Ian D. Kirby

This costs endorsement addresses the appropriate scale and quantum of costs following a jury trial in a fatal motor vehicle accident case.

The court reviews the application of the Victims’ Bill of Rights, the reasonableness of the costs claimed, the effect of contingency fee agreements, and the impact of offers to settle.

Substantial indemnity costs are awarded throughout, reduced by 5% for contributory negligence, resulting in a total award of $490,368.86 to the plaintiffs.

The plaintiff was struck on the head by a bocce ball thrown by the defendant Goulet while seated on the outdoor patio of the defendant restaurant (Local).

The plaintiff suffered a mild traumatic brain injury resulting in chronic headaches, fatigue, and cognitive deficits.

The plaintiff settled with the restaurant via a Pierringer Agreement prior to trial.

At trial, Goulet argued the restaurant was contributorily liable for failing to erect a barrier or post warning signs.

The court found Goulet 100% liable, concluding that while the restaurant failed to post a warning sign, this breach did not cause the injury as Goulet knew throwing the ball was dangerous.

The court awarded the plaintiff general damages of $125,000, plus past and future loss of income, future care costs, and out-of-pocket expenses.

The Applicant father brought a motion seeking the return of their one-year-old daughter to Trenton, Ontario, and primary residence or a shared parenting arrangement.

The Respondent mother brought a cross-motion seeking primary residence in Vankleek Hill, Ontario, following her unilateral relocation.

The court, applying the Children's Law Reform Act and principles of interim mobility, found the mother's relocation self-serving and not in the child's best interests, noting her non-compliance with statutory notice requirements.

The court ordered the child's residency to be established within 50 km of Trenton, Ontario, and implemented an interim 2/2/3 parenting schedule.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

The defendants brought a Rule 21.01(1)(b) motion to strike a conspiracy claim from a statement of claim alleging fraudulent Statutory Accident Benefits Schedule (SAB) insurance claims.

The plaintiff insurer alleged that the defendants conspired to submit fraudulent invoices for treatment services not rendered and sought damages arising from the payments made.

The court applied the doctrine of merger, holding that where a plaintiff pleads that defendants conspired to commit a fraud and also carried out that fraud, the conspiracy claim merges with the tort of fraud and becomes redundant.

Because the damages alleged were solely attributable to the fraud and not to a stand-alone conspiracy, the conspiracy claim disclosed no independent cause of action.

The conspiracy pleading was struck with leave to amend the claim to clarify that the allegations are grounded in fraud.

The applicant insurer appealed an arbitrator’s decision interpreting the phrase “gross vehicle weight” in Ontario Regulation 664 under the Insurance Act for purposes of the statutory accident benefits loss transfer scheme.

The arbitrator held that “gross vehicle weight” referred to the manufacturer’s capacity weight of the vehicle rather than its actual weight at the time of the accident.

The court reviewed the interpretation on a correctness standard and examined statutory context and prior authority, including Royal Insurance Co. v. Wawanesa Mutual Insurance Co. The court concluded that the term refers to the actual combined weight of the vehicle and load rather than the vehicle’s rated capacity.

The arbitrator erred in law by failing to follow binding authority and by adopting the capacity-weight approach.

Following dismissal of a summary judgment motion brought by a co-defendant seeking to dismiss the plaintiffs’ claim and a cross-claim, the court addressed costs between the co-defendants.

The responding insurer sought partial-indemnity costs exceeding $13,000 after successfully opposing the motion, arguing the matter involved moderate complexity and significant financial exposure under the Insurance Act.

The moving defendant argued the costs were excessive and should either be reduced or made payable in the cause, particularly given the prematurity of the summary judgment motion and issues surrounding the insurer’s standing.

The court held that the insurer was entitled to costs as the successful party but reduced the amount claimed, finding the requested sum excessive in the circumstances.

Costs were fixed at $6,750 payable by the moving defendant.

Following an assessment hearing relating to costs, the court considered written submissions from the parties regarding entitlement to costs of the assessment proceeding itself.

The moving party argued that costs should be awarded because participation in the hearing was necessary to quantify the costs previously awarded.

The responding party argued that the amounts claimed had been substantially reduced during the assessment.

The court concluded that success was divided and that it was appropriate for each party to bear its own costs.

Following a successful trial in an accident benefits dispute, the parties were unable to agree on the quantum of trial costs after the Court of Appeal permitted submissions on the issue.

The plaintiff sought nearly $297,000 in legal fees plus significant disbursements, including expert accounts with high compound interest.

The court held that the interest component of the damages under the Statutory Accident Benefits Schedule did not justify treating the litigation as a $500,000 case for costs purposes.

The hourly rates claimed by plaintiff’s counsel were reduced and significant reductions were made to the claimed fees and certain disbursements.

The court fixed partial indemnity fees at $170,000 plus GST and disallowed interest claimed on expert disbursements.

The defendant dealership moved for summary judgment to dismiss the plaintiffs' personal injury claim and the co-defendant insurer's cross-claim, arguing that the driver's prior criminal conviction for taking the vehicle without consent conclusively established a lack of consent.

The co-defendant insurer opposed the motion.

The court dismissed the motion, finding that the criminal conviction did not have preclusive effect because the driver faced little jeopardy and there was no robust examination of the facts.

The court also held that the insurer had standing to oppose the motion and maintain its cross-claim despite not yet having indemnified the plaintiffs, in order to avoid a multiplicity of proceedings.

Following the dismissal of a motion seeking leave to appeal an earlier order to the Divisional Court, the successful defendant sought costs.

The defendant claimed $4,470.10 on a partial indemnity basis, including fees and disbursements, while the plaintiff proposed an award of $2,000.

Applying the relevant factors under the Rules governing costs, the court found that the docketed hours appeared somewhat excessive and noted that certain claimed disbursements, including a car rental, were inappropriate.

The court exercised its discretion to fix costs in a reduced lump sum amount.