ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-30867
DATE: 2012-03-07

B E T W E E N:

SCOTT SMITH

Plaintiff

• and -

THE ESTATE OF SHERRI BARNA, CARRIE LESLIE and JOHN NAVES

Todd Wasserman for the Minister of Finance in the name of and on behalf of the Defendant, John Naves

Defendants

• and -

AVIVA CANADA INC.

Kieran C. Dickson for Aviva Canada Inc.

Third Party

SUPPLEMENTARY REASONS – COSTS

CAVARZAN J.

[ 1 ] Having successfully resisted Aviva Canada Inc.’s motion for summary judgment, the Minister of Finance seeks partial indemnity costs of $9,140.72. Aviva’s position is that the appropriate costs order in this case is that costs be in the cause.

[ 2 ] Effective January 1 st , 2010 rule 20 of the Rules of Civil Procedure was amended to remove a disincentive to litigants from using rule 20, by eliminating the presumption that they will face substantial indemnity costs for bringing an unsuccessful motion for summary judgment.

[ 3 ] In this case, the successful party claims only partial indemnity costs. Rule 57.03(1) specifies that:

(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days;

[ 4 ] As noted by Nordheimer J. in Marini v. Muller , [2001] O.J. No. 259 (S.C.J.) at paragraph 5 :

[5] …There are two standard rules that are applied to costs of interlocutory proceedings. One is that the successful party is normally entitled to its costs – see Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA) , 17 O.R. (3d) 135 (C.A.). The other is that costs are normally payable forthwith – see Axton v. Kent (1991), 1991 7196 (ON SC) , 2 O.R. 797 (Div. Ct.). Neither of these rules [is] absolute, of course, and can be departed from in appropriate cases.

[ 5 ] In its comprehensive analysis of the new summary judgment rule in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , the Court of Appeal expounded on the matter of costs in rule 20.06. Although addressing the issue of when it would be appropriate to award substantial indemnity costs, the following statement at paragraph 67 applies equally to a claim for partial indemnity costs:

[67] ...as the jurisprudence becomes more settled on when it is appropriate to move for summary judgment, the reasonableness of the decision to move for summary judgment or to resist such a motion will be more closely scrutinized by the court in imposing cost orders…

[ 6 ] I agree with Aviva that it was reasonable to bring a motion for summary judgment in the circumstances, as it was reasonable for the Minister to oppose the motion. It should be apparent from the reasons for decision that it was a close run contest.

[ 7 ] As in the Marini decision, supra , I am persuaded that the appropriate order in the circumstances is to leave costs in the cause. Nordheimer J. reasoned as follows in paragraph 6 of his reasons in Marini:

[6] In my view, in a case such as this when the result of the summary judgment motion was what might fairly be referred to as a “close call”, the appropriate result is to leave the costs in the cause. There are two very distinct positions taken by the parties here. One or the other is going to be successful at trial. If the plaintiff’s position is ultimately successful then there is some merit to the suggestion that it ought to have had its summary judgment in the first instance. If, on the other hand, the defendant is ultimately successful, then it clearly should have its costs of the summary judgment motion.

[ 8 ] Aviva proposes that the costs of the motion are best left to the trial judge, both in terms of the determination of cause and quantum. Like Nordheimer J., however, I am of the view that the fixing of costs should occur now.

[ 9 ] Regarding quantum, Aviva invokes rule 39.20(4)(b) to deny the Minister’s costs associated with the cross-examination of Carrie Leslie. I note, however, that rule 39.02(4)(b) applies to motions “other than a motion for summary judgment or a contempt order”.

[ 10 ] There is merit, nevertheless, to the concerns expressed about the hourly rates charged and the number of hours docketed for research and preparation. The motion was dealt with in the course of an oral hearing of about 45 minutes in duration.

[ 11 ] Aviva takes no issue with the amount claimed for disbursements, namely, $895.94.

[ 12 ] The costs are fixed in the total amount of $6,895.94 payable in the cause.

Cavarzan J.

Released: March 7, 2012

COURT FILE NO.: 07-30867

DATE:

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SCOTT SMITH Plaintiff - and - THE ESTATE OF SHERRI BARNA, CARRIE LESLIE and JOHN NAVES Defendants AVIVA CANADA INC. Third Party SUPPLEMENTARY REASONS – COSTS Cavarzan J. JC:dm

Released: March 7, 2012