



COURT OF APPEAL FOR ONTARIO

CITATION: Whitfield v. Whitfield, 2016 ONCA 720

DATE: 20160930

DOCKET: C58883

Weiler, van Rensburg and Roberts JJ.A.

BETWEEN

Dr. Agnes Jane Whitfield

Plaintiff/Defendant by Counterclaim
(Respondent)

and

Bryan Whitfield

Defendant/Plaintiff by Counterclaim
(Appellant)

Marie Henein, Matthew Gourlay and Christine Mainville,
    for the appellant

Dr. Agnes Whitfield, acting in person

COSTS ENDORSEMENT

[1]

On July 15, 2016, this court allowed the appeal and awarded the
    appellant his partial indemnity costs of the appeal in the amount of $50,000. The
    parties had not made any submissions to this court as to the appropriate
    disposition of the trial costs and were invited to provide written submissions.

[2]

We have received and reviewed the parties further written submissions. 
    These are our reasons disposing of the trial costs in light of the successful
    appeal.  We also correct an error with respect to the costs of the appeal.

Trial costs

[3]

The appellant claims trial costs in the amount of $202,742.49, which
    figure includes fees of $142,865.50, disbursements of $42,719.24 and applicable
    HST.

[4]

The respondent submits that the appellant should not be awarded any
    costs of the trial because he did not provide any dockets or particulars of his
    costs.

[5]

Typically, a costs award after trial is made following the submission of
    a bill of costs in Form 57A, which anticipates that copies of dockets and
    invoices for disbursements will be attached. In this case, the parties were
    directed by this court that if they could not agree on costs, they were to
    forward written submissions of no more than five pages, including a costs
    outline.

[6]

A costs outline, in the form of Form 57B, does not require copies of
    dockets and invoices, but does require the party seeking costs to set out sufficient
    detail for the various claimed fee items, the names of the persons providing
    services in connection with each item, together with their year of call, their
    hours, a partial indemnity rate and an actual rate.

[7]

The appellants counsel in this case provided three pages of costs
    submissions and a brief costs outline that stated in respect of Fees that
    trial counsel, called to the bar in 1992, had spent 732 hours on the litigation
    from May 2002 to the conclusion of trial in May 2014, indicated an actual
    hourly rate of $195 and asserted a partial indemnity rate of $300 to $350 per
    hour. The claim for fees was $142,865.50 plus HST (the actual fees billed at
    the rate of $195 per hour). Disbursements were itemized in the costs outline,
    for a total of $42,719.24 in claimed disbursements, including HST.

[8]

While it could be said that the appellant complied with the minimum
    requirements of Form 57B in the costs outline that was provided, we agree with
    the respondent that there is insufficient detail to properly assess certain
    aspects of the claim for fees incurred by trial counsel. That said, the respondent
    does not seriously contest the number of hours that trial counsel spent on the
    litigation.  Rather, she attacks certain aspects of the fees that we will
    address below.

[9]

The failure to provide detailed references to steps taken in the
    litigation will in some circumstances affect the recovery of costs. There is no
    general principle, however, that a party will be denied his or her costs for
    failure to provide dockets.  Rather, a party who does not provide enough
    information to explain the hours spent or the steps undertaken runs the risk
    that costs will not be allowed or will be reduced for lack of clarity and
    explanation.

[10]

In
    our view, in the particular circumstances of this case, dockets and further
    particulars were not required to allow for a meaningful review of most of the
    claimed costs and to justify counsels docketed time of 732 hours. We also
    accept that no fees were claimed for the second trial counsel who acted as
    second chair for much of the trial.

[11]

The
    nature and length of these proceedings warranted the 732 hours of docketed
    time. The present case stretched out ten years before trial with dozens of pre-trial
    steps and proceedings. The trial lasted 24 days: many witnesses were called,
    including three expert witnesses; cross-examinations were lengthy; the issues,
    as noted by the trial judge, were complicated, involving the difficult area of
    recovered memory, and the concomitant aspects of credibility and reliability of
    witnesses with which the trial judge had to grapple.

[12]

We
    would not accept the appellants submission that the respondent wasted court
    time. However, the respondent did raise issues and call witnesses in relation
    to issues that were irrelevant and unsuccessful at trial, as the trial judge
    noted. She also called the majority of lay and expert witnesses and spent the
    most time cross-examining witnesses.

[13]

The
    time spent at trial on those matters was driven by the respondent; and
    therefore it had to be within her reasonable contemplation that the appellants
    trial costs would increase as a result. Having caused those costs to be
    incurred, she cannot now object to compensating the successful party for them.

[14]

It
    must also be remembered that the respondent made serious and damaging
    allegations of abuse against her brother. It was perfectly reasonable for the
    appellant, a retired teacher, on whom the respondents accusation of sexual
    abuse would have been particularly hard, to put forward a vigorous defence and
    counterclaim in order to protect and salvage his reputation. While the
    respondent was entitled to her day in court, she could not be surprised that
    the appellant would fiercely oppose her claim. The appellant did so in a
    measured and proper way. It is commendable that he was able to secure counsel
    at such a reasonable rate.

[15]

In
    addition to all of the other factors under r. 57.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, and s. 131(1) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, it is helpful to look at the trial
    costs requested by the respondent and awarded by the trial judge. We recognize
    that the respondents costs are not determinative of what costs are reasonable,
    fair and proportionate.  However, the respondents costs nevertheless provide
    assistance with the determination of those overarching factors, as well as with
    the question of the costs that should have been within the respondents
    reasonable contemplation to pay if unsuccessful.

[16]

The
    respondent claimed costs in the amount of $150,680.52 for fees and
    disbursements. The trial judge estimated that approximately $55,731.60 of this
    amount on a partial indemnity basis denoted a self-representation counsel fee
    sought by the respondent.

[17]

The
    trial judge awarded costs to the respondent of $97,000, calculated as follows: $50,000
    partial indemnity pre-trial legal fees; $5,000 substantial indemnity counsel
    fee to the respondent; and total disbursements in the amount of $42,000.

[18]

When
    factoring in the fees charged by the respondents previous lawyers and what the
    respondent would have expected to pay in legal fees if she had not been
    self-represented through most of these proceedings, the respondents claimed
    trial costs are comparable to those claimed by the appellant.  Accordingly, the
    appellants costs should have been within the respondents reasonable
    contemplation to pay if she were unsuccessful.

[19]

The
    appellant was entirely successful on his appeal. The respondents claim was
    dismissed and his counterclaim was allowed. The appellant is therefore entitled
    to his reasonable trial costs. We accept as the point of departure that trial
    counsel spent 732 hours on this matter.

Partial, substantial or full indemnity
    costs?

[20]

The
    appellant seeks full payment of his trial counsels actual fees on the basis
    that his trial counsels hourly rate was so low that it amounts to a partial
    indemnity rate.

[21]

The
    respondent submits that the appellant has effectively claimed his costs on a
    full indemnity basis and that there is no reason to allow this level of costs
    in this case.

[22]

We
    agree with the respondents submission. Unless full indemnity costs are
    warranted, it would be an error in principle to grant an award of costs said to
    be on a partial indemnity basis that is virtually the same as an award on a
    substantial or full indemnity basis. The appellants argument has been previously
    rejected by this court:  see,
Boucher v. Public Accountants Council for the
    Province of Ontario
(2004), 71 O.R. (3d) 291 (C.A.), at para. 36;
Wasserman,
    Arsenault Ltd. v. Sone
, 164 O.A.C. 195 (C.A.), at para. 4;
790668
    Ontario Inc. v. DAndrea Management Inc.
, 2015 ONCA 557, 336 O.A.C. 383,
    at paras. 21-23.

[23]

To
    order otherwise would remove the distinction between partial indemnity and
    substantial or full indemnity costs and overcompensate the appellant. Partial
    indemnity costs are simply that: partial and not full compensation for a
    partys costs. Substantial indemnity provides far greater compensation and full
    indemnity results in complete reimbursement for costs. As a result, absent
    applicable settlement offers, substantial and full indemnity costs are reserved
    for rare and exceptional cases.

[24]

Is
    this one of those rare and exceptional cases where substantial or full indemnity
    costs are justified? We do not understand the appellant to be arguing that
    substantial or full indemnity costs should be awarded.

[25]

Other
    than the submissions concerning the respondents raising irrelevant issues that
    served to lengthen the trial, the appellant does not argue that the respondent
    engaged in the kind of reprehensible or frivolous conduct that would warrant
    substantial or full indemnity costs.

[26]

Certainly,
    it would be difficult to make such an argument having regard to the trial
    judges commendation of the manner in which the respondent represented herself
    at trial and his conclusion that both the respondent and the appellant were
    equally compelling and credible as witnesses.

[27]

Accordingly,
    the appellant is entitled to his reasonable, fair and proportionate partial
    indemnity costs, in an amount which should have been in the respondents
    reasonable contemplation to pay if she were unsuccessful at trial.

What amount of partial indemnity costs should be awarded?

[28]

According
    to the respondent, as a first step, the appellants claimed costs should be discounted
    by 40% to arrive at partial indemnity costs of $85,719.

[29]

What
    discount should be applied is within the discretion of the court and not a
    matter of a precise mathematical calculation. As this court noted in
Wasserman
,
    at para. 5:

The degree of indemnification intended by an award of partial
    indemnity has never been precisely defined.  Indeed, a mechanical application
    of the same percentage discount in every case where costs are awarded on a
    partial indemnity scale would not be appropriate. In fixing costs, courts must
    exercise their discretion, with due consideration of the factors set out in
    rule 57.01(1), in order to achieve a just result in each case.

[30]

While
    we agree that a discount to the appellants costs should be made to reflect his
    costs on a partial indemnity basis, the 40% proposed by the respondent is
    excessive in the circumstances of this case.

[31]

In
    our view, a discount of 20% of the appellants claimed fees is appropriate to
    achieve a just result in this case. We agree with the appellants submission
    that his counsels rate was unusually low for his lawyers years of experience,
    the ten years that he carried this brief without an increase of his hourly
    rate, and the complexity of this action.  Accordingly, as a starting point, we
    would fix the appellants partial indemnity fees in the amount of $114,292.40, plus
    the applicable HST.

[32]

The
    respondent submits that the appellants partial indemnity costs should be subject
    to the following further deductions:

(i)

a reduction of 32.1% to reflect
    the costs associated with a bilingual proceeding;

(ii)

an exclusion of the costs of two
    motions which were determined in the respondents favour;

(iii)

an exclusion of costs related to
    court time and resources wasted by the appellant and his counsel; and

(iv)

an exclusion of unnecessary
    disbursements of $38,516.99.

[33]

We
    shall consider each of those items in turn.

(i)

Costs of a bilingual proceeding

[34]

The
    respondent submits that there were additional costs unnecessarily incurred as a
    result of the appellant requiring interpretation services during the bilingual
    trial because he does not understand the French language. She maintains that it
    would be unfair to require her to pay for those costs as it would be tantamount
    to punishing her for exercising her right to a bilingual proceeding.

[35]

We
    disagree.

[36]

First,
    there is no evidence to support the respondents estimates of the time allegedly
    spent on interpretation during the trial, which, at almost a third of the
    trial, are excessive and not borne out by the trial transcript.

[37]

Second,
    this was a bilingual civil proceeding pursuant to s. 126 of the
Courts of
    Justice Act
. As a result, each party had the respective right to lead
    evidence and make submissions in French or English, and receive the assistance
    of an interpreter, if required.

[38]

Finally,
    any extra trial time taken up with interpretation is no different than any
    other step in a trial. There is no evidence that the appellant or his counsel
    were improperly using interpreters or otherwise wasting trial time.

[39]

An
    examination of the trial transcript demonstrates that the trial was lengthy
    because of the number of witnesses called, including expert witnesses, and
    their cross-examinations, not because of the interpretation. All of this is
    normal trial time. The successful party, the appellant, is entitled to his
    reasonable costs for the trial, without any deduction to reflect the fact that
    he required the services of an interpreter.

(ii)

Costs of the two motions in the respondents favour

[40]

The
    respondent claims the $2,500 in costs awarded to her on January 20, 2012.
[1]
She also claims costs for her successful motion to adjourn the trial to allow
    the respondent to review the opinion provided by an expert for the appellant,
    Dr. Slako.

[41]

We
    agree that the amount of $2,500 that was awarded to the respondent by Edwards
    J. in his January 20, 2012 ruling must be deducted from the appellants costs,
    and that the appellant would not be entitled to costs in respect of this motion.
    In the absence of any details provided by the appellant demonstrating that the
    costs of this motion are not included in his claim for costs, we would deduct a
    total of $5,000 from the appellants costs to reflect the respondents success
    on this motion.

[42]

With
    respect to the second motion, the appellant and not the respondent is entitled
    to the costs associated with the respondents motion to adjourn the trial.  In
    his November 21, 2011 ruling, Edwards J. commented negatively on the
    respondents lack of co-operation to submit to a defence medical examination
    and stated that it was with the greatest of reluctance that he acceded to the
    respondents request for an adjournment. The adjournment was clearly an
    indulgence and hardly the kind of success that would displace the appellants
    right to his costs of the action, including this motion.

(iii)

Wasted
    court time and resources

[43]

The
    respondent has provided a schedule in which she submits that 14.73 hours were
    wasted by the appellant or his counsel in such actions as, for example, looking
    for documents or taking too long to answer questions. We disagree. There is no
    evidence to substantiate the respondents calculation.  Moreover, none of the
    actions described can be fairly characterized as anything other than part of
    the normal vicissitudes of any trial.

[44]

Second,
    the respondent submits that she should not have to pay any costs related to the
    appellants motion to require her to submit to a defence medical examination
    because the motion was withdrawn without explanation in October 2011.

[45]

We
    do not accept this submission.

[46]

Where
    a motion is abandoned, the responding party is ordinarily entitled to costs
    forthwith, unless the court orders otherwise: r. 37.09(3). This is an
    appropriate case to order otherwise.

[47]

The
    respondents continued and unreasonable refusal to submit to a defence medical
    examination was the subject of negative comment by Edwards J., as already noted.
    On November 21, 2011, Edwards J. ordered that the respondent attend a defence
    assessment to be organized by defence counsel and to be conducted by either a
    female psychiatrist or a female psychologist of the choosing of the defence. However,
    as the trial judge commented, the respondent frustrated the defence assessment.

[48]

In
    these circumstances, where the appellant should not have been required to bring
    a motion to compel the respondents attendance and the motion was withdrawn in
    the interest of not delaying the trial, the appellant is entitled to his costs
    related to this issue.

(iv)

Unnecessary disbursements

[49]

The
    respondent submits that the claimed disbursements associated with the
    transcription of the bilingual trial, and with the services of Bob Woodman, and
    the appellants expert, Dr. Brian Hoffman, were excessive and unnecessary.

[50]

We
    agree with the appellants second point only.

[51]

First,
    the transcripts referenced in the appellants costs outline are the transcripts
    from the examinations for discovery. They are a proper and recoverable
    disbursement.

[52]

Second,
    we agree with the respondent that the description in the appellants costs
    outline for $3,980.40 paid to Bob Woodman to interview witnesses, is
    insufficient to recover this amount as a disbursement. As the respondent points
    out, there is no indication of Mr. Woodmans qualifications, hours spent or
    hourly rate. While interviewing of potential witnesses for a trial, whether or
    not they are ultimately called to testify, is part of trial preparation, in
    order to be considered as a disbursement (for example as an agents or
    investigators fee), more detail is required.

[53]

Finally,
    there is no basis for the objection to the disbursement paid to Dr. Brian
    Hoffman. His experts report and testimony at trial were required in order to
    respond to the respondents expert, Dr. Maddocks. He was required to spend the
    time to review the respondents records and other documents because she unreasonably
    refused to attend for a medical examination. His report was also required to
    support the appellants defamation claim, which was successful on appeal. The
    respondent spent four days cross-examining him. The appellant is entitled to
    this disbursement.

Conclusion

[54]

What
    then are the reasonable, fair and proportionate trial costs that the respondent
    should be required to pay to the appellant?

[55]

For
    all of these reasons, we fix the appellants partial indemnity trial costs as
    follows: $109,292.40 plus HST of $14,208.01 for fees and $38,738.84 for
    disbursements, for a total of $162,239.25, including the applicable HST. The
    respondent shall pay the amount of $162,239.25 to the appellant within 60 days
    of the release of these reasons.


Appeal costs

[56]

In
    para. 81 of the appeal judgment, we stated that the appellant sought $50,000 in
    partial indemnity costs. That was incorrect. The appellant sought $50,000 for
    fees but also $16,683.65
[2]
for disbursements.

[57]

The
    appellants disbursements are appropriate and reasonable, and we allow them in
    full.

[58]

Accordingly,
    our previous order is amended as follows:

i.        The
    appellant is entitled to his partial indemnity appeal costs of $66,683.65,
    inclusive of all amounts.

ii.       The
    respondent shall have 60 days from the release of these reasons to pay the
    additional amount of $16,683.65. Interest on that amount, if unpaid, shall not
    start to run until 60 days from the release of these reasons.

K.M.
    Weiler J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.





[1]

The respondent erroneously states that she was awarded these
    costs following a successful motion to have a bilingual trial; however, in his
    January 20, 2012 ruling, Edwards J. noted that the parties agreed that the
    trial should proceed as a bilingual proceeding and awarded $2,500 in costs to
    the respondent as a result of her preparation in response to the appellants
    preliminary motion dealing with the issue as to whether the trial had commenced
    on November 21, 2011.



[2]

By letter dated March 18, 2016, appellants counsel advised
    that the appellants disbursements on the appeal were $5,000 less than claimed
    in the costs outline as a result of the subsequent receipt of an administrative
    refund.


