COURT FILE NO.: CV-12-18610 COURT FILE NO.: CV-13-19389 DATE: 20230215

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

COURT FILE NO.: CV-12-18610 BETTY JO LYNN ALGRA, personally and as Estate Trustee of The Estate of Danny Monteiro, deceased, MARISSA MONTEIRO, SIERRA LYNN LOUISE ALGRA and AUSTIN HANK JAMES ALGRA, all minors, by their Litigation Guardian Betty Jo Lynn Algra Plaintiffs – and – PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, HIS MAJESTY THE KING IN RIGHT OF CANADA, as represented by the Minister of Fisheries and Oceans, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, as represented by the Minister of Transportation for the Province of Ontario, and THE CORPORATION OF THE TOWN OF LEAMINGTON Defendants

Counsel: Myron Shulgan, Q.C. for the Plaintiffs Dallas J. Lee for the Defendant by CounterClaim, The Estate of Danny Monteiro Larry J. Abey for the Defendant, Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie. Joel Levine for the Defendant His Majesty the King in Right of Canada Giovanna Asaro for the Defendant His Majesty the King in Right of Ontario Alex Szalkai for the Defendant The Corporation of the Town of Leamington

AND BETWEEN:

COURT FILE NO.: CV-13-19389 DANIELLE FELTHAM Plaintiff – and – PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, THE ESTATE OF DANNY MONTEIRO, ATTORNEY GENERAL OF CANADA, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, and THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON Defendants

Counsel: Greg Monforton for the Plaintiff Larry Abey for the Defendant, Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie Dallas J. Lee for the Defendant, the Estate of Danny Monteiro Joel Levine for the Defendant Attorney General of Canada Giovanna Asaro for the Defendant His Majesty the King in Right of Ontario Alex Szalkai for the Defendant The Corporation of the Municipality of Leamington

HEARD: Written Submissions

DECISION ON COSTS – SUMMARY JUDGMENT (LIABILITY)

MUNROE J. :

[1] Before me are costs submissions following my ruling on the summary judgment motions arising out of a fatal boating accident. All parties sought summary judgment on liability. There are two separate actions consolidated, on consent, by King J. The plaintiffs were successful against some, but not all, of the defendants.

[2] Plaintiff Betty Jo Lynn Algra (“Algra”) brought the first action individually, in her capacity as Estate Trustee for The Monteiro Estate, and as the Litigation Guardian for the three minor children of her and Monteiro, her common law spouse. She brought this action against The Comrie Estate (“Comrie”) and against three levels of government: His Majesty the King in Right of Canada (“Canada”), His Majesty the King in Right of Ontario (“Ontario”), and The Corporation of the Municipality of Leamington (“Leamington”). Although Algra did not bring an action against the estate of her spouse, Monteiro, The Monteiro Estate (“Monteiro”) was brought into the action by the counterclaims of all four defendants: Comrie, Canada, Ontario, and Leamington. All defendants, as well as the counterclaim defendant, Monteiro, crossclaimed against the others for contribution and indemnity.

[3] The second action was commenced by the plaintiff, Danielle Feltham (“Feltham”), against Comrie, Monteiro, Canada, Ontario, and Leamington. All defendants crossclaimed against the others for contribution and indemnity.

[4] For written reasons released on August 4, 2022, Algra v. Comrie Estate, 2022 ONSC 4539, I granted summary judgment on liability, ruling against the individual defendants, Comrie and Monteiro, and in favour of the government defendants, Canada, Ontario and Leamington. I further apportioned the liability of the individual defendants at 50 percent each.

[5] More particularly, I ordered as follows:

1. In Court File No. CV-12-18610, the Algra plaintiffs’ motion for summary judgment on the liability issues against the defendant, the Estate of Andrew Comrie, is granted; the Estate of Andrew Comrie is liable for the losses caused by the boating accident on June 5, 2011;
2. In Court File No. CV-12-18610, the Algra plaintiffs’ motion for summary judgment on the liability issues against the defendant, Her Majesty the Queen in right of Canada, is dismissed; the motion for summary judgment brought by the defendant, Her Majesty the Queen in right of Canada, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;
3. In Court File No. CV-12-18610, the Algra plaintiffs’ motion for summary judgment on the liability issues against the defendant, Her Majesty the Queen in right of Ontario, is dismissed; the motion for summary judgment brought by the defendant, Her Majesty the Queen in right of Ontario, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;
4. In Court File No. CV-12-18610, the Algra plaintiffs’ motion for summary judgment on the liability issues against the defendant, the Corporation of the Municipality of Leamington, is dismissed; the motion for summary judgment brought by the defendant, the Corporation of the Municipality of Leamington, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;
5. In Court File No. CV-13-19389, the plaintiff Feltham’s motion for summary judgment on the liability issues against the defendants, the Estate of Andrew Comrie and the Estate of Danny Monteiro, is granted; these two defendants are jointly and severally liable for the losses caused by the boating accident on June 5, 2011;
6. In Court File No. CV-13-19389, the plaintiff Feltham’s motion for summary judgment on the liability issues against the defendant, Her Majesty the Queen in right of Canada, is dismissed; the motion for summary judgment brought by the defendant, Her Majesty the Queen in right of Canada, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;
7. In Court File No. CV-13-19389, the plaintiff Feltham’s motion for summary judgment on the liability issues against the defendant, Her Majesty the Queen in right of Ontario, is dismissed; the motion for summary judgment brought by the defendant, Her Majesty the Queen in right of Ontario, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;
8. In Court File No. CV-13-19389, the plaintiff Feltham’s motion for summary judgment on the liability issues against the defendant, the Corporation of the Municipality of Leamington, is dismissed; the motion for summary judgment brought by the defendant, the Corporation of the Municipality of Leamington, in this action is granted; with regard to this defendant, this action and any crossclaims against this defendant are dismissed;

[6] In said reasons, I directed written submissions on costs if the parties were unable to resolve that issue. Written submissions on costs have been filed and reviewed. This is my decision on costs on the motion.

Facts and Overview

[7] Before me were motions and cross-motions for summary judgment. All parties sought summary judgment on liability.

[8] The motions were heard over five days beginning on October 12, 2021.

[9] For the reasons released on August 4, 2022, I granted some motions and denied others. To summarize, the individual defendants, Monteiro and Comrie, were found liable and the government defendants, Canada, Ontario and Leamington, were found not liable.

Law on Costs

General Principles

[10] The awarding of costs is in the discretion of the court. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[11] The normative approach to costs in Ontario is noted in Duca Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5:

[F]irst, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

[12] Rule 57.01(1) provides factors for the court’s consideration in the exercise of its discretion in awarding costs. The factors appropriate for consideration in this matter are as follows:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered …; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party’s denial of or refusal to admit anything that should have been admitted; (i) any other matter relevant to the question of costs.

[13] The principles a court must consider when awarding costs were set out by the Divisional Court in Andersen v. St. Jude Medical Inc. (2006), 264 D.L.R. (4th) 557, 208 O.A.C. 10 (Div. Ct.) (“Andersen”), at para. 22. Said principles were cited, with approval, by the Ontario Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, (“Davies”), at para. 51. These principles are:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1): Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.)], Moon v. Sher (2004), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.)] and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638, [2005] O.J. No. 160 (C.A.).
2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495, 118 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.
3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).
4. The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222, [1998] O.J. No. 2897 (C.A.), at p. 249 O.R.
5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

[14] The overriding principle is reasonableness rather than a purely mathematical exercise: Davies, at para. 52.

Sanderson or Bullock Orders [1]

[15] In an obvious deviation from the normal course, in multiple defendant cases in which the plaintiff succeeds against some, but not all, of the defendants, in certain circumstances a court may order the unsuccessful defendant to pay not only the plaintiff’s costs but also the costs of the successful defendant: Moore (Litigation Guardian of) v. Wienecke, 2008 ONCA 162 (“Moore”), at para. 37.

[16] The purpose of this deviation is to alleviate injustice that can occur in certain circumstances: Moore, at para. 38. As stated by Carthy J.A. in Rooney (Litigation Guardian of) v. Graham, [2001] O.J. No. 1055 (C.A.), 198 D.L.R. (4th) 1 (“Rooney”), at para. 6:

The [rationale] behind both orders is the same. Where the allocation of responsibility is uncertain, usually because of interwoven facts, it is often reasonable to proceed through trial against more than one defendant. In these cases, a Bullock or Sanderson order provides a plaintiff with an appropriate from of relief.

[17] There are two types of orders: a Bullock order directs the unsuccessful defendant to reimburse the plaintiff for the successful defendant’s costs; and a Sanderson order directs the unsuccessful defendant to pay the successful defendant’s costs directly: Moore, at para. 38.

[18] The Moore decision established a two-step test for deviating from the normal course and entering a Sanderson or Bullock order: Moore, at para. 41. The first, or threshold step, asks whether it was reasonable for the plaintiff to sue multiple defendants in the same action: Moore, at para. 41. If the answer to this threshold question is yes, then the court must determine whether it would be fair to shift the costs from the plaintiff to the unsuccessful defendant: Moore, at para. 41.

[19] In the court’s exercise of discretion in determining the answer to the second step, four factors are relevant to consider, but should not be applied mechanically in every case: Moore, at para. 45. They are identified in Moore, at paras. 46 – 50, as follows:

1. whether the defendants tried to shift responsibility onto each other as opposed to concentrating on meeting the plaintiff’s case?
2. whether the unsuccessful defendants caused the successful defendant to be added as a party?
3. whether the actions against the successful defendant and the unsuccessful defendant were independent of each other?
4. whether the plaintiff has the ability to pay?

Application to this Case

Entitlement

[20] There is no reason advanced that the successful parties are not entitled to reasonable costs. I too see none. Accordingly, the successful parties are entitled to reasonable costs.

[21] There are five successful parties: the government defendants – Canada, Ontario, and Leamington, and the two plaintiffs, Algra and Feltham.

[22] All parties agree that the costs awards should be on a partial indemnity basis. No one seeks elevated costs. I agree.

[23] I will first address the quantum of the costs award as to each successful party before turning to the allocation issue, and to the Sanderson order issue.

Quantum of Costs

[24] The following are r. 57.01(1) factors that apply to all.

experience and rates

[25] The hourly rates charged by all counsel were commensurate with their experience at the bar and are reasonable.

amount claimed/amount recovered

[26] The amount claimed millions of dollars in damages. The government defendants were fully successful; they were found not liable at all. As against the government defendants, the recovery was zero.

[27] The plaintiffs were successful against the individual defendants. The summary judgment was on liability only. The damages issue has not been tried.

apportionment of liability

[28] As against the individual defendants, the liability for damages was apportioned at 50 percent each.

complexity of the proceeding

[29] All parties agree that the matter was complex. This was a tragic pleasure boat accident that caused the death of three persons and injuries to two others. The boat crashed into a breakwater at night. In addition to negligence claims against the operator and the owner/master of the vessel, both of whom died in the accident, the plaintiffs claimed liability against three levels of government: Canada – responsible to the navigation lights on the breakwater; Ontario – owner of the breakwater; and Leamington – owner and responsible for the onshore lights. The determination of liability of each was not identical.

importance of the issues

[30] The matter obviously is important to the parties. The matter also has broad importance to the boating public, and to the broader Leamington-area community.

any other relevant matter

[31] Both Monteiro and Comrie challenge the overall amount of the costs sought asserting that the case was significantly enlarged by the plaintiffs’ ultimately unsuccessful pursuit of the government defendants. According to them, it is inappropriate to saddle them with costs inflated by plaintiffs’ quest against other defendants.

[32] I disagree on the facts of this case. Despite claims otherwise, [2] both Comrie and Monteiro counterclaimed against the government defendants and urged the court, both in their written and in their oral submissions, to find all three of the government defendants liable for the accident. In my view, the fact that their counsel concentrated on the liability issues between each other, when counsel for the plaintiffs were concentrating on the liability of the government defendants, shows nothing more than avoiding duplication. They did not abandon their liability claims against the governments. Indeed, toward the end of the oral submissions for each individual defendant, both argued for a liability finding against all three government defendants. Counsel for Comrie argued that the ignored deficient lighting was “by far” the most proximate cause of the accident. Counsel for Monteiro argued that it was unreasonable and actionable for the three governments to fail to act after being on notice of the prior accidents on the breakwater. He added, “It was painfully easy to fix.”

[33] In addition, two of the parties ask me to consider certain offers made. [3] None qualify as r. 49 offers and, therefore, the costs consequences of r. 49.10 do not apply. In addition, because of the context of the summary judgment on liability only, in my view, the offers made are of little assistance to the court in awarding costs.

Affixing Quantum

Canada

[34] Canada seeks costs on a partial indemnity rate of fees of $257,266.90. Canada also seeks its itemized disbursements of $8,980.12. Canada’s total request is $266,247.02. There is no challenge to the reasonableness of this requested award.

[35] Having regard to the factors set out in r. 57.01(1), the principles enunciated in Andersen, and in consideration of all the facts and circumstances of this case, I am of the opinion that a fair and reasonable costs award to Canada (inclusive of tax), is $266,247.02.

Ontario

[36] Ontario seeks costs on a partial indemnity rate of fees of $191,366.74, inclusive of HST. Ontario also seeks its itemized disbursements of $20,417.98, inclusive of HST. Ontario’s total request is $211,784.72. There is no challenge to the reasonableness of this requested award.

[37] In its costs sought, Ontario included fees totalling $954.60 regarding time spent on the r. 21 issue. Ontario never was involved in that motion. Accordingly, I find these costs are unreasonable and deduct them from the amount awarded.

[38] Having regard to the factors set out in r. 57.01(1), the principles enunciated in Andersen, and in consideration of all the facts and circumstances of this case, I am of the opinion that a fair and reasonable costs award to Ontario (inclusive of tax), is $210,830.12.

Leamington

[39] Leamington seeks costs on a partial indemnity rate of fees of $303,156.02, inclusive of HST. Leamington also seeks its itemized disbursements of $41,691.01, inclusive of HST. Leamington’s total request is $344,847.03. There is no challenge to the reasonableness of this requested award.

[40] Having regard to the factors set out in r. 57.01(1), the principles enunciated in Andersen, and in consideration of all the facts and circumstances of this case, I am of the opinion that a fair and reasonable costs award to Leamington (inclusive of tax), is $344,847.03.

Algra

[41] Algra seeks costs on a partial indemnity rate of fees of $466,262.15, inclusive of HST. Algra also seeks her itemized disbursements of $166,712.78, inclusive of HST. Algra’s total request is $632,974.93, less prior costs paid of $25,000, or $607,974.93.

[42] Comrie challenges the reasonableness of this requested award. First, the amount sought greatly exceeds all other costs sought and is significantly higher than what an unsuccessful party could reasonably expect to pay. Second, the conduct of counsel unnecessarily forced the need for an additional senior counsel thereby greatly enlarging the costs. Third, the inclusion of full paralegal time as a disbursement is inappropriate and should not be allowed. Fourth, costs should be reduced as a sanction for counsel’s improper conduct forcing the addition of another senior counsel. All will be addressed.

[43] With regard to the greatly enhanced costs sought in comparison to the four other costs requests, the significant difference is impossible to ignore. This assessment includes my acknowledgement that counsel for Algra obviously took a lead role in this litigation. Even with that acceptance, the amount sought greatly exceeds what an unsuccessful party could reasonably expect to pay.

[44] I agree with Comrie that the conduct of counsel, specifically Mr. Leschied, increased costs. Mr. Leschied, an experienced lawyer, filed a multi-volume document he entitled as his affidavit while he was counsel in the case. This functionally forced him off arguing the summary judgment motions thus making it necessary to add another lawyer. This, in turn, forced “catch-up” time by the new lawyer as well as by the instructing lawyer. Then both participated in oral submissions. All of this added time would have been unnecessary if Mr. Leschied had not filed his own affidavit. I agree, this was wasted time. I wholly disagree with Mr. Leschied’s assertion that his conduct “streamlined” this case. [4]

[45] With regard to including full paralegal time as a disbursement, I agree this is inappropriate. It should be included in lawyer time at a partial indemnity rate.

[46] Finally, with regard to a sanction reduction for the conduct of counsel, I disagree. In this case, the sin of the lawyer should not be foisted upon the client.

[47] Having regard to the factors set out in r. 57.01(1), the principles enunciated in Andersen, and in consideration of all the facts and circumstances of this case including those reviewed above, I am of the opinion that a fair and reasonable costs award to Algra (inclusive of tax), is $400,000.00.

Feltham

[48] Feltham seeks costs on a partial indemnity rate of fees of $252,129.15, inclusive of HST. Feltham also seeks her itemized disbursements of $54,711.08, inclusive of HST. Feltham’s total request is $306,840.23. The parties have advanced no challenge to the reasonableness of this requested award.

[49] Having regard to the factors set out in r. 57.01(1), the principles enunciated in Andersen, and in consideration of all the facts and circumstances of this case, I am of the opinion that a fair and reasonable costs award to Feltham (inclusive of tax), is $306,849.23.

Allocation of Costs

[50] With regard to the unsuccessful defendants, Monteiro and Comrie, and the successful plaintiffs, Algra and Feltham, Monteiro and Comrie were found to be solely liable for the accident on a 50 percent each basis. Algra did not sue Monteiro and, therefore, Algra is not entitled to costs from Monteiro. Algra did sue Feltham, and Feltham counterclaimed against Monteiro. In keeping with the principle of indemnity of the successful plaintiffs, the costs awarded to Feltham from Monteiro and Comrie shall be joint and several.

Sanderson or Bullock Order

[51] The plaintiffs, the losing party with regard to the government defendants, ask this court to make a Sanderson or Bullock order directing the losing defendants, Comrie and Monteiro, to pay the plaintiffs’ costs to the government defendants.

I will follow the two-step test of Moore.

Threshold: Reasonable to Sue Multiple Defendants

[52] The first and threshold step asks whether it was reasonable for the plaintiffs to sue multiple defendants in the same action: Moore, at para. 41.

[53] The lawsuits were negligence actions arising out of the same fatal boating accident. A vessel carrying three persons struck a breakwater at night outside Leamington’s harbour. Three people died in the accident: the owner of the vessel (Monteiro), the operator of the vessel (Comrie), and a non-party passenger. The two surviving passengers (Algra and Feltham) brought actions against the estates of the owner and the operator [5] and against three levels of government: Canada (responsible for the navigation lights on the breakwater), Ontario (owner of the breakwater), and Leamington (owner/operator of harbour lights). The plaintiffs alleged that all of the five named defendants were jointly and severally liable for the injuries and losses to the plaintiffs caused as a result of their negligence.

[54] In my decision on liability, I found none of the three government defendants were liable. But the question now before me is not to be determined in hindsight. Rather, I must determine whether it was reasonable for the plaintiffs to sue the government defendants in the same action. I find that it was. Important to my conclusion is the fact that there were no living eyewitnesses to the accident. Only Comrie and Monteiro were in a position to see the events immediately preceding the crash into the breakwater and both died in the accident. Algra and Feltham were in the backseat and did not see the accident. There were no independent observers. As a consequence, what happened and why were live issues. In addition, there were multiple prior nighttime boating accidents on the same breakwater generating expressed concerns as well as pre and post crash investigations. In my view, it was entirely reasonable for the plaintiffs to have sued the government defendants as well as the individual defendants in the same action.

[55] Finding the reasonableness of adding the government defendants to the same action as the individual defendants, the court must determine whether it would be fair to shift the costs from the plaintiffs to the unsuccessful defendants: Moore, at para. 41. I now review the four factors relevant for this consideration: Moore, at paras. 45 – 50.

Blame Shifting

[56] Despite efforts by both Comrie and Monteiro to minimize their efforts to shift blame to the government defendants, as detailed above, they did just that. From the pleading stage to submissions on the summary judgment motions, both Comrie and Monteiro sought to shift blame to the government defendants.

Cause of Adding as Party

[57] Neither Comrie nor Monteiro caused the government defendants to be added as parties. The plaintiffs named the government defendants in their original statements of claim.

Independent Actions

[58] The actions against the successful defendants and the unsuccessful defendants were not independent of each other.

Ability to Pay

[59] Noting the severity of their injuries and the statutorily capped recovery, the plaintiffs assert that this factor should be considered.

[60] Monteiro and Comrie assert that with the ultimate judgment and the costs awards, the plaintiffs will have the ability to pay the government defendants’ costs awards. In addition, Comrie asserts the ability to pay should not be considered, citing Lacroix v. Nanaimo Regional General Hospital, 2000 BCSC 384 (“Lacroix”), at paras. 29 – 31.

[61] I decline to follow the Lacroix decision. It is not binding nor is it persuasive in the circumstances of this case. Importantly, the decision does not concern a Sanderson or Bullock order. Moreover, our Court of Appeal in Moore, at para. 50, specifically acknowledged that some cases do consider this factor.

[62] I agree with the plaintiffs’ position on this issue but am unable to accord this factor much weight because I have no evidence of the plaintiffs’ financial positions.

Finding

[63] In consideration of all the circumstances, including the four Moore factors, I adopt and paraphrase the conclusion in Rooney, at para. 17: fairness dictates that the parties found to be responsible pay for the consequences of their negligent conduct which includes the consequences of being part of the action to determine who, in fact, was responsible for the accident.

[64] I award a Sanderson order for the payment by the individual defendants of the costs of the government defendants.

Conclusion

[65] For the reasons above, this court orders as follows:

1. In Court File No. CV-12-18610, the defendant, THE ESTATE OF ANDREW COMRIE, shall pay the plaintiff BETTY JO LYNN ALGRA her costs of $400,000 (all inclusive) on the summary judgment motions;
2. In Court File No. CV-13-19389, the defendants, THE ESTATE OF ANDREW COMRIE and THE ESTATE OF DANNY MONTEIRO, shall jointly and severally pay the plaintiff DANIELLE FELTHAM her costs of $306,849.23 (all inclusive) on the summary judgment motions;
3. In Court Files CV-12-18610 and CV-13-19389, the defendants, THE ESTATE OF ANDREW COMRIE and THE ESTATE OF DANNY MONTEIRO, shall jointly and severally pay the defendant His Majesty the King in right of Canada his costs of $266,247.02 (all inclusive) on the summary judgment motions;
4. In Court Files CV-12-18610 and CV-13-19389, the defendants, THE ESTATE OF ANDREW COMRIE and THE ESTATE OF DANNY MONTEIRO, shall jointly and severally pay the defendant His Majesty the King in right of Ontario his costs of $210,830.12 (all inclusive) on the summary judgment motions;
5. In Court Files CV-12-18610 and CV-13-19389, the defendants, THE ESTATE OF ANDREW COMRIE and THE ESTATE OF DANNY MONTEIRO, shall jointly and severally pay the defendant The Corporation of the Municipality of Leamington its costs of $344,847.03 (all inclusive) on the summary judgment motions; and
6. Said costs shall be paid on or before 30 days from the date of this order.

“original signed and released by Munroe J.” Kirk W. Munroe Justice

Released: February 15, 2023

Footnotes

[1] The names come from two old English cases: Bullock v. London General Omnibus Co., [1907] 1 K.B. 264; Sanderson v. Blyth Theatre Co., [1903] 2 K.B. 533.

[2] See, e.g., para. 57 of Comrie’s written costs submissions: “The Comrie defendant did not attempt to shift the blame to the unsuccessful defendants.”

[3] The Comrie Estate’s written costs submissions, at paras. 42 – 52 and Feltham’s written costs submissions at para. 28.

[4] Algra’s written reply costs submissions, at para. 57.

[5] Algra did not sue the Estate of Monteiro – Monteiro was her common law spouse and the father of her children. Monteiro was brought into the Algra case by the counterclaims of all four defendants.