Walker v. Ritchie et al., (2006) 217 O.A.C. 374 (SCC)

JudgeMcLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court of Canada
Case DateOctober 13, 2006
JurisdictionCanada (Federal)
Citations(2006), 217 O.A.C. 374 (SCC);2006 SCC 45

Walker v. Ritchie (2006), 217 O.A.C. 374 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2006] O.A.C. TBEd. OC.067

Donald J. Ritchie and Harold Marcus Limited (appellants) v. Stephanie Suzanne Walker, Gary Walker, Rosemary Walker, Laura Walker, Alyssa Walker and Christine Walker, an infant by her litigation guardian, Gary Walker (respondents)

(31001; 2006 SCC 45; 2006 CSC 45)

Indexed As: Walker v. Ritchie et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

October 13, 2006.

Summary:

The plaintiff driver (Stephanie) crested a hill and struck a tractor-trailer blocking the road as the defendant driver attempted to back it into his driveway. Stephanie, a 17 year old high school student, suffered catastrophic injuries, including brain damage, cognitive deficits and left side paralysis. Stephanie and her family brought a negligence action for damages against the defendant driver and the defendant owner of the tractor-trailer.

The Ontario Superior Court, in a judgment reported [2003] O.T.C. 3, found the defendants negligent and solely at fault. The court awarded Stephanie damages totalling $4,959,901. The family members were awarded damages under the Family Law Act. The plaintiffs were awarded costs of $440,167 plus a $192,600 premium. The defendants appealed portions of the damage award, including (1) the manner of calculating lost future income; (2) the award for loss of an interdependent relationship; (3) the lump sum award for the cost of a full-time nanny for seven years for child-care purposes; (4) the award for vocational rehabilitation and job coaching; (5) the award for technology and a fitness membership; (6) the finding that the "non-earner" benefits received from the no-fault insurer were not deductible from damages; and (7) the discount rate applied. The defendants also appealed the quantum of costs and the awarding of a premium.

The Ontario Court of Appeal, in a judgment reported (2005), 197 O.A.C. 81, dismissed the appeal respecting damages, but allowed the appeal in part respecting costs. The amount for counsel fees was reduced. Otherwise, the costs award, including the premium, was affirmed. The defendants appealed the awarding of the premium.

The Supreme Court of Canada allowed the appeal and set aside the $192,600 premium.

Practice - Topic 7061

Costs - Party and party costs - Counsel fees - Increased or decreased fee (incl. premium) - The 17 year old plaintiff suffered catastrophic injuries in a motor vehicle accident - The plaintiff recovered damages more favourable than her settlement offer, entitling the plaintiff to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter -The plaintiff was awarded $440,167.90 for legal fees plus a $192,600 premium - At the time, contingency fee arrangements were barred - The Ontario Court of Appeal held that the trial judge did not err in awarding the premium given the outstanding result achieved and the financial risk of nonpayment undertaken by the plaintiff's counsel in funding the litigation because of the plaintiff's limited financial means - The court held that a risk premium could be awarded against a defendant where the plaintiff was entitled to substantial indemnity costs under rule 49 (unaccepted settlement offer), but could not be awarded if a plaintiff was awarded only partial indemnity costs - The Supreme Court of Canada disagreed and set aside the premium - The risk of non-payment to plaintiff's counsel was not an appropriate consideration in awarding costs under Civil Procedure Rule 57.01(1) as it read at the relevant time - The court agreed that "a defendant has no knowledge of the private arrangements between the plaintiff and his or her counsel and thus has no means of measuring the risk of engaging in litigation".

Cases Noticed:

Lurtz v. Duchesne et al. (2005), 194 O.A.C. 119 (C.A.), refd to. [para. 7].

McIntyre Estate v. Ontario (Attorney General) (2002), 164 O.A.C. 37; 61 O.R.(3d) 257 (C.A.), refd to. [para. 12].

Stribbell v. Bhalla (1990), 73 O.R.(2d) 748 (H.C.), refd to. [para. 13].

Desmoulin v. Blair (1994), 76 O.A.C. 1; 21 O.R.(3d) 217 (C.A.), refd to. [para. 14].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 17].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 18].

Finlayson et al. v. Roberts et al. (2000), 136 O.A.C. 271 (C.A.), agreed with [para. 31].

Burlington (City) v. Dague (1992), 505 U.S. 557, refd to. [para. 33].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 131(1) [para. 18].

Rules of Civil Procedure (Ont.), rule 49.10(1), rule 49.10(2) [para. 23]; rule 57.01(1) [para. 20].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 175 to 177 [para. 25].

Counsel:

Earl A. Cherniak, Q.C., and Andra L. Maxwell-Baker, for the appellants;

Ronald G. Slaght, Q.C., and Rebecca Jones, for the respondents.

Solicitors of Record:

Lerners, Toronto, Ontario, for the appellants;

Lenczner Slaght Royce Smith Griffin, Toronto, Ontario, for the respondents.

This appeal was heard on May 10, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On October 13, 2006, Rothstein, J., delivered the following judgment in both official languages for the Court.

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59 practice notes
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    ...40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd......
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    • Irwin Books The Canadian Class Action Review No. 4-1, July 2007
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    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
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    • Canada
    • Irwin Books The Canadian Class Action Review No. 4-1, July 2007
    • July 1, 2007
    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
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    ...data-vids="">16 other sources SUPREME COURT OF CANADA Citation: Walker v. Ritchie, [2006] 2 S.C.R. 428 , 2006 SCC 45 Date: Docket: 31001 Between: Donald J. Ritchie and Harold Marcus Limited Appellants and Stephanie Suzanne Walker, Gary Walker, Rosemary Walker, Laura Walker, Alyssa Walker ......
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    • May 17, 2023
    ...Court of Canada decisions, including British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, and Walker v. Ritchie, 2006 SCC 45, confirm that a regime of costs is not, except in exceptional circumstances, intended to uphold access to justice by facilitating the capacity......
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3 firm's commentaries
  • Court Of Appeal Summaries (November 1-5, 2021)
    • Canada
    • Mondaq Canada
    • November 10, 2021
    ...40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd......
  • Court Of Appeal Summaries (November 1-5, 2021)
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    • Mondaq Canada
    • November 10, 2021
    ...40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd......
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10 books & journal articles
  • Book Review: The Modern Cy-près Doctrine: Applications and Implications By Rachael P. Mulheron (2006)
    • Canada
    • Irwin Books The Canadian Class Action Review No. 4-1, July 2007
    • July 1, 2007
    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
  • Introduction
    • Canada
    • Irwin Books The Canadian Class Action Review No. 4-1, July 2007
    • July 1, 2007
    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
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    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
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    ...(“Subject to the provisions of an Act or rules of court, ... costs ... are in the discretion of the court”). See also Walker v. Ritchie, 2006 SCC 45 at paras. 17–18 [Walker]; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at para. 157, L’Heureux-Dubé J., dissent......
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