Court File and Parties

COURT FILE NO.: 111/07

DATE: 20080624

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: MARIO ZEITOUN, ALBA ZEITOUN, EDMUND FARRAGE, Litigation Guardian for Sammy Zeitoun, SAMMER ZEITOUN and HANNAH ZEITOUN (Plaintiffs/Respondents) v. THE ECONOMICAL INSURANCE GROUP (Defendant/Appellant)

BEFORE: LEDERMAN, SWINTON, LOW JJ.

COUNSEL: Bryan D. Rumble, for the Plaintiff/Respondent

David Zuber, for the Defendant/Appellant

C O S T S E N D O R S E M E N T

[1] We have received costs submissions in writing.

[2] The Economical Insurance Group seeks a total of $38,285.86 for the four appearances relative to the matter: its motion before the master, the plaintiff's appeal to the motions judge, its motion for leave to appeal to the Divisional Court and its successful appeal.

[3] The plaintiff argues that the court should depart from the norm that costs follow the event and that they should be awarded in the cause. He also argues that if costs are to follow the event, it would be unduly harsh and punitive to order that costs be payable forthwith.

[4] This was initially a motion for security for costs. Neither impecuniosity nor a good case on the merits was disclosed. The motion was properly brought and properly granted and could have been avoided had the plaintiff agreed to post security. In the circumstances, there are no facts militating against the usual "pay as you go" costs order. This would apply with respect both to the motion to the master and on the appeal to the motions judge.

[5] The situation vis-à-vis the motion for leave to appeal and the appeal are slightly different. They arise out of a state of the jurisprudence over which the plaintiff had no control. That being said, however, we would observe that whether or not the determination of the "de novo" issue had been resolved in favour of the defendant in this court, the result of the appeal would not have changed – it would have been allowed. On that basis, there is no compelling reason why costs should not follow the event.

[6] The amount sought of $38,285.86 is, however, excessive.

[7] First, with respect to the motion to the master and the appeal therefrom to the motions judge, counsel for the plaintiff points out that the motions judge fixed costs of the two motions in the aggregate amount of $5,000 plus disbursements of $2,079.25 in favour of the plaintiffs who were successful before him. That was a reasonable award of costs for those proceedings for the plaintiff and, in our view, the award of costs to the defendant should be in like amount. The degree of difficulty and complexity was no greater. We would therefore allow the defendant costs of $5,000 on the motion to the master and the appeal therefrom, together with its disbursements of $187.95 and $173.29.

[8] While the defendant was wholly successful on the motion for leave to appeal and the appeal to this court, we are mindful that the plaintiff ought not to bear the full brunt of the costs of the result given the state of the relevant jurisprudence.

[9] For that reason, we would award costs of the motion for leave and of the appeal in the aggregate amount of $5,000 inclusive of disbursements.

[10] The final issue is the question of when the costs should be payable. It is suggested on behalf of the plaintiff that the costs be made payable in any event of the cause. In our view, there is greater force in that argument in respect of the costs of the leave to appeal and the appeal than with respect to the motion to the master and appeal therefrom to the motions judge. Accordingly, the costs of the motion to the master and the appeal to the motions judge totalling $5,361.24 are payable in 60 days, and the costs of the leave to appeal and the appeal to the Divisional Court in the aggregate amount of $5,000 are payable in any event of the cause.

Low J.

Lederman J.

Swinton J.

DATE: June 24, 2008