Court File and Parties

COURT FILE NO.: CV-17-566997 DATE: 20230515 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MARRIAN DORAH, EWART RITCHIE and PRESTON DORAH-RITCHIE, a Minor by his Litigation Guardian, MARRIAN DORAH, Plaintiffs

AND:

NEETA DYAL, Defendants

BEFORE: Koehnen J.

COUNSEL: A. Kwinter, S. Guirguis for the plaintiffs S. Sandhu, S. Jinnah for the defendant

HEARD: In writing.

Costs Endorsement

Overview

[1] This costs endorsement arises out of a four-week jury trial at the end of which the plaintiffs received an award totalling $652,521. When statutory deductibles were applied, the net award of damages plus prejudgment interest came to $191,228.65. [1]

[2] The plaintiffs claim costs and disbursements in the amount of $461,284.66. The defendant claims costs of $178,803.71 including disbursements and HST.

[3] Although there are several issues to address in this cost endorsement, the most significant dispute between the parties relates to the effect, if any, of an offer to settle that the defendant served approximately one month before trial on January 12, 2023 and in which it offered to settle the action by paying $250,000 to the plaintiffs plus costs to be agreed upon or assessed by the court. The defendant submits that its offer attracts the cost consequences of Rule 49.10 of the Rules of Civil Procedure. The plaintiff denies that this is the case.

[4] I find that the defendant’s settlement offer does attract the cost consequences of Rule 49.10 of the Rules of Civil Procedure. I would, however, adjust the defendant’s costs downward as a result of two issues arising out of the fact that the defendant was represented by internal counsel at her insurer, Aviva. The first adjustment arises because Aviva internal counsel did not record their time but only estimated it after the fact. The second adjustment ensures that the cost award indemnifies Aviva for its actual costs and does not turn cost awards into a source of profit for them.

[5] In the end result, I award the plaintiffs costs of $97,211.53, including disbursements and HST, subject to a potential upward adjustment for disbursements as explained later in these reasons. I award the defendant costs of $75,288.36 including disbursements and HST. This results in a net costs payment of $21,923.17 from the defendant to the plaintiff.

A. Does the Offer Attract the Cost Consequences of Rule 49?

[6] Subrule 49.10(2) of the Rules of Civil Procedure provides that where an offer to settle (a) is made by a defendant at least seven days before the commencement of the hearing; (b) is not withdrawn and does not expire before the commencement of the hearing; and (c) is not accepted by the plaintiff, and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date forward, unless the court orders otherwise.

[7] Rule 49.10(3) of the Rules of Civil Procedure provides that the party seeking the benefit of the Rule bears the burden of proving that it is entitled to the benefit it claims.

[8] The issue arises because the action involved three claims. A claim by the main plaintiff Marrian Dorah as well as claims by her husband and son under Part V of the Family Law Act. [2] The plaintiff submits that the defendant’s offer does not attract the positive cost consequences of Rule 49 because: (a) it lumps all of the plaintiffs together and does not set out separate amounts payable to each plaintiff; and (b) it does not indicate whether individual plaintiffs can accept the offer or whether all three must accept it.

a. Defendant’s Offer Lumps All Plaintiffs Together

[9] The plaintiffs submit that an offer to settle that lumps together all plaintiffs without setting out how much each particular plaintiff will receive cannot attract cost consequences under Rule 49.10 of the Rules of Civil Procedure. It relies on a particular line of cases for that proposition. They argue that a settlement offer must be “crystal clear” in order to trigger Rule 49.10 of the Rules of Civil Procedure. [3] The plaintiffs say the defendants’ offer was not “crystal clear” because it was not clear how much was being offered to each individual plaintiff.

[10] The defendant relies on another line of cases which holds that an offer that lumps plaintiffs together can attract positive cost consequences in favour of a defendant.

[11] In Onisiforou v. Rose, [4] a 1998 decision of the Ontario Court of Appeal, the plaintiff brought an action for damages arising out of a motor vehicle accident. The plaintiff’s husband was a co-plaintiff with a Family Law Act claim. The defendant had offered to settle for:

“$50,000 inclusive of claims and prejudgment interest for all plaintiffs. Assessable costs are in addition.”

The jury assessed the husband’s damages at nil. The Court of Appeal’s decision notes that, when comparing the judgment to the settlement offer, the total judgment came to $46,487.91; that is to say, less than the amount of the defendant’s offer. The judgment in favour of the female plaintiff, however, came to $50,868.60. The decision does not explain the reason for the difference between the two amounts. Be that as it may, the Court of Appeal proceeded on the assumption that the judgment in favour of the wife was less than the defendant’s settlement offer.

[12] Morden ACJO found that it was not possible in the circumstances to compare the wife’s judgment with the terms of the offer to settle because there was no separate offer with respect to the claim on which the wife obtained her judgment. The court made this finding even though it proceeded on the basis that the total judgment in favour of both plaintiffs was less than the defendant’s settlement offer. Morden ACJO specifically noted that Rule 49.02(1) of the Rules of Civil Procedure allows a party to serve to settle “any one or more of the claims in the proceeding.” In other words, the $50,000 offer could have specified that it related solely to the wife. It did not, as a result of which the court found that it did not attract cost consequences under Rule 49.

[13] The Court of Appeal came to the same conclusion a year later in Serra v. Paniccia. [5] There too, the defendant served an offer to settle the claims of all plaintiffs for a single amount. The court noted that, as in Onisiforou, it was not possible to compare the successful plaintiff’s award with the settlement offer because the settlement offer was a lump sum payable to all plaintiffs.

[14] The Court of Appeal again came to the same conclusion in Malik v. Sirois. [6]

[15] The plaintiffs argue that the defendant’s offer in this case was like the offers in Onisiforou, Serra and Malik. It offered a lump sum without breaking down the amount between the three plaintiffs. The plaintiffs submit that this makes it impossible to compare each plaintiff’s net award of damages with the terms of the offer to settle for the purposes of Rule 49.10(2) of the Rules of Civil Procedure. In those circumstances the plaintiffs submit that the offer is unclear.

[16] Since Onisiforou, courts have handled this situation in three ways. Some have followed the Onisiforou line of cases. [7]

[17] In Mayer et al. v. 1474479 Ontario Inc. et al., [8] Justice I. F. Leach dealt with a similar situation without referring to the Court of Appeal cases cited above but by exercising his discretion under s. 131 of the Courts of Justice Act [9] and Rule 49.13 of the Rules of Civil Procedure to take into account any settlement offer made in writing even if it does not formally comply with Rule 49.10 of the Rules of Civil Procedure and denied both sides costs.

[18] In Fragomeni v. Ontario Corporation 1080486, [10] Baltman J. took a different route. At the end of trial she assessed total damages for the principal plaintiff at $90,000, Family Law Act damages for his spouse at $10,000 and Family Law Act damages for each of his five children at $2,000. She added to that a small amount on account of disbursements for a total damages award for all plaintiffs of $112,316.79.

[19] Before trial, the defendant in Fragomeni had offered to settle the claim for payment to the plaintiffs of $250,000 for all damages plus prejudgment interest plus party and party costs.

[20] Like the plaintiffs in this case, the plaintiffs in Fragomeni argued that the offer did not attract Rule 49 consequences because it was ambiguous in that it did not indicate how the settlement was to be divided amongst the various plaintiffs. Baltman J. noted that the defendants intended for the plaintiffs to divide the settlement funds between themselves and that that this approach made sense where the plaintiffs were family members, all claims arose out of the same incident and the plaintiffs were represented by the same counsel. [11] She also emphasized that the offer represented more than double what the plaintiffs recovered. As a result, no matter how the plaintiffs divided it amongst themselves, it was “an exceedingly generous offer.” [12]

[21] Baltman J. distinguished Onisiforou on the basis that in Onisiforou, the plaintiffs recovered nearly the same amount as the offer. That was different from the situation in Fragomeni where the amount offered was so much higher than the result that any comparison was easy and obvious. [13]

[22] From a policy perspective, Baltman J. held that:

To deprive [the defendants] of costs now would send the message that genuine settlement efforts don't pay. This in turn defeats the goal of resolving cases before trial in order to minimize the tremendous costs, human and financial, that litigation entails.

[23] The reasoning in Fragomeni has been followed in at least two other Superior Court decisions. [14]

[24] The defendant here submits that, as in Fragomeni, it is highly unlikely that the plaintiffs rejected the offer because it was unclear or because they were concerned about who should get how much under the offer. Rather, the plaintiffs rejected the offer because they believed they could obtain a higher collective award at trial.

[25] The defendant also relies on s. 62 of the Family Law Act. [15] Section 62 is found in Part V of the Act which governs claims for what have become known as Family Law Act damages. Ms. Dorah’s two co-plaintiffs, her husband and son, bring such claims. Section 62(1) of the Act provides:

62 (1) The defendant may make an offer to settle for one sum of money as compensation for his or her fault or neglect to all plaintiffs, without specifying the shares into which it is to be divided.

Apportionment

(2) If the offer is accepted and the compensation has not been otherwise apportioned, the court may, on motion, apportion it among the plaintiffs.

[26] This section of the Family Law Act does not appear to have been brought to the attention of the Court of Appeal panels in Onisiforou, Serra or Malik. Nor do the courts in Fragomeni or the cases which follow it cite the provision.

[27] Given that s. 62(1) of the Family Law Act specifically relieves defendants from breaking down settlement offers between Family Law Act claimants and main plaintiffs, a defendant who follows that statutorily sanctioned approach should not, in my view, be deprived of the beneficial cost consequences of Rule 49 of the Rules of Civil Procedure. If anything, the language in s. 62(1) of the Family Law Act makes the reasoning of Fragomeni even more compelling. As a result, I find that the defendant is not deprived of the beneficial cost consequences under Rule 49 of the Rules of Civil Procedure simply because she did not break down the offer as between the various plaintiffs.

b. Severability of the Offer

[28] The plaintiff next objects to the defendant’s offer attracting Rule 49 consequences because the offer did not permit any one plaintiff to settle unless they all agreed.

[29] The plaintiffs point to cases that hold that it is questionable whether an offer that is expressly made conditional on its acceptance by multiple parties can engage the cost consequences of Rule 49 of the Rules of Civil Procedure. [16]

[30] In Lumsden v. Delpeche, [17] where the court faced a situation similar to the one that presents itself here, the court held that the non-severable nature of the offer precluded it from attracting the cost consequences of Rule 49 of the Rules of Civil Procedure because such offers encourage plaintiffs to play off their claims against each other. As a result, the plaintiffs were entitled to their partial indemnity costs throughout. Again, s. 62 of the Family Law Act does not appear to have been brought to the attention of the court in Lumsden.

[31] The defendant before me notes that the plaintiffs had made their own lump sum offer to settle which should disqualify them from complaining about the inseverable nature of the defendant’s offer. A similar situation arose in Yelland v Sunrise et al, [18] where the court found that this did not resolve the “defect” in the defendant’s offer. [19]

[32] The defendant relies on Fragomeni, where Baltman J. held that there was nothing wrong with an inseverable offer in cases with Family Law Act claims and that there was much right with an approach like that:

In my view, there are good policy reasons for encouraging this approach in cases such as this. The plaintiffs consist of a husband, wife, and their five sons. All the sons are adults, and several are married with children of their own. Their evidence at trial was that they are a close knit, mutually supportive family. Typically, in these cases, any offer is considered by the group, for the group, and acceptance does not turn on the precise breakdown among the various claimants. The plaintiffs can assess the offer in its entirety and then decide, as a family, whether to accept it, and if so, how it should be divided. This collaborative approach is less likely to pit one member against the other, as opposed to a pre-determined formula made by defendants who may not appreciate the dynamics within a family and their beliefs about whether the offer truly reflects their individual entitlement.

[33] Section 62(1) of the Family Law Act would appear to endorse this approach. Here too I would not deprive the defendant of the favourable cost consequences under Rule 49 of the Rules of Civil Procedure for following the process expressly permitted by s. 62(1) of the Family Law Act. If in fact the situation should arise where an inseverable offer encourages plaintiffs to play their claims off against each other, any plaintiff can avail itself of the process provided for in s. 62(2) of the Family Law Act and ask the court to apportion damages between them.

[34] In my view, the defendant is entitled to the favourable cost consequences under Rule 49 of the Rules of Civil Procedure. It made an offer more than 7 days before trial. The offer remained open until trial. The defendant clearly obtained a result at trial that was superior to the result the plaintiffs obtained at trial. Section 62(1) of the Family Law Act allowed the defendant to make a collective, inseverable offer. To deprive the defendant of cost consequences under Rule 49 of the Rules of Civil Procedure in those circumstances would undermine the policy objectives behind the Rule and would discourage defendants from making reasonable offers to settle.

B. Amount of Fees Claimed

[35] The plaintiff seeks fees of $334,172.10, HST of $43,442.37 and disbursements of $83,670.19 (including HST).

[36] Of those fees, the amount of $56,622 plus HST of $7,360.86 for a total of $63,982.86 were incurred before the date of the defendant’s offer to settle. The disbursements the plaintiff incurred before the defendant’s settlement offer come to approximately $33,228.67. This is based on a list of disbursements dated December 15, 2022. There appear to be a large amount of disbursements incurred after December 15, 2022. It is not clear whether the disbursements that were incurred after December 15, 2022 relate to services performed after that date or whether the services were performed before December 15, 2022 but were merely billed after that date. In principle, the plaintiffs should be reimbursed for disbursements on account of services rendered before January 12, 2023 (the date of the defendant’s offer), regardless of when the invoice was sent. If there are adjustments to be made in this regard on which the parties cannot agree, I will make myself available at a case conference to resolve any such disputes.

[37] Subject to any such adjustments, the fees and disbursements that the plaintiffs are entitled to as having occurred before the date of the defendant’s settlement offer come to $97,211.53.

[38] The defendant submits that those hourly rates are too high. They are based on actual hourly rates of between $850 and $1,100 for Mr. Kwinter which were reduced to partial indemnity rates of between $510 and $660 per hour. Actual hourly rates for associates ranged between $350 and $500 which were reduced to partial indemnity rates of between $210 and $300.

[39] It is well established that the exercise of fixing costs is not a mathematical exercise of multiplying hourly rates by the amount of time spent. Rather it is an exercise of fixing a fee that is fair and reasonable. It strikes me that a fee of $56,622 plus HST is reasonable for the work required up to January 12, 2023. The action was commenced in 2017. It involved complex medical issues involving chronic pain syndrome, psychologists, psychiatrists, physiotherapists, orthopaedic specialists, and long term care issues over the course of 6 years. Mr. Kwinter is a senior counsel. It could be reasonably expected that he would bill out at the higher end of the billing range. The defendant does not object to any of the specific work done to arrive at the fee. In those circumstances the fee sought is not unreasonable.

[40] The defendant seeks partial indemnity costs from the date of its Rule 49 offer (January 12, 2023), to the last day of the trial (March 3, 2023) in the amount of $178,803.71. Of that amount, the sum of $36,889.39 is on account of disbursements, including HST.

[41] The fee portion of the claim is arrived at by an estimate. The defendant was represented in this action by in house counsel from her insurer, Aviva. Aviva Trial Lawyers do not maintain time dockets. The number of hours for which they claim is based on estimates of time spent at each phase of the litigation. The defendant’s lawyers estimate they spent 224 hours between the date of the settlement offer and the end of trial which they note is very similar to plaintiffs’ counsel time of 228 hours.

[42] Aviva then calculates an hourly rate for their lawyers by taking the highest hourly rates established in 2005 under the Cost Grid under the Rules ($350 for Mr. Sandhu and $225 for Mr. Jinnah) and adjusting those rates for inflation using the Bank of Canada’s inflation calculator adding 13% HST to arrive at a total including HST of $141,914.32.

[43] The plaintiffs raise issues about the estimated number of hours and the hourly rates that Aviva notionally charges.

[44] With respect to the number of hours spent, the plaintiff notes that Aviva is claiming roughly the same number of hours that the plaintiffs spent during the relevant time period. Plaintiffs’ counsel, however, had 17 witnesses to examine in chief and to prepare for cross examination while the defendant had only 4 witnesses. Moreover, the defendant’s cross-examinations of the plaintiffs’ witnesses were rather perfunctory; often eliciting little more than the fact that a particular physician was a paid expert rather than a treating physician or that an expert was a psychologist rather than a medical doctor. In addition, plaintiffs’ counsel took the lead in preparing and assembling a sizeable Joint Document Brief. I accept those as legitimate factors to take into account in setting the fee for defendant’s counsel.

[45] The Plaintiffs submit that an appropriate time estimate would be two-thirds the amount of time spent by the plaintiffs. If I reduce the defendant’s claimed fees of $141,914.32 by one third to reflect these adjustments, the amount for fees would be reduced to $93,663.24.

[46] I turn then to the hourly rates notionally claimed by the Aviva lawyers.

[47] The plaintiffs note that the notional rates claimed by Aviva are the party and party rates at the maximum partial indemnity rates listed in the costs grid.

[48] In Rochon v MacDonald, [20] the court held:

I do not feel bound by the costs grid for several reasons. First, there is no appellate authority that says I must be. Second, the court can take judicial notice of the fact that defence counsel charge the rates they do because of their ongoing relationship with their clients, insurers' corporate policies, competition in the industry and because of the very nature of insurance defence work, which is challenging to be sure, but is not fraught with litigation risk associated with the non-recoverability of fees and disbursements if a case must be abandoned or meets with an unsuccessful outcome. Third, the principal of indemnity requires the court to take into account the fact that the less the plaintiff is able to recover in costs from the defendants, the greater will be his contribution to his own solicitor and client account. In the context of this case, that would serve to create an injustice because the plaintiff will be using real future collateral benefits to satisfy the imposed trust obligations when a portion of the corpus of his tort recovery has been used to pay off his solicitor and client account. [21]

[49] Ascribing an hourly rate to internal counsel creates certain challenges. On the one hand, s. 36 of the Solicitors Act [22] stipulates that costs shall not be disallowed or reduced on assessment merely because they relate to counsel who is a salaried employee of the party. On the other hand, the principle behind cost awards is to indemnify, not to create a windfall. It would be an unjust result if insurers could use internal counsel and turn cost awards into a profit centre for the insurer.

[50] Mr. Sandhu is a 2003 call. He calculates costs based on a partial indemnity rate of $350 per hour. That translates into an actual hourly rate of $583. For Aviva to be indemnified for Mr. Sandhu’s time at this rate would assume that Mr. Sandhu’s cost to Aviva is $980,000 per year. I arrive at this by assuming a 7 hour day at $583 a rate of per hour and 48 weeks of work per year. While I do not have any cost information from Aviva before me, I would be surprised if the cost of Mr. Sandhu’s salary and overhead came to $980,000 per year. Mr. Jinnah is a 2022 call. The defendant’s bill of costs notionally bills his time at $225 per hour or an actual rate of $375 per hour. Carrying out the same calculation as I did for Mr. Sandhu would result in Mr. Jinnah costing Aviva $630,000 per year in salary and overhead to justify a partial indemnity rate of $225 per hour. There too I would be surprised if a lawyer with one year’s experience cost Aviva $630,000 per year. The combined billing rates claimed for Mr. Sandhu and Mr. Jinnah would result in an annual cost of $1,610,000 for the two if Aviva is to be indemnified for costs at the rates they seek. I have serious concerns that allowing the billing rates that Aviva claims would not indemnify Aviva for its costs but would turn cost awards into a source of profit.

[51] I would reduce the billing rates for Mr. Sandhu and Mr. Jinnah by a further 50% to help improve the probability that Aviva receives indemnity and not a windfall. Doing so would award costs on the basis that the actual cost to Aviva of employing Mr. Sandhu is $490,000 and the actual cost of employing Mr. Jinnah is $315,000 per year. As noted earlier, once the adjustment is made for the time spend by defence counsel, their fees come to $93,663.24. Applying a further 50% discount results in fees of $46,831.62 including HST.

C. Defendant’s Disbursements

[52] The plaintiffs take exception to the defendant’s claimed disbursements of $3,999.07 for surveillance, $3,004.22 for partial trial transcripts, and $1,429.36 for meal expenses, on the basis that these are not fair and reasonable expenses to be charged.

[53] In Magnone v. Dawson, the court disallowed disbursements for surveillance because the surveillance evidence was not used at trial. [23] Similarly, in the case before me, the defence made no attempt to introduce surveillance evidence at trial. I would therefore disallow that disbursement.

[54] In Noori v. Liu, [24] the court declined to order payment for trial transcripts where the transcripts were not shared and where the party ordering the transcript had a second counsel present at trial taking notes. Similarly, here the transcript was not shared with the plaintiffs and the defence had two lawyers in court at all times, thereby leaving one free to take notes. I would decline to award the transcript disbursement.

[55] Finally, the defendants set out disbursements of $2,498.31 for food and transportation. The defendant’s Compendium sets out transportation expenses of $1,068.95. The plaintiff assumes that the remaining $1,429.36 relates to meal expenses. The defence did not contest this assumption.

[56] I do not think it would be appropriate to award meal expenses here. Defense counsel are based in Toronto, the venue of the trial. Absent a trial, defence counsel would have been incurring meal expenses out of their own pockets. I note that plaintiffs’ counsel did not claim meal expenses in their bill of costs. I would disallow the meal expense.

[57] Subtracting these expenses from the total claimed disbursements of $36,889.39 gets to a figure of allowable disbursements of $28,456.74.

[58] The defendant is therefore entitled to costs of $46,831.62 plus disbursements of $28,456.74 for a total of $75,288.36.

D. Prejudgment Interest

[59] There is disagreement between the parties about the calculation of pre-judgment interest on non-pecuniary damages. The plaintiffs submit that pre-judgment should be calculated from the date they delivered a notice of intention to commence an action to the last day of the trial. The defendant states that the pre-judgment interest should only be calculated until the date of the defendant’s Rule 49 offer to settle. Using the plaintiffs’ calculation, the pre-judgment interest would amount to $4,989.68. Using the defendant’s calculation, the pre-judgment interest would amount to $4,892.68. Although the difference is only $97 and has no practical implication regarding which party was successful at trial, the parties seek a ruling on the issue.

[60] In my view, pre-judgment interest should continue to run until the end of the trial. The concept behind pre-judgment interest is to compensate the beneficiary of the interest for the loss of use of funds which were theoretically payable when the notice of intention was served. Similarly, the paying party has had the use of those funds and could have earned interest on them. It would be inconsistent with this purpose to have pre-judgment interest stop running as of the date of the defendant’s settlement offer. The defendant continued to have use of the funds after the settlement offer and will continue to do so until the funds are paid. It should therefore pay either pre or post judgment interest on the funds until they are paid. If a defendant wants to protect itself against this risk, it can invest the money it is prepared to pay as a settlement in order to earn interest on it.

E. Other Cost Factors Under Rule 57

[61] The parties referred to a number of other factors that the court can take into account under Rule 57.01(1) of the Rules of Civil Procedure. I have considered the factors and the parties’ submissions on them. While one party or another may have a small point to make with respect to various factors, none of those points, either singularly or collectively changes my allocation of costs as set out above. Most of the factors were advanced by the plaintiffs to justify the costs they claimed for the trial. Given that I have disallowed those costs, I will not address the factors they advance.

[62] The most contentious factor the defendant raises is the submission that the plaintiff needlessly lengthened the trial with redundant witnesses and took an unreasonably long time to cross examine the defendant’s witnesses, particularly Dr. Boynton.

[63] Most of the “redundant” witnesses Mr. Kwinter called were not truly redundant. Most were fact witnesses that gave their own perspective on Ms. Dorah’s condition since the accident. Having numerous witnesses testify to that was reasonable to persuade the jury that Ms. Dorah was not malingering but was genuinely and constantly suffering from the complaints she raised. While at one point I indicated to Mr. Kwinter that he was losing the jury because of repetitive evidence, that involved uncontentious evidence from a medical expert, which evidence had already been given at least twice by other experts.

[64] While Dr. Boynton’s cross-examination was longer and more aggressive than necessary, it was not so overly long or so overly aggressive as to it warrant cost sanctions.

[65] There was also an incident in which Mr. Kwinter implied that Mr. Jinnah was being disingenuous because he stated that Marrian Dorah had been working “four months.” Mr. Jinnah stated that he said Ms. Dorah had worked “for months.” This called for the jury to be excused and for me to hear argument. I agreed that Mr. Jinnah had said “for months.” While Mr. Kwinter lost that point, it does not rise to the level of trial conduct that warrants cost sanctions.

[66] The defence submits that it engaged in conduct that shortened the trial. I agree that the defence did not waste any time at trial. In my view the benefit of that approach is visible in the modesty of the net damages awarded. It is not necessary to give the defence a costs bonus for what turned out to be an effective trial strategy.

Conclusion

[67] As a result of the foregoing, I award the plaintiffs costs and disbursements up to January 12, 2023 which I fix in the amount of $97,211.53 including HST. This amount is subject to a potential upward adjustment if any of the disbursements billed after December 15, 2022 (the date of the disbursements list) were on account of services rendered before January 12, 2023 (the date of the defendant’s settlement offer). I award the defendant costs of $75,288.36 including disbursements and HST. Those awards should be set off against each other to result in a net payment of costs from Aviva to the plaintiffs of $21,923.17.

Date: May 15, 2023 Koehnen J.

[1] The defendant disputes the calculation of prejudgment interest. That dispute would decrease the damages by approximately $100. [2] Family Law Act, RSO 1990, c F.3. [3] Rooney v. Graham (2001), 53 O.R. (3d) 685 (C.A.); Malik v. Sirois (2003), 176 O.A.C. 348 [4] Onisiforou v. Rose, 1998 ONCA 5798 [5] Serra v. Paniccia, 1999 ONCA 3811 [6] Malik v. Sirois, 2003 ONCA 29931, upholding Malik v. Sirois, 2002 ONSC 7008. [7] See for example, Hayden v. Stevenson, 2010 ONSC 633. [8] Mayer et al. v. 1474479 Ontario Inc. et al., 2014 ONSC 2622 [9] Courts of Justice Act, RSO 1990, c C.43 [10] Fragomeni v. Ontario Corporation 1080486, 2006 ONSC 24241 [11] Ibid. at para. 13. [12] Ibid. at para. 14. [13] Ibid. at para. 22. [14] D’Addario v. Smith, 2016 ONSC 4690; Singh v. Shoppers et. al., 2018 ONSC 6879. [15] Family Law Act RSO 1990, c. F.3 [16] Computron Systems International Inc. v. Ladhani et al., 2020 ONSC 4521, at para. 30, citing Lumsden v. Delpeche, 2003 ONSC 31659, at para. 18; Ksiazek v. Newport Leasing Ltd., 2008 ONSC 15771, at paras 22-23; Wilson v. Quinn, 2002 ONSC 45009 at para 16; Dryden (Litigation Guardian of) v. Campbell Estate, 2001 ONSC 28090 at para 3. [17] Lumsden v. Delpeche, 2003 ONSC 31659 [18] Yelland v. Sunrise et al., 2019 ONSC 2842 see also Mayer et al. v. 1474479 Ontario Inc., 2014 ONSC 2622; and Hayden v. Stevenson, et al., 2010 ONSC 633 [19] Yelland v. Sunrise et al., 2019 ONSC 2842 at para. 46. [20] Rochon v. MacDonald, 2014 ONSC 591 [21] Ibid. at para. 23 [22] Solicitors Act, RSO 1990, c S.15 [23] Magnone v. Dawson, 2014 ONSC 3548 at para 26. [24] Noori v. Liu, 2021 ONSC 3445 at paras 55 and 79