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.

Brewer v. Canada Corp No. 343827-9, 2021 ONSC 5428

In Brewer v. Canada Corp No. 343827-9, Justice Bell of the Superior Court of Justice considered the merits of a motion for security for costs as a result of a Plaintiff being a resident outside of Ontario. Justice Bell ultimately decided that the Plaintiff was required to post security and that they shall not take any further steps in the action until the specified amount was posted and proof was provided to Defendants’ counsel.

Background

The Plaintiff, Ms. Brewer, alleged that she was injured while dining at the 360 Restaurant in the CN Tower in Toronto, Ontario. The Plaintiff alleged that when she turned around to speak to another guest, her foot hit “the uneven and rotating floor” and as a result, she fell, hitting her head.

The Plaintiff commenced her action in August of 2018. In September of 2018, the Defendants put Ms. Brewer on notice that they considered her claim unmeritorious and that they intended to seek an order for security for costs on the basis that she lived in Florida and was therefore an out-of-province resident.

The Defendants continued to reiterate their concern regarding recovering the costs of their litigation and requested that Ms. Brewer post $35,000.00 as security towards the costs of the action. The Plaintiff failed to respond to this request until April of 2020.

Plaintiff’s counsel advised the Defendants that Ms. Brewer was impecunious and could not afford to post the $35,000.00. Counsel for the Defendants requested records in support of the impecuniosity claim in order to move forward with scheduling examinations for discovery. The records were not produced by Ms. Brewer and the Defendants maintained their position with respect to scheduling examinations for discovery given that the security for costs issue was still pending.

In March of 2021, Ms. Brewer served the Defendants with a notice of examination requiring their attendance on August 11, 2021. The Defendants then brought their motion for security for costs.

Analysis

Rule 56.01 (1)(a) of the Rules of Civil Procedure provides that the court, on motion by the Defendant, may make such order for security for costs as is just where it appears that the Plaintiff is ordinarily a resident outside of Ontario.

It is important to note that Rule 56.01 (1) does not create a prima facie right to security for costs. The rule triggers an inquiry in which the court, using its broad discretion, considers multiple factors to make such order as is just in the circumstances, taking into account the merits of the claim, the financial circumstances of the Plaintiff, and the possibility of an order for security for costs preventing the claim from proceeding.

The Court of Appeal in Yaiguaje v. Chevron Corp, 2017 ONCA 827 analyzed Rule 56, stating that an order for security for costs should only be made where the justness of the case demands it. The court must consider the justness of the order holistically, examining all circumstances of the case and considering the overriding interest of justice to determine whether or not it is just for the order to be made.

The initial onus is on the Defendant to show that the Plaintiff falls within one of the enumerated categories of Rule 56.01. Once the Defendant meets the initial onus, the Plaintiff can rebut the onus and avoid security for costs by showing that they have sufficient assets in Ontario or a reciprocating jurisdiction to satisfy the costs order, the order is unjust or unnecessary, or the plaintiff should be permitted to continue with the action despite their impecuniosity.

Because the Plaintiff is ordinarily a resident in Florida, the Defendants met their initial onus that the Plaintiff falls under Rule 56.01 (1)(a). The issue that Justice Bell needed to consider was whether it was just to order the security for costs.

Justice Bell first considered whether the Plaintiff was impecunious. After a review of Ms. Brewer’s assets versus her debts, Justice Bell concluded that her assets exceeded her debts by approximately $106,000.00. As Justice Perell stated in Montrose Hammond & Co. v. CIBC World Markets Inc., 2012 ONSC 4869, “a litigant who relies on impecuniosity bears the onus of proof on this point and must do more than adduce some evidence of impecuniosity and must satisfy the court that it is genuinely impecunious with full and frank disclosure of its financial circumstances.” A security for costs motion requires a rigorous standard of financial disclosure and Justice Bell concluded that the Plaintiff’s financial disclosure did not meeting the “robust particularity” standard. There were inconsistencies between the Plaintiff’s sworn statement and the 2019 statement of income and the Plaintiff failed to provide medical evidence to demonstrate her inability to return to work.

With respect to the merits of the claim, Justice Bell stated that it is a relevant consideration in a motion for security for costs. If a Plaintiff demonstrates impecuniosity, they can resist the motion by showing that the claim is not plainly devoid of merit. If impecuniosity if not established, closer scrutiny is warranted, and the relevant question becomes whether a plaintiff has demonstrated a good chance of success. Justice Bell declined to comment on the merits of the claim as the evidence filed on the motion was insufficient and the examinations for discovery had not been conducted.

Finally, with respect to the justness of the security for costs order, Justice Bell reiterated that the court must take a holistic approach. The Plaintiff argued that her impecuniosity was directly linked to the accident at the Defendants’ premises and that the Defendants were now attempting to use her financial circumstances against her to prevent the matter from continuing. The record, however, did not support Ms. Brewer’s argument that the motion was a defence litigation tactic to prevent her from continuing her case. The Defendants gave notice at the outset of the litigation of their intention to seek security for costs and the Plaintiff ignored their repeated requests for supporting documentation.

After considering all relevant factors, Justice Bell concluded that it was just in the circumstances that the Plaintiff be required to post security for costs in an amount that included costs incurred by the Defendants to date (not including the subject motion) and costs projected to be incurred up to and including documentary discovery and examinations for discovery. Justice Bell ordered that the plaintiff post security in the amount of $17,000.00 within 60 days of the release of the endorsement.

Diperri v. The Wawanesa Mutual Insurance Company, 2021 ONSC 4680

In Diperri v. The Wawanesa Mutual Insurance Company, Justice Myers of the Ontario Superior Court stayed the action and required the plaintiffs to advance their claim by way of appraisal under s.128 of the Insurance Act RSO 1990, c I.8.

Background

The plaintiff’s home suffered a water loss on July 8, 2013. The defendant, Wawanesa Mutual Insurance Company, insured the plaintiffs for losses to their goods as a result of the flood.

During the restoration, the plaintiffs allege that various items went missing from their home and/or storage. As a result, the plaintiffs sued their insurer in tort and bailment.

The plaintiff’s insurance policy with the defendant is subject to Statutory Condition 11 under the Insurance Act that requires parties to resolve specified disputes by appraisal under s.128 of the statute. Statutory Condition 11 states the following:

Appraisal

11. In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.

The plaintiffs filed for a proof of loss and the parties then used an appraisal to value some of the plaintiffs’ damaged goods. The plaintiffs also claim that a significant amount of their goods were never returned and sue for this loss as well.

In the statement of claim, the plaintiffs seek $226,000.00 for the damaged and lost goods, as well as other claims with respect to their recovery against the defendant, including aggravated and punitive damages. The claim was made against Wawanesa Mutual Insurance Company, but did not include the adjuster or the company who stored the plaintiffs’ goods. The plaintiffs conclude that their insurer is liable for the sub-bailment or negligent conduct of its sub-bailors, bailee, and contractor.

In an initial appraisal, the umpire stated that it will be up to the plaintiffs to decide whether or not they want to pursue action against any responsible party, including Wawanesa Mutual Insurance Company. Wawanesa Mutual Insurance Company will then advise if they wish to have the appraisal hearing reconvened.

The insurer has attempted to initiate the remainder of the appraisal hearing, but the plaintiffs have claimed that they are not seeking payment under their insurance policy but are instead claiming damages through independent causes of action that are not subject to the appraisal remedy.

Analysis

Quoting Bnei Akiva School v. Sovereign Insurance Co., 2016 ONSC 383 and 2343697 Ontario Inv. v. Aviva Insurance Company of Canada, 2019 ONSC 3106, Justice Myers stated that an appraisal will be required to value disagreements of the type set out in Statutory Condition 11 even where there are other issues between the parties in litigation.

There isn’t any case law that directly covers the issues in question, but Verlysdonk v. Premier Petrenas Construction Co. Ltd. et al., 1987 CanLII 4217 states that an appraisal to value insured loss does not prevent or preclude the insured from suing in tort the third part who caused the loss. Justice Myers stated that as long as the plaintiffs’ rights to bring a claim for any heads of damages not covered by the appraisal remain intact, the plaintiffs will not be prejudiced by having to resolve the valuation of the lost goods in a quick and affordable manner.

Justice Myers stated that the issue comes down to the interpretation of Statutory Condition 11. Statutory Condition 11 provides for an appraisal to be help when “there is disagreement concerning the value of the property insured, the property saved or the amount of loss.” The missing and damages goods from the plaintiffs’ home were property insured as they were property saved from the effects of the water loss. In another sense, damages caused to the plaintiffs’ goods by the insurer or its contractors as part of the process of determining and mitigating the plaintiffs’ insured loss is an amount of the loss.

Further, the initial appraisal umpire believed that this was a matter that could be dealt with under the process that had already commenced. The umpire stated that Wawanesa Mutual Insurance Company could unilaterally reconvene the appraisal hearing to process and deal with the losses. Therefore, Justice Myers concluded that the claim against Wawanesa Mutual Insurance Company for losses caused to the plaintiffs’ property removed from the house to allow the insured restoration to begin falls within the language of Statutory Condition 11.

Justice Myers granted the insurer’s motion and held that the claim was subject to appraisal under s.128 of the Insurance Act. Justice Myers stayed the action until completion of the appraisal and held that the Statutory Conditions controlled the result. The plaintiffs were ordered to pay the defendant its costs on a partial indemnity basis fixed at $3,000.00.

Noori v. Liu, 2021 ONSC 3445

This action arose from a motor vehicle accident. The defendants admitted liability, and at the 22-day jury trial on damages the jury awarded the primary plaintiff $40,000 in general damages and $0 in special damages. It awarded the FLA plaintiff $0. On the defendants’ threshold motion following trial, the general damages claim was dismissed. Before trial, there were two Rule 49 offers to settle made by the defendants of $35,000 and $77,000.

The defendants sought $275,259.55 in costs. Justice Coats applied of Rules 49 and 57, and the applicable case law, and ordered that the plaintiffs pay the defendants $152,680.93 in costs. Of the $100,000 limit available under the plaintiffs’ adverse costs insurance policy, $82,000 was used by plaintiff’s counsel for disbursements.

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.

Sarno v. Murphy, 2019 ONSC 7008

The plaintiff alleged to have sustained injuries resulting in chronic pain as a result of a motor vehicle accident. The plaintiff sued the defendant driver for damages. Following trial, the jury awarded the plaintiff $36,000 in gross general damages. The plaintiff recovered nothing after application of the statutory deductible. The defendant had made an offer to settle of $20,000 plus costs and disbursements 30 days before trial. Based on the defendant beating that offer, Justice Varpio awarded the defendant $150,000 in costs and disbursements, which he found to be a reasonable amount following a three-week trial. The plaintiff’s adverse costs insurance only covered $93,000 of those costs, so the plaintiff was given 12 months to satisfy the award.

De Brito v. Demeester, 2019 ONSC 6253

Two plaintiffs died in a motor vehicle accident wherein the defendant driver intentionally drove into a river. The third plaintiff survived with injuries, and the fourth plaintiff was the mother of the deceased plaintiffs. The father of the deceaseds commenced a separate action for damages. Aviva insured the defendant driver at the material time and added itself as a statutory third party to the action. It was agreed that the $200,000 limit would be split between the two estates and the surviving plaintiff. The mother of the deceaseds claimed against her OPCF-44 carrier, State Farm. Aviva was the OPCF-44 carrier for the surviving plaintiff. State Farm resolved the claim for $700,000 plus costs of $100,000 and disbursements of $27,372.65. Aviva’s $200,000 was split 52.5% to the mother and estates; 30% to the surviving plaintiff’ and 17.5% to the father of the deceaseds. At no time did Aviva pay its $200,000 into court. State Farm sought an order compelling Aviva to pay 50% of the costs agreed to in the settlement. Aviva argued that because it only faced $200,000 liability limits, it should not be responsible for costs paid by State Farm. Justice King disagreed and ordered Aviva to pay 50% of the costs, reasoning that Aviva still had an interest in the claim because the allocation of its $200,000 affected its exposure as the OPCF-44 carrier for the surviving plaintiff. Justice King noted that had Aviva paid the $200,000 into court, it would not have had to contribute to the costs settlement.

St. Marthe v. O’Connor, 2019 ONSC 4279

Following the trial in this matter, the plaintiff was awarded damages in the sum of $205,000. Costs against the defendants were fixed at approximately $380,000. In the costs decision, Justice Hurley rejected the defendant’s arguments on proportionality of damages to costs – particularly in light of the facts that the defendant admitted liability; the defence medical expert concluded that there was disability; and where the defendant made no attempts to settle (and with the plaintiff having made an offer to settle).

Al-Khouri v. Hawari, 2019 ONSC 3681

This action arose from a motor vehicle accident. At the pre-trial conference, Justice Trimble awarded costs in the amount of $1,000 against the defendant. The conference was attended by the plaintiff, the plaintiff’s counsel, the defendant’s counsel, and a representative of the defendant’s automobile insurer who defended the action on behalf of the defendant. The defendant maintained a “no liability” position. In response to questioning by Justice Trumble, the insurer representative admitted that she did not have authority to settle the case up to the policy limit if the facts supported it; that she reported to a committee for settlement authority; and that she had not made arrangements for a decision-maker within her company to be available by phone in the event she needed to seek authority. Justice Trimble found that the representative was not a decision-maker with authority to settle, and there was not an effective decision-maker available by phone to make decisions about settlement. Justice Trimble also was not satisfied that anybody could make a decision on settlement without reporting to an oversight committee. He concluded that the defendant had not complied with Rule 50.05(2) in the circumstances of the pre-trial conference.

Rososhansky v. Williams, 2018 ONSC 1964

The Plaintiff was injured in a motor vehicle accident. He produced several medical reports which indicated that he sustained head and neck injuries as a result of the accident. At the pre-trial, despite not yet conducting a medical examination of the Plaintiff, the Defendants took the position that there was “zero chance” of financial liability because the medical report that they would obtain would demonstrate no injuries attributable to the accident. Justice Koehnen found it disturbing that the Defendants had such certainty about the outcome of an independent medical examination that had not yet been commissioned. Justice Koehnen also criticized the Defendants for rendering the pre-trial “a waste of time” by relying on a medical report that had not yet been prepared, but insisting that there was no possibility of liability. As such, costs of the pre-trial were awarded against the Defendants.