COURT FILE AND PARTIES

COURT FILE NO.: S4787/2007(Sarnia)
DATE: 2012-02-23
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniel Brown and Karen Brown, Plaintiffs

AND:
Barbara Campbell, Defendant

BEFORE: Nolan J.

COUNSEL:
Catherine L. Wilde, for the Plaintiffs

Bradley W. Stone, for the Defendant

Costs ENDORSEMENT on ruling on the deductibility of collateral benefits

ENDORSEMENT

[ 1 ] After trial before a jury, the plaintiff Daniel Brown was awarded damages in the amount of $162,633.00 subject to a finding that he was 32.5% contributorily negligent. Part of that award comprised pre-trial wage loss. A number of weeks after the conclusion of the trial, the issue of the deductibility of the disability benefits that the plaintiff had received from his disability insurance carrier was raised. The issue had not been raised during the trial but rather a number of weeks after the conclusion of the trial and the discharge of the jury.

[ 2 ] Counsel for the plaintiffs and the defendant made submissions on the issue. I ruled that the amounts received by the plaintiff from his disability insurer appeared to have been deducted already by the jury, given the amount which was awarded to him. As well, I considered that the plaintiff, Mr. Brown was self-employed and had purchased his own disability insurance, thus it was not a benefit of his employment. I came to those conclusions based on the evidence that was presented at trial and the application of the relevant law to the facts of the case. I also found that the plaintiffs were successful and entitled to costs.

[ 3 ] The plaintiffs are seeking costs in the total amount of $6,790.72 including legal fees, disbursements and HST of 13%.

[ 4 ] Counsel for the defendant objected to costs being awarded in that amount and argued that, given the unique circumstances out of which the issue was raised, and the importance of the issue generally that the costs should not be granted in that amount. Rather, he asserted that costs in the amount of $3,500.00 plus disbursements was an appropriate amount.

[ 5 ] After reviewing the plaintiffs’ Bill of Costs, I find that the total number of hours spent of 52.3 is excessive representing more than six and a half eight hour days. Instead of determining a number of hours that would be appropriate on the information I have, I have reduced the total amount allowable for fees to $4,000.00 plus HST plus disbursements of $209.60 for a total cost award of $4,729.60.

Original signed “Justice Nolan”

Mary Jo M. Nolan
Justice

Date: February 23, 2012