ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-371270
(Toronto)

DATE: 20120306

BETWEEN:

JONATHAN BROWN, CLAUDETTE BROWN, IAN BROWN and RACHEL BROWN, a minor, by her litigation guardian Claudette Brown
Plaintiffs

– and –

VINCENT CAPPUCCITTI, SYLVIA CAPPUCCITTI, DANNY CAPPUCCITTI, ONTARIO POTATO DISTRIBUTION (ALLISTON) INC. 1991 and THE PERSONAL INSURANCE COMPANY
Defendants

Daniel Czutrin, for the Plaintiffs

S. Wayne Morris, for the Defendant Personal Insurance Company,
Vanda A. Santini, for the Defendant Ontario Potato Distribution (Allison) Inc.
Alan L. Rachlin, for proposed statutory third party, Aviva Canada Inc.

J.s. o’neill

RULING ON COSTS

[ 1 ] Since releasing my Reasons on February 7, 2012, I have received costs submissions from the parties as follows:

i. From Mr. Morris – February 10, 2012

ii. From Ms. Santini – February 23, 2012

iii. From Mr. Rachlin – March 2, 2012

[ 2 ] S.131 of the Courts of Justice Act 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

[ 3 ] Rule 57 of the Rules of Civil Procedure sets forth the factors to be considered by the court in exercising its discretion under s.131 of the Courts of Justice Act , placing emphasis on the result in the proceeding and any written offer to settle.

[ 4 ] I generally accept the position of counsel for the Personal Insurance Company and counsel for the Defendant Ontario Potato, that the issues raised in the motion were of considerable importance to these parties. Depending upon how the court ruled, had Aviva succeeded in its submissions, its potential liability could well have been capped at $200,000.00, leaving any excess of the claim up to Personal Insurance Company’s limit of $1,000,000.00 to be payable by the Personal.

[ 5 ] Likewise, a ruling on the motion in support of Aviva’s position may well have determined Aviva’s indemnity obligation to its insured Ontario Potato.

[ 6 ] I have examined the bill of costs of both counsel for the Personal Insurance Company and counsel for Ontario Potato. I have also reviewed the costs outline prepared by Mr. Rachlin prior to the motion. In finalizing my partial indemnity costs order, I would make the following adjustments:

i. Re: The costs of the Personal Insurance Company – I would reduce the hours under the first two items from 23.5 and 9.0 by 25% less reducing those hours to 24.375 hours. I would round this up to 24.5 hours which when combined with the 4 hours attendance at the motions, amounts to 28.5 hours. I would reduce the substantial indemnity rate for $360.00 per hour by 25% to $270.00. Accordingly I fix the Personal Insurance Company’s partial indemnity costs on this motion at $7695.00 together with HST of $1,000.35 for a total of $8,695.35.

ii. Ontario Potato – I make no adjustment or amendment to the bill of costs submitted and I approve a partial indemnity cost order totaling $4051.05 (inclusive of HST.)

[ 7 ] The two costs orders which I have made herein are to be paid by Aviva Canada within the next 60 days.

[ 8 ] Order accordingly.

Justice J.S. O’Neill

Released: March 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JONATHAN BROWN, CLAUDETTE BROWN, IAN BROWN and RACHEL BROWN, a minor, by her litigation guardian Claudette Brown Plaintiffs – and – VINCENT CAPPUCCITTI, SYLVIA CAPPUCCITTI, DANNY CAPPUCCITTI, ONTARIO POTATO DISTRIBUTION (ALLISTON) INC. 1991 and THE PERSONAL INSURANCE COMPANY Defendants RUling on costs Justice J.S. O’Neill

Released: March 7, 2012