COURT OF APPEAL FOR ONTARIO
RE:
ADELIA PEREIRA (Plaintiff/Respondent) – and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)
AND RE:
HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)
AND RE:
DOCKET: C40458
RE:
FRANK MAZZA (Plaintiff/Respondent) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)
AND RE:
HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) –and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)
AND RE:
DOCKET: C40459
RE:
1018202 ONTARIO LIMITED, BRIAN FITZPATRICK and NINA FITZPATRICK (Plaintiffs/Respondents) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)
AND RE:
HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) –and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)
AND RE:
DOCKET: C42372
RE:
FRANK MAZZA (Plaintiff/Appellant) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Respondent)
AND RE:
HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Respondent) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Appellant)
AND RE:
DOCKET C42373
RE:
1018202 ONTARIO LIMITED, BRIAN FITZPATRICK and NINA FITZPATRICK (Plaintiffs/Appellants) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Respondent)
AND RE:
HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Respondent) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Appellant)
BEFORE:
DOHERTY, BORINS and LAFORME JJ.A.
COUNSEL:
Earl A. Cherniak Q.C., Kirk F. Stevens
for Hamilton Township Farmers’ Mutual Fire Insurance Company
Alfred M. Kwinter and Jason D. Singer for Adelia Pereira, Frank Mazza,
1018202 Ontario Limited,
Brian Fitzpatrick and Nina Fitzpatrick
HEARD:
October 19 and 20, 2005
On appeal from the judgment of Justice C. Anne Tucker of the Superior Court of Justice dated July 16, 2003, sitting with a jury.
C O S T S E N D O R S E M E N T
1The successful appellant, Hamilton Township Farmers’ Mutual Fire Insurance Company, has submitted a bill of costs on a partial indemnity basis in the amount of $171,943.31 for total fees, disbursements and GST.
2As the insurer was largely successful, it is entitled to some portion of its costs. The finding of liability was set aside and even if the insurer is found liable on a retrial, its exposure will be significantly lower given our decision on loss of profit and punitive damages. However, there are two reasons why we believe that there should be a significant reduction in the fess claimed.
3Although this appeal involved more preparation than the average appeal given the very long trial record that raised several legal issues that had to be thoroughly reviewed and mastered by appellate counsel, the legal issues were not complex, nor were the factual issues. However, the four months spent in preparation by the junior lawyers and the law clerk were excessive.
4We also think that the costs claimed should be reduced significantly because of the failure of the insurer’s trial counsel to raise the issues on which the insurer succeeded on the liability appeal. While some cases have used the failure of trial counsel to object as a basis for denying any costs, we believe that in this case it would be appropriate to reduce the costs claimed, exclusive of disbursements, by two thirds. The reduction applies to the total fees claimed, but not to disbursements.
5We would, therefore, fix costs at $50,000 plus GST, together with disbursements of $10,000 plus GST.
“Doherty J.A.”
“S. Borins J.A.”
“H. S. LaForme J.A.”