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Civil Litigation - Costs - Disbursements

. Jerry v. Black

In Jerry v. Black (Div Court, 2023) the Divisional Court finds that the court had jurisdiction to order disbursements for a missed medical assessment agreed to by the other side:
[14] Assessing costs is an exercise of discretion, to be carried out reasonably and with a view to facilitating access to justice: Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 31. A proper costs assessment requires a court to examine the relevant factors critically, but also to consider whether the result of the critical analysis is “fair and reasonable”: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356, citing Boucher, at para. 24; Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100; Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 60.

[15] The Superior Court has broad jurisdiction to make orders as to costs: See 1318847 Ontario Ltd. v. Laval Tool and Mould Ltd., 2017 ONCA 184, at para. 69. The discretion to award costs is informed by the inherent jurisdiction of superior courts of civil jurisdiction in Canada as recognized by the Supreme Court of Canada in Endean v. British Columbia, 2016 SCC 42, 401 D.L.R. (4th) 577 (S.C.C.), at para. 23:
Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.
[16] Beginning with the statutory provisions in Ontario’s civil costs regime, the Superior Court of Justice is empowered to order costs “of and incidental to a proceeding or a step in a proceeding” by virtue of section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43. Costs decisions are in the discretion of the court. The court is empowered to decide “by whom and to what extent” costs shall be paid. This costs power is not absolute: it is subject to the provisions of an “Act or the rules of court.” Again, this is informed by the reality that although possessed of residual discretion, a superior court of civil jurisdiction does not have absolute authority: 80 Wellesley Street E. Ltd v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA), 1972 CarswellOnt 1010, [1972] 2 O.R. 280.

[17] Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out a comprehensive, but not closed, list of factors for the court to consider in awarding costs.

[18] Neither s. 131 of the CJA, nor any of the provisions within r. 57 limit a judge’s discretion to consider and potentially order payment of costs in circumstances where an independent medical examination, as a step in a proceeding on agreement of counsel, attracts a missed appointment fee. The provisions on how such appointments can be required is also provided for in the CJA, and in the rules of court.

[19] Section 105 of the CJA legislates the power of the court to order a party to attend for a physical or mental examination, defines who may carry out such examinations, and requires a party being examined to respond to questions from the health practitioner carrying out the examination.

[20] Rule 33 of the Rules of Civil Procedure specifies the process for obtaining an order under s. 105, prescribes the content of orders to attend for medical examinations, the process for examinations and penalties for non-attendance. It also treats examinations that have been consented to without court order similarly to those made under court order for the purposes of the provisions in r. 33.01-33.07: see r. 33.08 which provides:
Examination by Consent

33.08 Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent. R.R.O. 1990, Reg. 194, r. 33.08.
[21] The implications of r. 33.08 are that, unless otherwise waived by the terms of the consent, a party who fails to attend for a medical examination that has been consented to in writing is subject to the same penalty found in r. 33.07 for failing to comply as a party who has been ordered to attend.

[22] As a logical extension of treating a consensual independent medical examination like a court-ordered examination, it is consistent to include the ability to order costs as a consequence for non-attendance, depending on the circumstances of the case. It would also respond to the underlying policy aims of costs: it would encourage consents in the appropriate cases and reduce the costs of unnecessary motions. The ability to order costs for a “no-show” gives the court a practical tool to respond to those who might wish to unfairly add to the opposing party’s costs.

[23] The parties were not able to provide any appellate level guidance on the jurisdictional question. The Respondents rely on the decision in Fung, which had a different factual backdrop: in that case, the defendants had sought to recover the cost of a missed appointment for an independent medical appointment made unilaterally for the plaintiff.

[24] The trial level jurisprudence on this question treats decisions on costs of missed appointments as one of discretion rather than jurisdiction where a Rule 33 examination on consent or by court order is involved, versus a unilaterally scheduled appointment without written consent. This is consistent with the context, policy aims, and the content of the rules, as well as the CJA.

[25] In Valentine v Rodriguez-Elizalde, 2016 ONSC 6395, at para. 72, the defendant admitted liability and the jury awarded damages. In assessing costs, Firestone, J. concluded that the $800 non-attendance fee paid by plaintiff’s counsel to the defendant solicitors because the plaintiff had failed to attend a defence medical “was not an assessable disbursement.” (See para. 72).

[26] In Armocida v. Sanelli, 2003 CanLII 34705 (ON SC), Master Dash reviewed Rule 33 in the context of a missed medical appointment that was not ordered and was not the subject of written consent in accordance with r. 33.08. Master Dash concluded that in such circumstances, he had no authority to order reimbursement for the non-attendance fee, because the appointment was unilaterally scheduled and not made within the Rule 33 regime. Heeney, J. employed similar reasoning in Moore v. Jacob, 2022 ONSC 10, at paras. 40-41.

[27] In Giancoulas v. Aetna Life Insurance Co. of Canada, 2002 CanLII 41993 (ON CA), 2002 CarswellOnt 1366 (ON CA), the Court of Appeal for Ontario upheld a costs order of $1,287.50 made by the motions judge for [a plaintiff’s] failure to complete a defence medical appointment and failure to reschedule to complete the assessment.

[28] In a more recent case involving a Rule 33 medical examination, Master Dash was prepared to order the cost of a missed medical examination, as summarized in the overview of the litigation by Justice Chalmers: see Francis v. Leo A. Seydel Limited o/a Canadian Tire Associate Store #126, 2021 ONSC 6874, at para. 5.

[29] In Fung, Edwards J. would have limited the reimbursement for a missed appointment to circumstances where the medical assessment was ordered by the court, and not where it was the product of an agreement among counsel. The issue arose secondarily to a motion for security for costs and did not appear to involve the application of Rule 33 to “in-writing” consent medical assessments under the Rule: see Fung at paras. 11-12.

[30] In Briscoe v. Borges et al. Endorsement of Hourigan, J. dated April 4, 2013 (S.C.J.) Justice Hourigan (as he then was) disagreed with the application of Fung and ordered that the defendant pay for the missed appointment. In his endorsement, Hourigan J. wrote:
I disagree with the conclusion of Justice Edwards in Fung. The primary purpose of the Rules is to ensure that proceedings are dealt with in the most efficient and least costly manner possible. To insist that a court order be obtained to protect the plaintiff from cancellation/no-show fees runs contrary to the purpose of the rules. Moreover, the defendant having agreed to the date and being made aware that she would face the $2,000 fee if she did not attend, is estopped from now saying that she would only be responsible for the fee if a court order was obtained.
[31] In Stewart v. Vandenbosch, (Endorsement dated August 10, 2018) (S.C.J.), Master Jolley found that she had jurisdiction to order payment of a $1,695 missed appointment fee on the basis that the plaintiff had consented in writing to the independent medical examination: See Stewart at paras. 3-9.

[32] Finally, in Chapell v. Marshall Estate, 2001 CarswellOnt 2731 at paras 24-34, Justice Valin ordered reimbursement for a missed independent medical examination, which had not been court-ordered, nor apparently the subject of any written consent. Valin, J. grounded the order of reimbursement in counsel’s obligations of civility and the cost to the defendant of plaintiff- counsel’s lack of communication about the assessment, and on the fact that counsel for the plaintiff had been put on notice of the “No Show” policy of the defence physiatrist.

[33] The cases on this issue have three things in common: they are highly fact specific exercises in discretion, with a variety of approaches taken by various judicial officers, usually concerning amounts that are modest in the context of the overall cost of litigation. Where judicial officers have limited their discretion, it has been in the context of unilateral appointments, without either written consent or court order, thus not being constituted under the Rule 33 regime.

[34] I conclude that the court’s broad discretion to order costs, the provisions of the CJA and the Rules and the underlying policy aims behind costs, all favour a finding that there is jurisdiction to order costs, including those relative to missed appointment fees in circumstances where there has been a written consent to attend an appointment within Rule 33. With respect, the motion judge erred in law in finding that she did not have was no jurisdiction to consider making an order for reimbursement of the missed appointment fee in circumstances where the Respondent consented in writing to attend for the independent medical examination.
. Charlesfort Developments Limited v. Ottawa (City)

In Charlesfort Developments Limited v. Ottawa (City) (Ont CA, 2021) the Court of Appeal considered how the court assesses expert witness fees as disbursememts:
[4] The fees of experts are subject to a reasonableness test, just as are the fees of counsel. The fees of experts are not, however, subject to further reduction based on the distinction between substantial indemnity costs and partial indemnity costs: 3664902 Canada Inc. v. Hudson's Bay Co. (c.o.b. Bay Department Stores), (2003), 2003 CanLII 26101 (ON CA), 169 O.A.C. 283, at para. 17. Put another way, the fact that a party may have paid its expert an exorbitant fee for their services does not mean that the other party must pay that amount. The other party must only pay what the court views as reasonable for the services provided: Yip v. HSBC Holdings plc, 2018 ONCA 626, 141 O.R. (3d) 641, at paras. 89, 91.


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Last modified: 19-02-23
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