David S. Wilson

The plaintiff sought an assessment of costs after accepting a Rule 49 offer to settle from State Farm Mutual Automobile Insurance Company and Certas Home and Auto Insurance Company, statutory third parties.

The court had previously awarded the plaintiff partial indemnity costs for the tort action but denied costs related to the recovery of statutory accident benefits (SABS) and Canada Pension Plan (CPP) disability benefits.

Both parties sought costs for the assessment motion.

The court found that success was divided, as the plaintiff succeeded on the quantum of legal fees for the tort action and disbursements, but failed on SABS and CPP costs.

State Farm failed to resist the quantum of legal fees.

Given the divided success and the complexity of some issues, the court ordered that each party bear their own costs.

This is a supplementary endorsement to a previous decision, clarifying and varying aspects of a costs award.

The court confirmed that HST is to be added to the partial indemnity costs and disbursements awarded to the plaintiff.

The amount of allowed disbursements was varied by agreement of the parties.

The court also addressed a request for reconsideration regarding the defendant's liability for the plaintiff's legal fees incurred in pursuing accident benefits, reiterating that all submissions and authorities, including the principles from Cadieux v. Cloutier, were considered in the original determination, and no further reconsideration was required on that point.

Following the settlement of a motor vehicle accident tort claim for $85,000, the plaintiff brought a motion to determine costs.

The plaintiff sought partial indemnity costs for the tort action, as well as recovery of substantial legal fees incurred in pursuing statutory accident benefits (SABs) and Canada Pension Plan (CPP) disability benefits.

The court awarded the plaintiff $84,075 in fees and $58,983.63 in disbursements for the tort action, rejecting the statutory third party insurer's argument that its exposure was limited to the $200,000 statutory minimum.

However, the court declined to award costs for the pursuit of SABs, finding the plaintiff failed to address the factors set out in Cadieux v. Cloutier, and denied costs for pursuing CPP benefits as they were not incidental to the proceeding.

Following the resolution of insurance coverage issues and the dismissal of the action against the uninsured motorist carrier, the plaintiffs sought costs thrown away on a substantial indemnity basis.

The plaintiffs argued the tortfeasor's insurer denied coverage for tactical reasons, necessitating a separate action.

The court rejected this argument, finding the insurer's denial of coverage due to lack of cooperation from its insured was reasonable.

The court awarded the plaintiffs partial indemnity costs of $3,500 plus $500 in disbursements for the extra discovery steps required, payable in the cause.

This appeal addressed the scope of expert disclosure required from a defendant at the discovery stage, specifically concerning foundational documents like letters of instruction, after a Rule 53.03 compliant expert report has been served but before a decision to call the expert at trial has been made.

The Master had ordered disclosure, finding an implied waiver of litigation privilege.

The Superior Court allowed the appeal, holding that serving a Rule 53.03 report does not automatically waive litigation privilege over foundational documents at the discovery stage, distinguishing cases where experts are confirmed to testify at trial.

The court emphasized that privilege continues unless there is a reasonable suspicion of improper influence or specific rules mandate disclosure.

This endorsement concerns the determination of costs following a settlement of a tort action for $200,000.

The plaintiff sought $190,605.74 in costs, including fees for accident benefit arbitration.

The court fixed costs at $145,605.75, reducing the tort claim costs due to proportionality and allowing a portion of accident benefit legal costs to be recovered from the tort defendant, as the defendant benefited from the plaintiff's efforts in securing those benefits.

The court also rejected the defendant's argument to limit costs based on an earlier Rule 49 offer, finding the settlement agreement for costs was unrestricted.

The defendant, RBC General Insurance Company, sought leave to bring a motion for summary judgment under Rule 48.04 after the action was set down for trial.

The plaintiff, Lourdes Prabaharan (Boniface), opposed the motion.

The defendant aimed to determine if the plaintiff's damages were covered under OPCF-44R, which requires corroborative evidence for claims involving an unidentified automobile, potentially limiting coverage from $1 million to $200,000.

The court applied the considerations from *Dickson v. Di Michele* regarding leave to bring a motion post-trial list, focusing on whether it would be just, expeditious, and proportionate.

The court found that even if successful, the motion would not extinguish the need for a trial, and there was no explanation for the delay in bringing the motion earlier.

The court dismissed the defendant's motion for leave, finding it would not secure a just, most expeditious, and least expensive determination.

This endorsement addresses costs arising from an adjourned motion brought by the defendants for additional defence medical examinations.

The court found that the defendants brought the motion late in the action, close to the deadline for expert reports and the pre-trial conference, leading to procedural issues and the adjournment of the motion.

Consequently, the plaintiffs incurred costs thrown away for two hearing dates.

The court exercised its discretion under the Courts of Justice Act to fix costs in favour of the plaintiffs, declining substantial indemnity but awarding partial indemnity due to the defendants' conduct.

The plaintiff, whose claim for statutory accident benefits was denied by the defendant insurer, proceeded through mediation and arbitration.

After the arbitrator issued a decision, the plaintiff commenced a civil action for punitive and general damages, alleging bad faith, negligence, and breaches of the Human Rights Code in the handling of his claim.

The defendant moved for summary judgment to dismiss the action.

The court granted the motion, holding that the plaintiff's claims were "in respect of" entitlement to statutory accident benefits and thus subject to the mandatory dispute resolution scheme of the Insurance Act.

The court found the action barred because the plaintiff had elected arbitration to its conclusion, and the two-year limitation period had expired, with neither the discoverability principle nor the doctrine of special circumstances applying.

Furthermore, the Human Rights Code allegations were struck as disclosing no reasonable cause of action for events predating the relevant statutory amendment.

The plaintiff's employment was terminated, which immediately ended his long-term disability (LTD) coverage under the employer's group policy.

Two months later, he became totally disabled in a motor vehicle accident.

The employer inadvertently continued paying LTD premiums, and the insurer initially denied the claim based on lack of total disability and late filing, while reserving the right to investigate eligibility.

The plaintiff argued the insurer waived the termination date of the policy.

The court dismissed the action, finding no waiver because the insurer lacked full knowledge of the termination and did not unequivocally intend to relinquish its right to rely on the policy's termination clause.

Costs decision following litigation between the applicant and multiple respondents in a commercial dispute.

The court considered the discretionary factors under Rule 57 of the Rules of Civil Procedure, including proportionality, complexity, and the reasonable expectations of the unsuccessful party.

Although the matter was not factually or legally complex, it was important to the litigants.

The court found that one respondent had been more successful than the applicant.

Costs were fixed at $30,000 inclusive of taxes and disbursements, payable partly immediately and partly upon the sale of property.

The applicant sought an oppression remedy under s. 248 of the Ontario Business Corporations Act arising from a dispute between brothers who each owned 50% of a family produce business.

The applicant alleged the responding shareholder operated the company for the benefit of himself and his family, including alleged undisclosed cash transactions, misuse of company assets, and failure to provide financial disclosure.

The court held that the applicant failed to establish reasonable expectations necessary to ground an oppression claim.

The evidence did not demonstrate oppressive, unfairly prejudicial, or unfairly disregarding conduct within the meaning of the statute.

While the oppression remedy was dismissed, the court ordered the sale of the jointly owned property where the business operated under specified terms pursuant to the Partition Act.

Following the settlement of a motor vehicle accident claim on the eve of trial, the court was asked to approve the settlement of a Family Law Act claim for a party under a disability and to fix costs.

The court approved the FLA settlement at $30,000 plus interest.

On the issue of costs, the court held that the plaintiff was entitled to claim time spent recovering accident benefits as part of the tort action costs, as the two are inextricably linked.

The court fixed the plaintiff's costs at $100,000 for fees and $44,534.29 for disbursements on a partial indemnity basis, and awarded interest on the delayed settlement funds.

The defendants brought a motion seeking an order for the plaintiff to attend additional defence medical examinations and to strike the impending trial date.

The plaintiffs raised a preliminary objection that the defendants required leave under Rule 48.04(1) because the action had been set down for trial.

The court dismissed the preliminary objection, finding the defendants had not consented to the action being placed on the trial list.

On the substantive issue, the court dismissed the motion for further medical examinations, holding that the defendants failed to provide sufficient medical or factual evidence to justify the request under Rule 33.02(2) and the Bonello principles.

Following a jury trial involving two related actions, the court addressed the issue of costs.

The court held that the same cost considerations applied to both plaintiffs in the related proceedings.

As a result, the plaintiff in this action was ordered to pay costs to the defendants.

The court fixed the costs payable at $35,000.