Ontario Superior Court of Justice

Court File No.: CV-10-05
Date: 20120913

ONTARIO
SUPERIOR COURT OF JUSTICE

Between

DUSTIN ANDERSON AND INSIA HALAI
Plaintiff

– and –

NORTH WATERLOO FARMERS MUTAL INSURANCE COMPANY
Defendants

David A. Morin, for the Plaintiff
David Zuber and Joshua J.A. Henderson, for the Defendant

Heard: June 11, 2012

j.s. o’neill

RULING ON COSTS

[ 1 ] Following my endorsement of July 26, 2012, I received costs submissions from the Plaintiffs on August 8, 2012 and costs submissions from the Defendant on August 16, 2012. I have now reviewed and considered the submissions.

[ 2 ] S. 131(1) 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 ] Effective July 1, 2005, the costs grid was replaced by reliance on the discretionary factors set out in Rule 57.01(1), now supplemented by reference to the principle of indemnity (including the experience of the lawyers, the rates charged and the hours spent by the lawyers), and the amount of costs that an unsuccessful party could reasonably expect to pay. In addition, the power to award costs on a full as opposed to a substantial indemnity basis and to an unrepresented party was clarified.

[ 5 ] During the motion of June 11, 2012, the parties spent more time dealing with production of documents identified at Schedule B, then they did with respect to compelling compliance by the Defendant North Waterloo with respect to undertakings. It is true that the court heard submissions with respect to undertakings and it is clear from Mr. Henderson’s letter of August 16, 2012 that the completion to the undertakings will be provided directly to the Plaintiff in compliance with my endorsement.

[ 6 ] During the motion, counsel for the Defendant provided undertakings to determine whether the entire E-Adjustor file had been produced and to investigate whether the reason Mr. Maitland left the company had to do with the file. I am satisfied that both of these undertakings were answered in short order.

[ 7 ] With respect to the Schedule B documentation, following the court’s review of the documents, additional documents were ordered to be disclosed, then had agreed to be disclosed prior to the hearing of the motion.

[ 8 ] I appreciate that both parties made offers to settle before the motion was argued but having regard to my endorsement and the submissions made by counsel on the return of the motion, it is clear that the Plaintiffs had to bring the motion forward to court.

[ 9 ] Accordingly, in all of the circumstances, I conclude that the Plaintiffs have been more successful in the end result then has the Defendant. I also appreciate, however, that the Defendant came to court having agreed to release various Schedule B documents.

[ 10 ] In the exercise of my discretion, having regard to s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, and having regard to the costs submissions made by the parties, I would fix the costs of the Plaintiffs on the within motion in the sum of $5500.00 for fees, applicable HST on fees, together with disbursements inclusive of HST in the sum of $456.32. The costs herein fixed by me are to be paid forthwith by the Defendant to the Plaintiffs.

[ 11 ] Order Accordingly.

Justice J.S. O’Neill

Released: September 13, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DUSTIN ANDERSON AND INSIA HALAI Plaintiff – and – NORTH WATERLOO FARMERS MUTAL INSURANCE COMPANY Defendants RULING ON COSTS Justice J.S. O’Neill

Released: September 13, 2012