEU HOSPITAL, ANN FOURGERE, SONYA DENYS, SUSAN FINCHER, NANCY ULCH, MARLENE ORSHINSKY and KRISTINA SMITH, Defendants BEFORE: The Honourable Mr. Justice Robert B. Reid COUNSEL: G. McKenna, Counsel, for the Plaintiffs T. Fisher, Counsel, for the Defendant James Lee T.

Maurer, Counsel, for the Defendants Hotel Dieu Hospital, Ann Fourgere, Sonya Denys, Susan Fincher, Nancy Ulch, Marlene Orshinsky and Kristina Smith HEARD: September 17, 2012 COSTS ENDORSEMENT [ 1 ] The defendants brought motions seeking a dismissal of the action for delay. By my endorsement issued on December 3, 2012, the motions were dismissed and the parties provided written submissions on costs.

Background Facts: [ 2 ] The lawsuit arises from the death of Pamela Robbs on June 13, 1999 and alleges negligence by the defendants in their failure to properly monitor her postoperative condition following a ureteroscopy procedure. [ 3 ] The plaintiffs are the surviving family members of Ms. Robbs. [ 4 ] The defendant, Dr. James Lee, was the doctor primarily responsible for Ms. Robbs’ care prior to her death. The defendant Hospital employed the other defendants who were attending nurses.

Issues on the Motions: [ 5 ] In order to dismiss this action for delay, the defendants needed to show delay which is inordinate and inexcusable as well as prejudice to the defendants such that there is a substantial risk that a fair trial might not be possible because of the delay. [ 6 ] I found that the defendants had demonstrated the first two factors, but not the third, and as a result the motions were unsuccessful. [ 7 ] In considering the matter, I noted that this medical malpractice action had been outstanding for over 12 years and that the plaintiffs were still not ready for trial.

The action had been struck from the trial list some four years prior to the motions being heard. [ 8 ] It was clear to me that the plaintiffs lacked diligence in pursuing the matter. I found that at best, the plaintiffs made sporadic efforts to advance the action, most of which were the result of pressure by the defendants. Issues for Costs: [ 9 ] The usual issues arise as to costs following the motions: which party or parties (if any) should receive a costs award? What is the proper scale and quantum of costs? [ 10 ] The plaintiffs seek costs based on success in the motions.

On a partial indemnity basis, inclusive of HST and disbursements, the sum of $14,600.84 is claimed. However, in the circumstances of the case, the plaintiffs moderate their request to the all-inclusive sum of $5,000.00. [ 11 ] The plaintiffs note that in addition to their success in defending the motions, I should also consider that there was a proposal by the plaintiffs to resolve the motions on consent by way of a court ordered timetable pursuant to the alternative relief claimed by the defendants in the notices of motion. I note that the proposal was not by way of a formal offer nor was it definite.

Rather, counsel for the plaintiffs wrote to counsel for the defendants and indicated that: “we discussed the prospect of agreeing to resolve your client's Motions by agreeing to a timetable as proposed in the alternative relief sought in your respective Motion Records” [emphasis added].

[ 12 ] For their part, the defendants seek an order that no costs be payable. They assert that, given the delay which was endemic in the action, they had no alternative but to bring the motions to dismiss for delay so that the matter would either be concluded or moved forward. They submit that in exercising my discretion I should consider the provisions of rule 57.01(1) (

e) of the Rules of Civil Procedure [1] which refers to the conduct of a party that tended to lengthen unnecessarily the duration of the proceeding. They also refer to rule 57.01(4)(a) [2] to the effect that the rules do not affect the authority of the court under

section 131 of the Courts of Justice Act [3] to refuse costs in respect of a particular issue or part of a proceeding. [ 13 ] The defendants submit that it was not reasonable for them to agree to a timetable for the conduct of the action. The first motion record was served on the plaintiffs on December 20, 2011. At the request of the plaintiffs, the matters were adjourned on consent from February 14, 2012 to April 30, 2012 on the condition that responding materials would be filed by the plaintiffs on or before March 30, 2012. Responding materials were not received in time.

A further request for adjournment was made by the plaintiffs on April 23, 2012 to which the defendants agreed but on condition that there would be a court endorsed timetable leading to the hearing of the motion. That order was made on May 22, 2012. [ 14 ] As I expressed in my decision on the motions, the plaintiffs have consistently failed to diligently prosecute the action. Even after service of the motion materials, the plaintiffs did not take steps to make the claim trial-ready.

I am not impressed by the plaintiffs’ tentative proposal of a timetable which was made some six months after the first motion record was served. Actions speak louder than words. If the plaintiffs had been serious about moving the matter forward to a conclusion, it would have been more appropriate for them to have secured the necessary expert reports. Doing so might well have brought a different reaction from the defendants in response to the proposed resolution of the motions. [ 15 ] In exercising my discretion as to costs pursuant to

section 131 of the Courts of Justice Act [4] , I am of course guided by the provisions of rule 57 of the Rules of Civil Procedure . [5] Despite the plaintiffs’ success in avoiding the dismissal of the action for delay, I consider that it was reasonable in all the circumstances for the defendants to have sought the relief and I consider that the plaintiffs’ response was consistent with their pattern of conduct which has unnecessarily lengthened the duration of the proceedings to date. [ 16 ] There will be no order as to costs. Reid J. Date: February 1, 2013