ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-0352
DATE: 2012-02-27
B E T W E E N:
LINDA JUNG,
Duncan Macgillivray , for the Plaintiff
Plaintiff,
- and -
KAREN FRASER, 1723158 ONTARIO LTD., carrying on business as ADANAC HOTEL, ALLSTATE INSURANCE COMPANY OF CANADA, TRADERS GENERAL INSURANCE COMPANY, AVIVA CANADA INC., TANIS HENEY and/or JANE DOE, representative of the ESTATE OF DOUGLAS HOUSE and JOHN DOE,
The Defendants Karen Fraser, Traders General Insurance Company, Aviva Canada Inc., Tanis Heney and/or Jane Doe representative of the Estate of Douglas House and John Doe were not represented Robert E. Somerleigh , for the Defendant 1723158 Ontario Ltd., carrying on business as Adanac Hotel Paul Kiddey , for the Defendant Allstate Insurance Company of Canada
Defendants
HEARD: February 23, 2012, in Thunder Bay, Ontario
McCartney J.
Decision On Costs
[ 1 ] This matter commenced by way of Notice of Motion in which the Defendant 1723158 Ontario Ltd. carrying on business as Adanac Hotel (hereinafter referred to as “ the Adanac ”) moves to dismiss the action against it. The issue was ultimately resolved, and the Adanac now claims costs of the motion against all parties except the Defendants Tanis Heney and/or Jane Doe, representative of the Estate of Douglas House and John Doe.
[ 2 ] The material facts are as follows:
(1) As a result of an accident between a motor vehicle and a motorcycle on September 6, 2009, in Thunder Bay, an action was commenced by way of Statement of Claim on behalf of Linda Jung, an injured party, on August 31, 2011.
(2) The Statement of Claim named Karen Fraser, who was the uninsured owner/driver of the motor vehicle, as a Defendant, along with Allstate Insurance Company of Canada (hereinafter referred to as “ Allstate ”) (uninsured coverage) and Traders General Insurance Company and Aviva Canada Inc. (hereinafter referred to “ Aviva ” (underinsured coverage”).
(3) The Defendant the Adanac filed a Statement of Defence dated November 3, 2011, denying the allegation in the Statement of Claim that it was vicariously liable for the negligence of the Defendant Karen Fraser on the basis that she was acting in the scope of her employment for the Adanac, and asked that the action against it be dismissed.
(4) What had apparently led to the belief that Karen Fraser was acting in the scope of her employment was a report that House (now deceased) had heard at the scene of the accident that Karen Fraser was in the process of obtaining ice for the Adanac when the accident occurred.
(5) On October 31, 2011, Kevin D. Johnson, a bartender at the Adanac, swore an affidavit stating that Karen Fraser was not getting ice for the Adanac, but was obtaining ice for a personal party which he was having that evening.
(6) On October 31, 2011, Laura Husman, the bar manager at the Adanac, swore an affidavit that Karen Fraser was not on a mission for the Adanac at the time of the accident, and that the Adanac had three ice making machines which they had used for making ice.
(7) Both the Johnson and Husman affidavits were served on all parties.
(8) On November 31, 2011, Karen Fraser swore an affidavit stating that she was on her way to work as a bartender at the Adanac when the accident happened. Furthermore, she said she bought the ice for Kevin Johnson’s party that night at his request, and it had nothing to do with her employment at the Adanac.
(9) On or about November 3, 2011, Karen Fraser’s affidavit along with an offer to settle without costs by letting the Adanac out of the action was forwarded to all parties.
(10) Upon receiving the offer to settle and affidavit of Karen Fraser, the Plaintiff’s solicitor immediately wrote to Allstate and Aviva requesting permission to dismiss the action against the Adanac on the understanding that this would not prejudice the Plaintiff’s claim against them.
(11) On January 11, 2011, the present Notice of Motion was filed, asking that the action against the Adanac be dismissed.
(12) Only the Plaintiff filed a responding affidavit to the motion restating the position that the action would be dismissed once Allstate and Aviva agreed to their request.
(13) On January 15, 2012, Aviva wrote to the Adanac’s solicitor indicating it would take no position with respect to the motion.
(14) On January 16, 2012, Allstate wrote to the Adanac’s solicitor indicating it would not consent to dismissal, and required more information from the police files and needed an adjournment of the motion for this purpose.
(15) On January 19, 2012, Aviva gave the Plaintiff the permission requested to proceed to dismiss against the Adanac.
(16) On February 22, 2012, Allstate gave the Plaintiff the permission required to dismiss the action against the Adanac.
[ 3 ] I will deal with the costs claimed against each of the parties separately.
A. The Plaintiff
[ 4 ] It is common ground and admitted by all that the Plaintiff, due to the nature of the insurance policies involved, was required to commence action against all who might be responsible for the accident, and thus it was necessary to commence against the Adanac. However, once it was a realistic possibility that the Adanac might not be involved, the Plaintiff took the attitude that it would dismiss the action against the Adanac as long as this would not affect its claims against the insurers involved. Once this was accomplished, the action was apparently dismissed against the Adanac.
[ 5 ] The Plaintiff’s position throughout has been helpful to the Adanac and nothing it did prolonged the motion in any way and, in fact, the Plaintiff’s position in the end helped to finalize the motion short of a full hearing. So for these reasons no costs will be assessed against the Plaintiff.
- Aviva
[ 6 ] One week after the Notice of Motion hearing was filed, Aviva indicated it would not take a position with respect to the motion and, in fact, a few days after that gave the Plaintiff the permission required to proceed to dismiss the action against the Adanac. Aviva has maintained its position on the motion to the present time.
- Allstate
[ 7 ] Allstate argues that the time frame was so short from the issuance of the Statement of Claim to the motion that it had very little time to prepare, and had not even filed a Statement of Defence. Counsel pointed out that, like the Plaintiff, it too had responsibilities under the insurance policies, and had to be certain of the Adanac situation before it could voluntarily do what was being requested. Once it was able to do its due diligence and confirm that Karen Fraser was not acting in the scope of her employment at the relevant time, they were then able to cooperate and agree to the action against the Adanac being dismissed.
Assessment of Costs
[ 8 ] Turning to the costs material filed by the Adanac, while I do not believe the Plaintiff’s claim for partial indemnity costs are outrage, I have some sympathy for the Defendants involved not having sufficient time to determine their position on the motion due to the speed with which the matter was proceeding, i.e., the Statement of Claim issued August 31, 2011, offer to settle November 3, 2011, motion issued January 11, 2012. And, regardless of anything else, in the end everyone cooperated and the motion did not proceed to hearing. So, I am assessing costs as follows:
partial indemnity fees: $4,000.00 (including attendance in motions court by counsel)
disbursements: $1,080.00
total $5,080.00.
[ 9 ] Since Allstate, due to its apparent reluctance to cooperate in bringing the matter to a conclusion, would have been responsible for the Plaintiff having to incur greater costs to process the motion, these costs will be assessed 2/3 against Allstate and 1/3 against Aviva.
_____________ ”original signed by”_ ___
The Hon. Mr. Justice J. F. McCartney
Released: February 27, 2012
COURT FILE NO.: CV-11-0352
DATE: 2012-02-27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: LINDA JUNG Plaintiff - and – KAREN FRASER, 1723158 ONTARIO LTD., carrying on business as ADANAC HOTEL, ALLSTATE INSURANCE COMPANY OF CANADA, TRADERS GENERAL INSURANCE COMPANY, AVIVA CANADA INC., TANIS HENEY and/or JANE DOE, representative of the ESTATE OF DOUGLAS HOUSE and JOHN DOE Defendants DECISION ON COSTS McCartney J.
Released: February 27, 2012
/mls