Court of Appeal for Ontario
Between:
CIA Inspection Inc.
Plaintiff (Respondent)
and
Dan Lawrie Insurance Brokers Ltd.
Defendant (Appellant)
Before: O’Connor A.C.J.O., LaForme J.A. and Cunningham A.C.J. (ad hoc)
Counsel:
Mikel C. Pearce, for the defendant (appellant)
William D. Dunlop, for the plaintiff (respondent)
Heard and released orally: November 7, 2011
On appeal from the costs order of Justice Whitten of the Superior Court of Justice dated November 23, 2010.
ENDORSEMENT
1This is an appeal from the costs judgment of Whitten J. dated November 23, 2010, following a 16-day trial.
2The respondent was successful in its action against the appellant insurance brokerage. The damages claimed were in excess of $700,000. In his decision, Whitten J. found the respondent contributorily negligent to the extent of 33 1/3%. He awarded damages in the amount of $218,331.15.
3Following submissions, the trial judge awarded the respondent partial indemnity costs in the amount of $298,681.16.
4The appellant submits that the trial judge erred in principle in that the costs award was “virtually the same” as a substantial indemnity award. They further argue that the trial judge erred in not considering what would be fair and reasonable from the perspective of the appellant and further, that he failed to consider the principle of proportionality.
5The appeal is dismissed. Throughout his reasons, the trial judge averted to the nature of the proceedings and the complexities of the case when considering the reasonable expectations of the parties. He was alive to the requirements of R. 57.01(1) and in particular, R. 57.01(1)(b) when he considered “... the amount of costs that an unsuccessful party would reasonably be expected to pay ...”. While this language did not track precisely the language of the Rule, it included a consideration of the reasonable expectations of the losing party. In any event, there was nothing in the record to suggest that the appellant had a reasonable expectation that differed from the trial judge’s award.
6To award partial indemnity costs in the same amount as substantial indemnity costs can be an error in principle if there is no basis given for doing so. Here, the trial judge carefully explained his reasons for the award. Apart from the complexities of the case, he mentioned the absence of settlement offers, the advocacy skill required and the time spent. In doing so, he distinguished this case from Boucher.
7Finally, while the trial judge did not specifically refer to R. 1.04(1), and while there may be some disproportionality in the amount of costs awarded, the trial judge’s reasons make it clear he had the proportionality principle in mind.
8In summary, no error in principle has been demonstrated in the trial judge’s exercise of his discretion. Deference is owed to a trial judge in these circumstances.
“D. O’Connor A.C.J.O.”
“H.S. LaForme J.A.”
“J.D. Cunningham A.C.J.”
