Category: Costs

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.

Grieves v. Parsons, 2018 ONSC 1905

The jury found that the Plaintiff was entitled to $61,000.00 for past loss of income and $90,000.00 for future loss of income/loss of competitive advantage. Six months before the trial, the Defendants made a Rule 49 offer of $70,000.00, inclusive of all claims and PJI, plus partial indemnity fees up to the date of the offer. The Defendants submitted that adverse cost consequences should apply to the Plaintiff following the date of the offer to settle, as after certain deductions, the awards for past and future loss of income were less than the offer. Justice Charney concluded that, after deductions, the Plaintiff was entitled to recover $72,317.00, just barely beating the Defendants’ Rule 49 offer. As such, the cost consequences of Rule 49 did not apply and the Plaintiff was entitled to his costs of $115,000.00, as well as $50,000.00 for disbursements.