Court File and Parties

COURT FILE NO.: CV-17-00000200-0000 DATE: 2020 Feb 28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BRANDON LAMBERT, by his Litigation Guardian DIANE LAMBERT, DIANE LAMBERT and JORDON LAMBERT Plaintiffs (Moving Parties) – and – MICHAEL MARACLE, JAMIE WALKER, ASHLEY KELSEY and AVIVA INSURANCE COMPANY OF CANADA, incorrectly named as AVIVA CANADA INC. Defendants

Counsel: John W. Wowk, for the Plaintiffs / Moving Parties Robert K. McCartney, for the Defendant, Aviva Insurance Company of Canada, incorrectly named as Aviva Canada Inc. Defendants, Michael Maracle, Jamie Walker and Ashley Kelsey, not appearing

HEARD at Belleville: February 13, 2020

MACLEOD-BELIVEAU j.

COSTS DECISION

[1] This costs decision relates to the motion heard by me on November 26, 2019 in Lambert v. Maracle, 2019 ONSC 7003 to determine the order of examination for discovery. The plaintiffs were entirely successful on the motion. Costs were reserved.

[2] Submissions on costs were made by the filing of written material in advance of the hearing date together with oral submissions on the record by telephone conference call on February 13, 2020 to minimize expense to the parties. Plaintiffs’ counsel is based in New Liskeard, Ontario. Defendants’ counsel is based in Toronto, Ontario. The plaintiffs live in the general Belleville area.

[3] The plaintiffs seek substantial indemnity costs of $9,172.50 in fees inclusive of HST plus disbursements of $1,004.55 inclusive of HST for a total amount of $10,177.05. On a partial indemnity basis, the costs sought by the plaintiffs are $6,602.50 in fees inclusive of HST plus disbursements of $1,004.55 inclusive of HST for a total amount of $7,607.05.

Result

[4] The scale of costs shall be on a substantial indemnity basis. Travel time is allowed at 50% of plaintiffs’ counsel’s hourly rate. Disbursements for mileage and hotel, photocopying and courier are allowed as claimed.

[5] In the result, in the exercise of my discretion, I find a fair and reasonable amount of substantial indemnity costs to be paid by the defendants to the plaintiffs in this matter is $10,000.00 for fees and disbursements, inclusive of HST payable within 30 days. This amount, I find, is consistent with what an unsuccessful litigant could expect to pay in all the circumstances of this particular case, and I find is fair and reasonable.

The Parties’ Positions

[6] The plaintiffs’ position is that substantial indemnity costs are clearly warranted and should be ordered in this case. The plaintiffs submit that the motion was of importance as it concerned the fair and fulsome disclosure required in an affidavit of documents by the defendant insurance company. The defendants had served an improper affidavit of documents with full knowledge that there were important Schedule B witness statements. Other documents were not disclosed in Schedule A. The insurance company delayed serving their sworn affidavit of documents for approximately two years as a tactic to try and claim priority in examinations for discovery.

[7] The plaintiffs submit that the defendants’ recent amended further affidavit of documents sworn December 12, 2019 is not in compliance with the Rules or my order as it still fails to represent fair and fulsome disclosure by the defendants. The amended affidavit of documents continues to not disclose the names of witnesses. Names of witnesses are typically listed in Schedule B by experienced counsel as the information is required to be disclosed, albeit at oral discovery. Most affidavit of documents list the author and the recipient. The issue of whether the amended affidavit of documents served by Aviva is in compliance with the Rules, and my order, is not however before me, and would have to be the subject matter of a new motion to be fully argued.

[8] The defendants’ position is that an award of partial indemnity costs against them is the appropriate order, provided it does not include any travel time and/or mileage claimed, or any hotel costs incurred as a result of plaintiffs’ counsel attending court in Belleville from New Liskeard to argue the motion on November 26, 2019. The defendants additionally object to any photocopying or courier fees being ordered to be reimbursed as being overhead expenses. The amount submitted by the defendants to be reasonable on a partial indemnity basis is fees of $4,240.00 inclusive of HST plus $320.00 in disbursements paid to file the motion, for a total amount of costs assessed on a partial indemnity basis to be paid by the defendants of $4,560.00.

Scale of Costs to be Awarded - Substantial Indemnity or Partial Indemnity

[9] The costs of any step in a proceeding, including a motion, are in the discretion of the court as provided in section 131(1) of the Courts of Justice Act.

[10] Rule 57.01(1) of the Rules of Civil Procedure sets out the general principles in awarding costs and lists the factors to be considered in the discretion of the court. I have carefully considered all the factors as set out in Rule 57.01(1), together with the principle of proportionality in awarding costs within the context of the factual background of this case, the conduct of the litigation and the findings made, the results achieved on the motion by the plaintiffs, and what an unsuccessful litigant would expect to pay in all the circumstances, within the overriding principles of reasonableness and fairness.

[11] In my decision on this motion, I made a clear finding that the defendants’ affidavit of documents was inappropriate and deficient, importantly both at the time it was sworn and at the time is was eventually served. On both the date the affidavit of documents was sworn and the date it was served, the defendant Aviva did not comply with the most basic of discovery rules which is to provide all relevant documents in Aviva’s possession, control or power.

[12] I further found that this was done for a tactical purpose to be able to examine for discovery first in a case where liability is a seriously contested issue, and where the plaintiff has suffered brain injuries and has no memory of the accident. The affidavit of documents was sworn under oath by the Vice President and Chief Litigation Counsel of Legal at Aviva Insurance Company of Canada.

[13] This tactic of swearing and serving an inappropriate and deficient affidavit of documents must be clearly condemned by the court as being completely inappropriate. Lack of disclosure of documents strikes at the very foundation of the integrity of our civil litigation justice system designed to ensure parties have all the relevant evidence in relation to their case at an early stage in the proceedings.

[14] The amended affidavit of documents confirms that Aviva had documents in their possession that they did not disclose when they were required to do so. This amplifies the fact that non-compliance with the rules was not a simple oversight but part of the deliberate tactic to achieve an end result, regardless of what was legally required.

[15] In all of the circumstances of this case, I find a substantial indemnity costs award is necessary to reflect the court’s admonishment of the tactics used by Aviva in this case, and to reflect the seriousness and the importance that this court places on proper document disclosure in an affidavit of documents to ensure due process of matters before the court.

[16] This case is exceptional on its facts and I intend the scale of costs to be a form of chastisement for the conduct of the defendant Aviva in relation to its affidavit of documents sworn and filed before the court which were the subject matter of this motion.

[17] I find that the appropriate scale of costs awarded shall be on a substantial indemnity basis.

Travel Time

[18] Plaintiffs’ counsel claims total travel time of $3,037.50 on a substantial indemnity basis and $2,362.50 on a partial indemnity basis for his travel time from New Liskeard to Belleville and return. These sums are included in the total time claimed for fees as set out in paragraph [3] above. The driving time is claimed for 13.5 hours at 50% of plaintiff’s counsel’s hourly rate. I find both the travel time spent and the hourly rates claimed are reasonable and not inflated in any way.

[19] The case law and court decisions on travel time and disbursements have not been unanimous, particularly as to the rate to be used, if any, for travel time by counsel. I find that the weight of authority, however, clearly favours a 50% reduction in counsel’s hourly rate for travel which is what the plaintiffs’ counsel has claimed.

[20] If litigants are to have confidence in the court’s role of adjudicating disputes between citizens, the courts must respect a litigant’s choice of counsel as not being necessarily limited by the proximity of that counsel’s place of business to the court house where the litigation is being pursued.

[21] Costs awards, I find, need to recognize this important fact, and make reasonable assessments of travel time spent and disbursements made in the overall exercise of the court’s discretion in an award of costs appropriate to the specific circumstances of each case.

[22] The defendants had ample opportunity to consider their position and resolve the issue of the order of discovery without the hearing of the motion and were aware plaintiffs’ counsel was travelling from either his New Liskeard or Timmins office and the potential of a travel time claim if the plaintiffs were successful on the motion.

Reasonable Disbursements

[23] The plaintiff claims total disbursements of $1,004.55, all of which I find to be completely reasonable. The disbursements are broken down as follows:

a. Mileage to Belleville $386.40 b. Hotel costs (night before motion) $141.25 c. Photocopying $97.50 d. Paid to file motion $320.00 e. Purolator $59.40

[24] I do not agree with the defendants’ submission that these disbursements should be disallowed as being part of plaintiffs’ counsel’s overhead. The disbursements incurred were as a direct result of the defendants’ refusal to concede the issue that it did not have the right to examine for discovery first. The disbursements, I find, are reasonable and are allowed and assessed as claimed.

Order Made

[25] The total amount claimed by the plaintiffs on a substantial indemnity basis, including travel time at 50% of the hourly rate, is $10,177.05.

[26] In the result, in the exercise of my discretion, I find a fair and reasonable amount of substantial indemnity costs to be paid by the defendants to the plaintiffs in this matter is $10,000.00 for fees and disbursements, inclusive of HST payable within 30 days. This amount, I find, is consistent with what an unsuccessful litigant could expect to pay in all the circumstances of this particular case, and I find is fair and reasonable.

[27] Order to go accordingly.

Madam Justice H. MacLeod-Beliveau

Released: February 28, 2020