Ont. Superior Court finds plaintiff's costs in medical malpractice case unreasonable and excessive

Too many hours billed for preparation and attendance in a virtual motion: court

Ont. Superior Court finds plaintiff's costs in medical malpractice case unreasonable and excessive

The Ontario Superior Court has reduced a plaintiff's claim of costs in a medical malpractice case, finding it unreasonable and excessive.

Nazarha Rasul brought an action claiming medical malpractice against Dr. Patrick Whelan. In 2012, Rasul went to the emergency department of Markham Stouffville Hospital, complaining of abdominal pain. Dr. Whelan, a general surgeon, conducted a colonoscopy and a laparoscopic left colon resection to address Rasul's diverticular disease. After the operation, Rasul complained of abdominal, pelvic, and rectal pain, which ultimately resulted in the detection of an injury to her ureter.

Rasul filed an action again against Dr. Whelan, alleging that his negligence caused damage to her kidney. Dr. Whelan sought to dismiss the action through a summary judgment, claiming that Rasul's action was barred by the expiry of the two-year limitation period provided by the Limitations Act.

The Ontario Superior Court of Justice dismissed Dr. Whelan's motion for summary judgment because his limitation defence raised genuine issues requiring a trial. Rasul disputed the costs of the motion for summary judgment.

Excessive costs

Dr. Whelan conceded that Rasul is entitled to the costs of the motion on a partial indemnity basis, according to the rule that "costs follow the event." However, he alleged that the costs claimed by Rasul were excessive and did not accord with the principle of reasonable indemnity.

Rasul claimed that her costs, on a partial indemnity basis, are over $49,000, all-inclusive of fees, disbursements, and applicable taxes. Her cost outline stated that her lawyer, paralegal, and law clerk billed 83.6 hours to respond to the motion. She further claimed that she had incurred disbursements, which included a medical report and document copies.

Dr. Whelan argued that a cost award of $10,000 to $15,000 would be fair and reasonable. The Ontario Superior Court of Justice agreed.

Costs must be fair, reasonable, and proportionate

In its reasons for judgment, the Superior Court said, "The objective of quantification of costs is to determine an amount that is fair, reasonable, and proportionate, understanding that the mathematical quantification of what the successful litigant has spent in legal fees is pertinent but not dispositive."

The court found that a total of 83.6 hours for preparation and attendance at the motion, heard virtually, is excessive. The court also pointed out that the plaintiff delivered the responding motion record as a self-represented litigant before the appointment of her counsel. Since Rasul did not incur any lawyer's time in providing the responding motion record, the amount of time incurred by the plaintiff was 20 hours more than the time set out by Dr. Whalen's counsel in their bill of costs. The court said that the plaintiff was claiming fees beyond "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," which is a factor in the quantification of costs under the Courts of Justice Act.

The court further found that Rasul's responding materials did not reflect any meaningful increase in costs resulting from Dr. Whelan's abandonment of the other grounds for dismissal. The court also said that Rasul was required to deliver an expert medical report to sustain her medical malpractice action. This action was independent of Dr. Whelan's motion for summary judgment rather than a proper disbursement to assess the dismissal motion.

The court also found that Rasul did not file any supporting materials or details supporting her claim for disbursement costs for "copies of any documents or authorities prepared for or by a party" and "copies of motion material." The court pointed out that the motion hearing was conducted virtually with electronic documents. The court emphasized that disbursements are recoverable if reasonable, not excessive, and charged to the client.

The court ultimately concluded that the fair and reasonable amount of the costs of the motion is $12,000, all-inclusive of fees, disbursements, and applicable taxes. 

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