Antony v. Kumarasamy, 2022 ONSC 6619

Less than a month before a scheduled trial, the plaintiff in an MVA personal injury action accepted an offer to settle from the statutory third party for $85,000 plus interest, disbursements, and costs to be agreed upon or assessed. The parties were unable to agree on costs and the plaintiff brought a motion for a determination by the court. One issue was whether the plaintiff was entitled to recover costs associated with two AB arbitrations and a CPP dispute. Justice Ramsay held that neither the AB nor the CPP costs were recoverable. While costs could be recovered for AB-related arbitrations, the plaintiff failed to provide evidence supporting any of the factors set out by the Court of Appeal in Cadieux. Justice Ramsay also found that the recovery of more than $1 million in SABS interest was a factor weighing against requiring the statutory third party in the MVA tort action to pay for AB-related costs.

With respect to the CPP dispute, Justice Ramsay held that CPP litigation costs are not recoverable in a MVA tort action because the Insurance Act does not impose any statutory requirement on the plaintiff to apply for or dispute CPP benefits.

Tryon v. Packham, 2022 ONSC 7210

This personal injury MVA action was dismissed by a jury following a 13 day trial. The jury concluded that the defendant was not negligent despite having rear ended the plaintiff. The jury accepted that the accident was caused due to the defendant’s sudden seizure. The jury further held that it was reasonable for the defendant to have been driving, and that he had no reason to anticipate the onset of the seizure. The defendant was awarded costs in the full amount sought: $140,109.10 inclusive of HST. In its analysis, the Court considered the factors under Rule 57 and accepted the defendant’s submissions in that regard.

Ozimkowski v. Raymond, 2022 ONSC 51

This action arising from a motor vehicle accident settled in the month before the scheduled trial for $300,000 inclusive of pre-judgment interest, plus disbursements of $52,678, and costs. The parties could not agree on the amount to be paid for costs. The defendant argued that the commonly used 15-10-10 guideline should apply, which would equate to costs of $35,000. The plaintiff argued for partial indemnity (60%) of docketed fees, which would equate to a total of $97,749 at the partial indemnity reduction. Justice Hackland awarded the plaintiff fees of $65,000 plus HST. Justice Hackland held that it was appropriate to depart from the usual 15-10-10 guideline given the proximity to trial, and in consideration that there had been a mandatory mediation, four case conferences, and three discoveries of the plaintiff.

Davies v. The Corporation of the Municipality of Clarington, 2021 ONSC 6449

After a trial lasting more than 140 days in this class action, the defendants were successful in beating their offers to settle, and as a result they obtained a costs award that totaled in excess of $3.4 million. The plaintiff resided in Poland and was impecunious. During the course of the litigation he received advances from four different litigation loan providers. It was estimated that the outstanding loans had an accrued principal and interest owing in excess of $6 million. The defendants, believing they would not recover against the plaintiff, sought to recover their costs award against the litigation loan providers since their loans allowed the litigation to proceed and may have prevented settlement due to high interest rates. Justice Edwards declined to make any award against the non-party litigation providers in this case, but acknowledged that litigation loan providers may be liable for
costs awards in proper circumstances.

Justice Edwards directed that loan documentation must be listed in a plaintiff’s Schedule B. By listing it there, the defendant is put on notice of a potential claim on the loan interest if the plaintiff is awarded costs at trial. In certain cases (such as personal injury actions) if a defendant refuses an advance payment to the plaintiff, the defendant is more likely to become liable for interest on the plaintiff’s litigation loan as a disbursement. Second, the defendant should put the loan provider on notice that they may become responsible for costs as soon as possible. In the present case, the defendants did not provide notice to the loan providers until after trial despite knowing of the loans for years prior.

Hewitson Holdings Inc. v. Bur-Met Contracting and Concrete Walls, 2021 ONSC 3197

This property loss action was commenced under Ordinary Procedure in the Superior Court.

On the eve of trial, the plaintiff sought to amend the claim to have the action converted to Simplified Procedure. The defendants argued that the claim should have been brought under Simplified Procedure at the outset, and sought costs associated with having to defend the matter under Ordinary Procedures. The plaintiff argued that the cost consequences could only be considered at the end of trial. Justice Pierce granted the amendments sought by the plaintiff, but also ordered the plaintiff to pay the defendants a number of claimed costs. She accepted that the plaintiff ought to have known from the outset that the claim was going to total less than $100,000. She ordered payment of $7,500 in substantial indemnity costs for one of the defendants. The other defendant was awarded $8,500 in substantial indemnity costs plus $22,836.74 for an expert report it would not otherwise have obtained. The further consequences of Rule 76.13(3) were left to the trial judge.

Micevic v. Johnson & Johnson, 2019 ONSC 4430

In a decision on settlement approval, which included an order for costs, Justice Morgan did not indicate when precisely the costs payment was due. In this decision, Justice Morgan noted that the understanding is that court orders are effective immediately. As a matter of ordinary business practice, money is typically to be paid within 30 days of its being due. He held that a judgment that concludes: ‘The [party] shall pay the [opposing party] costs in the amount of…’ and that provides no outside deadline for payment, ordinary business sense is presumed to govern the parties.