CITATION: Kaur v. Ferri, 2012 ONSC 6906

DIVISIONAL COURT FILE NO.: CV-09-390562

DATE: 20121205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BRAR PRIPTAL KAUR, Plaintiff

AND:

FELICE FERRI, AMIT SAHDEV and THE CORPORATION OF THE CITY OF MISSISSAUGA, Defendants

BEFORE: J. WILSON J.

COUNSEL: TAJINDER GOGNA, for the Plaintiff

DAVID G. BOGHOSIAN, for the Defendants, The Corporation of the City of Mississauga and Amit Sahdev

JOSEPH LIN for the Defendant, Felice Ferri

HEARD: December 4, 2012

ENDORSEMENT

The motion

[1] On consent, it is agreed that an order shall issue dismissing all actions by and against The Corporation of the City of Mississauga (Mississauga) and Amit Sahdev.

[2] The only issue in this motion for summary judgment is the request of costs by Mississauga against the insurer for the defendant, Felice Ferri. Prior to today, Mississauga also sought costs against the plaintiff, who was required to file materials and to attend today with counsel.

The accident

[3] The plaintiff was rear-ended in a motor vehicle accident by the defendant Ferri on January 15, 2009. At some point, either before or after the collision, Ferri’s vehicle ricocheted off a Mississauga bus driven by the defendant Amit Sahdev.

The lawsuit

[4] In this action, the plaintiff quite properly sued all defendants including Ferri, Mississauga, and the driver. Counsel for Mississauga conceded that it was reasonable for the plaintiff to sue Mississauga and the driver.

[5] A brief discovery of the defendants Ferri and Sahdev, lasting one half day in total, took place on November 3, 2010.

[6] At the conclusion of the discovery of the defendants Ferri and Sahdev, counsel for the plaintiff agreed to dismiss the action against Mississauga and the driver Sahdev without costs so long as the insurer for Ferri admitted liability.

[7] After the discovery, counsel for Ferri agreed to admit liability and recommended dismissal of the action against Mississauga and Sadhev, without costs. The insurer gave Ferri instructions to consent to the dismissal of the action against Mississauga and Sadhev without costs and this was confirmed in December 2010. This is usual, standard practice.

[8] Mississauga has insisted on their right to costs from both the plaintiff and the defendant Ferri.

[9] Some two years later, the issue of costs is still being pursued by Mississauga, resulting in a motion scheduled for two hours involving quite an extensive motion record including the cross-examination of the adjuster handling the Ferri file.

Conclusions

[10] Counsel for Mississauga argues that Mississauga and Sahdev should have been let out of the file before the discoveries took place, and that Ferri should have admitted 100% liability before the discoveries. I disagree.

[11] I conclude as follows:

• It was reasonable and necessary for the plaintiff to sue the driver of the Mississauga bus that was involved in the accident, as well as the City of Mississauga. Counsel for the plaintiff quite properly wanted to ensure that the bus driver was operating the bus in a proper manner, and that it was in appropriate mechanical condition.

• Further, it was reasonable for the defendant Ferri to refuse to acknowledge 100% responsibility for the accident in the circumstances of this case until after the brief discovery with sworn statements from the parties. As the adjuster confirmed, until the discoveries, there was very little information in the file, other than the unsworn police report, prepared after the accident.

[12] At the conclusion of the half day discovery in 2010, both counsel promptly conceded that Mississauga and Sahdev should be let out of the action as soon as reasonably possible, without costs. This was reasonable and appropriate.

[13] However, Mississauga has insisted on bringing this motion, with extensive materials and briefs being filed, to pursue a claim for modest costs, some two years after the appropriate concessions were made after the discovery. Counsel suggested in argument that the insurer for Ferri should have agreed to pay a sum of $2000.00 or $3000.00.

[14] Valuable court time and resources have been wasted. As the affidavit of Mr. Zarolia confirms, once the facts are reasonably ascertained as to responsibility for an accident amongst defendants by proceeding to discovery, it is standard or usual practice for insurers to consent to the dismissal of actions brought against non-liable defendants without costs.

[15] This court encourages a reasonable approach amongst co-defendants to resolve these issues following the usual practice, once discovery is completed and the facts are known. Awarding costs is discretionary. In the circumstances of this case, I am not prepared to order costs payable by the defendant Ferri in favour of Mississauga. It was reasonable to proceed to a brief discovery to confirm the facts, then to immediately concede liability. However, by way of balance, I am also not awarding any costs in favour of the defendant Ferri, although successful in this motion.

[16] The situation is different for a plaintiff. Counsel for Mississauga acknowledged at the opening of the motion argument that he was not seeking costs against the plaintiff. He conceded that it was reasonable and appropriate for the plaintiff to sue Mississauga and the bus driver in the circumstances. The plaintiff agreed to let Mississauga and the driver out of the action at the first available opportunity, yet had to file a factum and materials for this motion. In recognition that Mississauga did not make the obvious concession until today, I order costs payable in favour of the plaintiff payable by Mississauga in the amount of $1000.00, inclusive of HST. I note that the bill of costs that the plaintiff had prepared was in excess of $5000.00, which illustrates the futility of Mississauga pursuing this matter.

J. Wilson J.

Date: December 5, 2012