Costs: “Substantial Indemnity” Doesn’t Mean “Full Indemnity”

Posted on October 27, 2006 by Stephen Cavanagh

Ontario Superior Court Justice Joan Lax has released an interesting costs decision in Manning v. Epp et al. In this lawsuit, the plaintiff was well-known Ontario lawyer, Morris Manning. He sued the mayor of the City of Waterloo, as well as a number of municipal officials. In an earlier decision, Justice Lax had granted a motion to strike the 111-page statement of claim as an abuse of process. In yesterday’s ruling, she fixed the costs of the defendants.

Because the statement of claim had contained unproven allegations of illegal conduct on the part of the defendants, allegations which were strongly condemned by Justice Lax, the defendants sought costs on a “full indemnity” scale.

Justice Lax made it clear that in her view, there are still only two scales of costs: “partial indemnity” and “substantial indemnity”. While the court has discretion to award costs that fully indemnify a party for legal fees, the escalation of lawyers’ hourly rates has, she obse:ved, widened the gap between what is properly recoverable as “substantial indemnity” costs and what would be required to fully indemnify a litigant:

The moving parties appear to take the position that under the “new Rules” (referring, I believe, to the amendments that came into effect on July 1, 2005), substantial indemnity and full indemnity costs awards are one and the same. While the 2005 amendments to Rule 57.01(4) make clear that the court may award costs in an amount that represents full indemnity (rule 57.01(4)(d)), there continues to be a distinction between full and substantial indemnity costs (see, rule 57.01(4)(c)). The choice of the term “substantial indemnity” reinforces this distinction.

As between litigants, there are two scales of costs – partial indemnity and substantial indemnity. These terms were introduced in 2001 and correspond to the former scales of  “party-and-party” and “solicitor and client” costs. Before their introduction, a costs award that provided complete indemnity was referred to as “costs as between the client and its own solicitor”. An award on this scale was rare, except in estate matters and in some commercial matters, such as mortgage actions.

Historically, solicitor and client costs approached full indemnity and depending on a solicitor’s actual billing rate, they may still coincide. As billing rates to clients have increased and risen to hourly rates in excess of $600.00, the gap between an award of costs that provides full indemnity and one that provides substantial indemnity has widened. In this case, the difference in fees is roughly $40,000. I was not provided with any authority for awarding the costs of this motion in an amount that would fully indemnify the successful parties and in my view, there is no basis for such an award. I believe that the choice here is between partial indemnity costs and substantial indemnity costs.

Because the plaintiff Manning had made, in his statement of claim, allegations against the defendants which were “designed to harm and embarrass”, Her Honour was satisfied that the defendants were entitled to costs on a substantial indemnity basis. However, she did not feel that those costs should fully indemnify the defendants, given the time that had been spent (which she felt was, in some respects, excessive) and the hourly rates charged.

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Master MacLeod Provides Guidance Regarding Proper Conduct at Discoveries

Posted on October 27, 2006 by Stephen Cavanagh

In a decision that will be very useful for the practising bar, Master Calum MacLeod has established a list of guidelines on proper practice at examinations for discovery.

In Iroquois Falls Power Corp. v. Jacobs Canada Inc., a commercial case, a dispute arose during the ninth day of discoveries. The plaintiff was being examined. During a lunch break, counsel for the plaintiff met with his witness to discuss an answer that had been given just before the break, in which the witness appeared to his lawyer to have misunderstood the question. That suspicion was borne out during the lunchtime conversation. The witness and his counsel then discussed what the answer should have been. Anticipating some follow-up questions, they flagged some documents to which they expected to refer.

When the examination resumed, counsel for the plaintiff advised the examining counsel of the discussion that had taken place. The examining counsel considered that the consultation between witness and counsel had been improper and brought this motion for directions and sanctions.

Master MacLeod ruled that while the discussion between the plaintiff’s representative and his counsel ought not to have been held without advance notice to examining counsel, no harm had been intended and no directions or sanctions would issue. However, in the course of his reasons, Master MacLeod discussed the Law Society of Upper Canada’s Rules of Professional Conduct and the Canadian Bar Association’s Code of Professional Conduct, and their relationship to practice before the Courts. He reviewed a number of authorities as well, with a view to coming up with some general guidelines for the assistance of counsel.

The decision is well worth reading, particularly for less experienced counsel who might be uncertain about where the bounds of proper discovery conduct actually lie. The 11 points that the Master distilled from the authorities are these:

1.                  Counsel representing a party who is being examined is entitled to interrupt the examining party for the purpose of objecting to an improper question, placing the objection on the record and either directing the witness to answer under protest or not to answer.

2.                  Counsel may also interrupt the examiner if necessary to ensure the witness and counsel both understand the question.

3.                  As a practical matter counsel may sometimes wish to answer a question or to correct an answer but if the examining counsel objects then neither of these are permitted.

4.                  Counsel may choose to re-examine his own client in order to correct an answer or to clarify or explain an apparent admission or inconsistency. Alternatively he or she may provide the correction or clarification subsequently in writing. In either case, the examining party is entitled to the evidence of the witness and not that of counsel.  It is the duty of the witness and not counsel to correct the evidence.

5.                  Counsel must respect the fact that discovery evidence will include an element of cross examination and should not discuss evidence with the witness during a break.

6.                  In a lengthy discovery or series of discoveries, counsel may consider it necessary to discuss evidence with the witness.  Generally the intention to do so should be disclosed to opposing counsel and if there is an objection it may be necessary to seek leave of the court.

7.                  If there is a break between rounds of discovery, counsel is free to meet with the client to prepare for the upcoming discovery.  It may also be necessary to discuss evidence already given to obtain instructions in regard to discovery motions, to advise the client of the duty to correct answers and to answer undertakings.  It is prudent to disclose this intention to opposing counsel.

8.                  Counsel ought not unnecessarily to oppose reasonable discussions between counsel and client provided they are disclosed. It is legitimate on the resumption of discovery to ask the witness under oath if he or she was coached in any way as to what answers to give.

9.                  Accusations of professional misconduct ought to be reserved for the clearest of cases based on cogent and persuasive evidence and when such a finding is a necessary and inescapable conclusion.

10.              Motions for direction should only be necessary when counsel for the party being examined has refused all requests to conduct him or herself in accordance with the rules and interference has become so extreme as to render the discovery futile.

11.              Generally speaking the Court will eschew findings that a counsel has breached the Rules of Professional Conduct as such but will take notice of those Rules in determining what standard is expected of counsel before the courts.  The court may have to make findings of fact that could constitute evidence of professional misconduct.  In such cases counsel should be afforded reasonable procedural protections.

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Judge Finds that Threshold Motion Must Succeed Where Jury Assesses Damages at Zero

Posted on October 26, 2006 by Stephen Cavanagh

Bisier v. Thorimbert was an action for personal injuries arising out of a motor vehicle accident. At the trial, Mr. Justice J.R. Henderson of the Ontario Superior Court granted the defendant’s motion for dismissal of the plaintiffs’ claim, on the basis that the injuries did not meet the “threshold” under s. 267.5(5) of the Insurance Act. The injuries were soft tissue–WAD II, according to one of the plaintiffs’ experts–but the injured plaintiff had been able to return to work. She claimed that she had had a significant change to her life, that she experienced pain at work and was limited in her home and recreational activities.

There was also evidence that the plaintiff had suffered from pre-existing conditions.

The threshold motion was brought while the jury was deliberating. The jury returned with its decision before Justice Henderson had ruled on the motion and assessed both general damages and damages under the FLA at zero.

Justice Henderson held that there was ample evidence to show that the injured plaintiff’s condition was permanent, so the jury must have found that the MVA injuries had not materially contributed to the plaintiff’s current condition.

What is interesting about the case is that Justice Henderson found that “the decision on the threshold issue must be consistent with the jury verdict”. Accordingly, based on his inference, that the jury must have concluded that the MVA had not materially contributed to the plaintiff’s present condition, he ruled that she had not suffered a permanent impairment of a physical, mental or psychological function.

In the alternative, he said it was abundantly clear that if the jury was satisfied that there was a causal connection between the accident and the plaintiff’s condition, it must have determined that the impairment was not serious. Hence, the threshold was not met and the action must fail.

Insurers tend to serve jury notices in these sorts of cases, involving soft tissue injuries. Justice Henderson’s decision will probably encourage them to continue to do so, since the ruling results in the jury being indirectly empowered to decide the threshold issue (even though the Insurance Act expressly confines that power to judges).

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Costs Math

Posted on October 26, 2006 by Stephen Cavanagh

In Riddell v. Conservative Party of Canada, Alan Riddell, former Conservative candidate for the riding of Ottawa South, is embroiled in a dispute with his party. There has been a series of interlocutory motions. A recent one was decided by Mr. Justice Denis Power of the Ontario Superior Court. In that ruling, the applicant, Mr. Riddell, was successful. Justice Power made some observations regarding the quantum of costs that are a useful reminder to the practising bar.

Mr. Riddell’s counsel’s actual hourly rate was $390. He argued for a substantial indemnity rate of $300 or, failing that, a partial indemnity rate of $280.

However, Justice Power noted that, while he had “no difficulty whatsoever” with the time expended or the actual hourly rate charged, “[t]he substantial indemnity rate should be one and one-half times the partial indemnity rate. Such a calculation would give rise to an absurdity [in this case] since the result would be $420 per hour which is, of course, $30 more than the actual billing rate of senior counsel. In my opinion, given an actual rate of $390 per hour, an appropriate partial indemnity rate would be approximately $230 per hour and thus, the substantial indemnity rate would be $345 per hour.”

Justice Power had in mind the definition of “substantial indemnity costs” in Rule 1.03(1) of the Rules of Civil Procedure: “‘substantial indemnity costs’ mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A”. As we have mentioned in previous posts, “substantial indemnity costs” is, as the definition indicates, a function of “partial indemnity costs”, not the other way around. “Partial indemnity costs” are supposed to be calculated in accordance with Part I of Tariff A, which is a regulation under the Courts of Justice Act. However, Part I says only that, “[t]he fee for any step in a proceeding authorized by the Rules of Civil Procedure and the counsel fee for motions, applications, trials, references and appeals shall be determined in accordance with section 131 of the Courts of Justice Act and the factors set out in subrule 57.01(1)”.

The latter subrule lists a number of factors to be taken into account by the court (e.g., experience of the lawyer, hours spent, the amount that an unsuccessful party could reasonably expect to pay, the complexity of the proceedings, etc.) There is no direct correlation in subrule 57.01(1), between the actual hourly rate charged to the client and the amount recoverable as partial indemnity costs, although “the rates charged and the hours spent” are among the factors that a court can consider. Indeed, it was held in Mantella v. Mantella, that counsel who has negotiated a reduced hourly rate with a client might be entitled to recover the entire hourly rate as partial indemnity costs:

The actual fees charged by counsel are not the starting point of a costs analysis. Costs are an indemnity, and thus may not exceed the client’s total liability to her solicitor; the client may not gain a windfall as a result of a costs award. However, in fixing partial indemnity costs, the court does not look at the actual fee arrangement between solicitor and client and discount that arrangement to ensure that recovery is “partial”. Rather, the court considers the pertinent factors laid down in the rules in fixing the amount of recovery appropriate on a partial indemnity basis. So long as the amount is equal to or less than the actual fees and disbursements charged, then the amount arrived at by reference to the factors listed in the rules will be the amount of the award – whether that represents 50% of actual fees, 75% of actual fees, or even 100% of actual fees. If counsel is prepared to work at rates approximating partial recovery costs, that is counsel’s choice. There is no reason why the client’s fee recovery ought to be reduced because she has negotiated a favourable rate with counsel, so long as the total of the indemnity does not exceed the fees actually charged.

In the Riddell case, Justice Power allowed a partial indemnity rate of $230 per hour. This rate was about 60% of the actual hourly rate of $390 (and, as His Honour said in the passage quoted above, would produce a substantial indemnity rate of $345). However, there is no indication in his reasons, that Justice Power arrived at the partial indemnity rate by reference to the actual rate. In fact, as the Mantella case indicates, that would not have been the correct approach. Instead, the actual hourly rate is properly viewed as a limiting factor on what can be awarded by way of costs (the successful party not being entitled to recover more than he or she is actually being charged by his or her lawyer).

Thus, we feel that it would not be correct to interpret Justice Power’s decision to mean that partial indemnity costs should be approximately 60% of counsel’s actual hourly rate. Rather, the actual rate doesn’t enter the analysis at all, except to establish a ceiling for the costs award.

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Defence Counsel’s Opening Address Leads to Discharge of Jury

Posted on October 26, 2006 by Stephen Cavanagh

In Morrison et al. v. Greig et al., Mr. Justice Bruce Glass of the Ontario Superior Court discharged the jury following the opening address of counsel for the defendant. In this trial of two personal injury actions, arising out a motor vehicle accident, Glass J. found that the address by counsel for the defendant contained errors of law, personal opinions of counsel and argument, all of which was held to be improper. The trial continued before Justice Glass alone.

A transcript of the offending address is attached to the reasons of Glass J.

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C.A. Dismisses Appeal in Tiger Mauling Case

Posted on October 23, 2006 by Stephen Cavanagh

The Court of Appeal has dismissed the defendant’s appeal in Cowles v. Balac, the case in which Justice Jean MacFarland of the Ontario Superior Court found The African Lion Safari & Game Farm Ltd. liable to a couple mauled by Bengal tigers while driving through the park. The two plaintiffs were awarded damages totalling $2.5 million.
The appeal was on the issue of liability only. The defendant argued that the trial judge had erred in striking its jury notice, in refusing to admit the evidence of its private investigator and in failing to hold that the defence of contributory negligence applies in cases involving strict liability.
The Court of Appeal made some interesting findings on all three issues. All three justices (Associate Chief Justice Dennis O’Connor, Justices Stephen Borins and Paul Rouleau) agreed that the trial judge had made some mistakes. However, Justices O’Connor and Rouleau felt that the errors did not warrant a new trial. Justice Borins thought that a new trial was called for.
The tigers had gained access to the plaintiffs’ car through the driver’s and passenger’s windows. A key issue at trial had been how the windows had come to be lowered. The trial judge accepted the plaintiffs’ evidence, that they had not opened the windows themselves. Justice MacFarland concluded that male plaintiff had accidentally pressed the buttons that opened the windows when the tigers leapt at the car. She rejected evidence tendered by the defence, that the female passenger had lowered her window intentionally, in order to take a photograph. Presumably, counsel for the defence thought that a jury would have come to a different conclusion.
Jury Notice
The main ground on which trial judge struck the jury notice was the complexity of the case. Whether or not the doctrine of strict liability applied was, she felt, an important legal issue that would be a difficult one for a jury. She also mentioned the actuarial and medical evidence and the fact that the trial was scheduled for six weeks as factors weighing in favour of striking the jury notice.

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Car Operated without Consent but Leasing Company Still Liable

Posted on October 13, 2006 by Stephen Cavanagh

NOTE: An appeal from the decision discussed in this posting was dismissed by the Court of Appeal on August 3, 2007. The reasons are available here. Although the Court of Appeal upheld the decision of the motions judge, it disagreed with his statement that “it is not possible for a person to be in operation of a vehicle without being in possession” of it. In this case, even though the lessee was not permitted to operate the vehicle, the Court held that he was “in possession” of it “because he was permitted to control its use”.

The Court drew a sharp distinction between “use or operation” and “possession”. It is the latter that gives rise to vicarious liability under s. 192 of the Highway Traffic Act. Here, while GMAC Leaseco had not consented to the operation of the vehicle by the lessee, by entering into a lease with him, it had consented to him having possession of the vehicle.

The Court of Appeal’s reasons reconcile what we said, in our original post, was puzzling about the motions judge’s decision. He had found that GMAC had not consented to the lessee having possession of the vehicle, yet he nevertheless imposed liability on it. The C.A. held that the lessee did have possession with GMAC’s consent, which is what must be established to trigger vicarious liability under s. 192 of the Highway Traffic Act.

The original post follows:

This is an interesting, but puzzling, decision. In Finlayson et al. v. GMAC Leaseco Limited, Mr. Justice J.W. Quinn of the Ontario Superior Court was dealing with a personal injuries claim by passengers in a car leased by GMAC Leaseco. The lease contained a term, prohibiting the car from being driven by excluded drivers. The lessees were John Simon and Teresa Jeffries.

Simon had been named as an excluded driver in a policy issued by Economical Mutual. This was apparently because of an impaired driving conviction and suspension of his driver’s licence.

However, Simon was driving the leased car when it was involved in the accident giving rise to this claim. GMAC took the position that it was not liable for Simon’s negligence under s. 192(1) of the Highway Traffic Act, because that section imposes liability on the owner of a motor vehicle “unless the motor vehicle…was without the owner’s consent in the possession of some person other than the owner”. GMAC argued that in this case, the car was in Simon’s possession without its consent, triggering the exception in the section.

So far, so good. Justice Quinn concluded that “possession of a vehicle and operation of it are not necessarily synonymous: one may possess a vehicle without being in operation of that vehicle, but it is not possible to be in operation of a vehicle without being in possession”.

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S.C.C. Rules that Ontario Courts Can’t Award Costs Premiums Based on Risk

Posted on October 13, 2006 by Stephen Cavanagh

Addendum to this post 

Debra Rolph of LawPRO has added a comment to this post, asking the following question:   

The judgment ends with the following paragraph:”43 These reasons apply to the costs scheme in place in Ontario at the time costs were fixed in this case. Since that time the costs scheme has been modified in a number of ways. Whether or not the reasoning in this judgment applies to the costs scheme currently in place will be an issue for the courts as the occasion arises.”Can anyone think of recent changes to the costs scheme to which this judgment would not apply? 

In last week’s decision of Brockenshire J. in  Authorson v. The Attorney General of Canada, His Honour said, “Class counsel argued that since Rule 49 now provides for costs awards of full indemnity, there is nothing preventing the court from exercising the broad discretion granted by s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 or by the law of equity.” 

(We think that the reference to Rule 49 is an error; it is Subrule 57.01(4)(d) that allows a court “to award costs in an amount that represents full indemnity”.) In the Authorson case, the plaintiffs were found to be entitled to costs on a “full indemnity” basis, but that phrase was interpreted by Brockenshire J. to mean “the total of hours times rates”, which was $2.1 million. This was a far cry from the $75 million in costs which the plaintiffs had been seeking, based on their contingency fee retainer. 

This change to Subrule 57.01(4) was enacted by O.Reg. 42/05 and came into force on July 1, 2005. The same regulation amended Subrule 57.01(1), by adding clauses (0.a) and (0.b). The amendments allowed a court to consider, in exercising its discretion to award costs,  “the principle of indemnity” along with “the amount of costs that an unsuccessful party could reasonably expect to pay”. 

Those provisions were not in force at the time that costs were being fixed by Brockenshire J. in Walker v. Ritchie (see paragraph 20 of today’s S.C.C. reasons for the text of Rule 57.01 as it then read). Justice Rothstein said, in paragraph 21 of the reasons in Ritchie, that “the scheme in place at the time costs were fixed in this case was not one of full indemnity.” 

As a result of last year’s amendments, awarding costs on a “full indemnity” basis is now an option open to the court (although this would still be an award of costs on a “substantial indemnity” scale). 

So, to answer Ms. Rolph’s question with a question, can a court still award a costs premium, even after today’s decision, on the basis that it is thereby awarding costs on a “full indemnity” basis? If the phrase, “full indemnity” is interpreted to mean “hours times rates”, as it was in Authorson, then the answer would seem to be “No”.

The Original Post

In a decision released minutes ago, the Supreme Court of Canada has struck down a costs premium award in Ritchie v. Walker. The ruling is a major victory for defendants in Ontario.

This case involved a claim for damages for catastrophic personal injuries suffered by a 17-year old girl  whose car collided with a tractor trailer. After a sixteen-day trial, Superior Court Justice John Brockenshire found liability and awarded damages of almost $5 million. In addition, he awarded costs of $440,167.90 plus a premium of $192,600.00.

The premium was based on the fact that the plaintiffs were impecunious and their counsel had carried the lawsuit for four years, without payment. Justice Brockenshire took into account the risk of non-payment in awarding the premium.

The Ontario Court of Appeal held that premiums could not be added to awards of costs on a partial indemnity basis but were, in principle, available where costs are awarded on a substantial indemnity basis (as was the case in relation to some of the defendants here, who had not accepted an offer to settle made by the plaintiffs).

The Supreme Court of Canada granted leave to appeal on the issue of the costs premium. Today, the Court held that risk of non-payment to the plaintiffs’ lawyer was not a relevant factor under the costs scheme in Rule 57.01(1) of the Rules of Civil Procedure and that therefore, the costs premium given by Brockenshire J. could not stand.

The Court rejected the argument that the scale of costs (partial indemnity or substantial indemnity) made a difference to the availability of a premium. In either case, costs are to be fixed or assessed according to the criteria in Rule 57.01(1) and those criteria do not include the plaintiff’s impecuniosity.

Significantly, the Court emphasized the importance of predictability and consistency in costs awards in similar cases. As the headnote to the decision put it: “Unsuccessful defendants should expect to pay similar amounts by way of costs across similar pieces of litigation involving similar conduct and counsel, regardless of what arrangements the particular plaintiff may have concluded with counsel, since a defendant has no knowledge of these private arrangements and thus has no means of measuring the risk of engaging in litigation.”

The Court considered that access to justice was adequately promoted by the availability of contintency fee arrangements between impecunious clients and their lawyers.

In an interesting observation, Justice Rothstein, who wrote the decision, said that the more risk a case carries with it, the more defensible it is to the defendant. Risk premiums would therefore encourage plaintiffs to pursue the least meritorious claims, an objective which should not be promoted.

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C.A. Clarifies Causation Rules in Negligence Cases

Posted on October 12, 2006 by Stephen Cavanagh

In a 2-1 decision, the Court of Appeal allowed an appeal in a medical malpractice case, finding in favour of the defendants. The decision hinged on what evidence a plaintiff must lead in order to show that the defendant’s negligence caused (or “materially contributed to”) her injury. The Court’s reasons illustrate how the issue of causation is to be addressed in cases in which a plaintiff cannot show that “but for” the defendant’s negligence, the injury would not have occurred.

The case was Aristorenas v. Comcare Health Services and Dr. Jeffrey Gilmour. The plaintiff developed necrotizing fasciitis (“flesh-eating disease”) after delivering a baby by Caesarean section. She had been treated, over an ensuing period of two weeks, by the defendants.

At trial, Justice Sidney Lederman had found that both defendants had been negligent and he assessed damages of $50,000. The defendants did not appeal either the findings of negligence or the assessment of damages. Their appeal was limited to the issue of causation. The defendants argued that the trial judge had erred in concluding that the defendants’ negligence had caused the necrotizing fasciitis. Two of the three members of the panel that heard the appeal agreed.

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C.A. Reverses Colleague, Holds that Counsel’s Memorandum of Discussion with Expert Not Producible

Posted on September 20, 2006 by Stephen Cavanagh

A three-member panel of the Court of Appeal today reversed a July decision of a single judge of that court. The earlier decision of Gillese J.A. was the subject of a previous posting in our blawg (“C.A. Takes Expansive View of Expert’s Producible ‘Findings, Opinions and Conclusions’“). Justice Gillese had ordered a defendant to produce, following the trial, a memorandum prepared by its former counsel. The memorandum summarized a lengthy telephone conversation between the lawyer and an expert witness. We commented, that the decision of Gillese J.A. had blurred the distinction between a solicitor’s “work product”, for which privilege can properly be claimed, and an expert witness’s “findings, opinions and conclusions”, which must be provided to the opposing party prior to trial, if the expert is going to testify (provided that the information is requested as part of an examination for discovery).

Today, Justices Stephen Goudge, Robert Blair and Russell Juriansz reversed their colleague’s ruling and held that the memorandum of the defendant’s counsel need not be produced. In Conceicao Farms Inc. et al. v. Zeneca Corp., the court drew a distinction between the information that a party is entitled to get on an examination for discovery, and the production of documents. The panel agreed that the plaintiff would have been entitled to question the defendants on discovery about the “foundational information” underlying their expert’s report. However, the judges also made it clear that they were not deciding “the precise extent of what is discoverable” as part of Rule 31.06(3)’s “findings, opinions and conclusions” of an expert.

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