DATE: 20060620

COURT OF APPEAL FOR ONTARIO

DOCKET: C40457

RE:

ADELIA PEREIRA (Plaintiff/Respondent) – and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)

AND RE:

HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)

AND RE:

DOCKET: C40458

RE:

FRANK MAZZA (Plaintiff/Respondent) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)

AND RE:

HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) –and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)

AND RE:

DOCKET: C40459

RE:

1018202 ONTARIO LIMITED, BRIAN FITZPATRICK and NINA FITZPATRICK (Plaintiffs/Respondents) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Appellant)

AND RE:

HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Appellant) –and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Respondents)

AND RE:

DOCKET: C42372

RE:

FRANK MAZZA (Plaintiff/Appellant) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Respondent)

AND RE:

HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Respondent) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Appellant)

AND RE:

DOCKET C42373

RE:

1018202 ONTARIO LIMITED, BRIAN FITZPATRICK and NINA FITZPATRICK (Plaintiffs/Appellants) –and – HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Defendant/Respondent)

AND RE:

HAMILTON TOWNSHIP FARMERS’ MUTUAL FIRE INSURANCE COMPANY (Plaintiff by Counterclaim/Respondent) – and – ADELIA PEREIRA, MARCO PEREIRA, MARIO PEREIRA, FRANK MAZZA and 1018202 ONTARIO LIMITED (Defendants by Counterclaim/Appellant)

BEFORE:

DOHERTY, BORINS and LAFORME JJ.A.

COUNSEL:

Earl A. Cherniak Q.C., Kirk F. Stevens

for Hamilton Township Farmers’ Mutual Fire Insurance Company

Alfred M. Kwinter and Jason D. Singer for Adelia Pereira, Frank Mazza,

1018202 Ontario Limited,

Brian Fitzpatrick and Nina Fitzpatrick

HEARD:

October 19 and 20, 2005

On appeal from the judgment of Justice C. Anne Tucker of the Superior Court of Justice dated July 16, 2003, sitting with a jury.

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

[1] The successful appellant, Hamilton Township Farmers’ Mutual Fire Insurance Company, has submitted a bill of costs on a partial indemnity basis in the amount of $171,943.31 for total fees, disbursements and GST.

[2] As the insurer was largely successful, it is entitled to some portion of its costs. The finding of liability was set aside and even if the insurer is found liable on a retrial, its exposure will be significantly lower given our decision on loss of profit and punitive damages. However, there are two reasons why we believe that there should be a significant reduction in the fess claimed.

[3] Although this appeal involved more preparation than the average appeal given the very long trial record that raised several legal issues that had to be thoroughly reviewed and mastered by appellate counsel, the legal issues were not complex, nor were the factual issues. However, the four months spent in preparation by the junior lawyers and the law clerk were excessive.

[4] We also think that the costs claimed should be reduced significantly because of the failure of the insurer’s trial counsel to raise the issues on which the insurer succeeded on the liability appeal. While some cases have used the failure of trial counsel to object as a basis for denying any costs, we believe that in this case it would be appropriate to reduce the costs claimed, exclusive of disbursements, by two thirds. The reduction applies to the total fees claimed, but not to disbursements.

[5] We would, therefore, fix costs at $50,000 plus GST, together with disbursements of $10,000 plus GST.

“Doherty J.A.”

“S. Borins J.A.”

“H. S. LaForme J.A.”