BARRIE

COURT FILE NO.: 09-1544

DATE: 20130227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NICOLE ROY also known as NICOLE TYRER also known as MARIE ROY also known as MARIE TYRER, Plaintiff

AND:

LEE LAPOINTE and 1391061 ONTARIO LTD. operating as CARPINO AUTO SALES and ALLSTATE INSURANCE COMPANY also known as ALLSTATE INSURANCE COMPANY OF CANADA, Defendants

BELAIRDIRECT INSURANCE, Third Party

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL: M. Lemieux Counsel, for the Plaintiff

M. McIsaac Counsel, for the Statutory Third Party

WRITTEN ARGUMENT CONSIDERED: February 27, 2013

ENDORSEMENT

[1] When I released judgment on February 4, 2013, I directed “the Plaintiff may submit two pages of written argument on costs by February 11, the statutory third party submit two pages of written argument on costs by February 18 and the Plaintiff rely by February 21, 2013. Parties may attach any offers and a bill of costs. These are all to be delivered to the S.C.J. judicial secretaries in Barrie, to my attention. If I am unable to rule without oral submission I will convene a conference call through the Trial coordinators.”

[2] The Plaintiff seeks partial indemnity costs of $5,935.89 as successful party on the statutory Third Party’s motion.

[3] The statutory Third Party submits that its preparation costs of $9,651.90 for the Plaintiff’s motion for directions exceeded it costs of $6,491.74 for its own motion and claim a net payment of costs from the Plaintiff in the amount of $3,150.

[4] I outlined the way the motions came forward in my Endorsement.

[5] The issue of set off is expressly live. The Plaintiff’s motion was withdrawn after the statutory third party motion had been argued. I agree that some account must be taken for the extra work on the motion that did not proceed.

[6] However, the motions were on the same subject. Put simply, the statutory third party sought specific relief to get their position back into the litigation. Depending on the result of that, the motion for directions asked what should happen and what were the implications.

[7] Both concerns arose from conduct not of the Plaintiff. Both parties found themselves in uncharted waters because of the proceedings that were the subject of the statutory third party’s motion. The research for the directions was therefore inherent in the ongoing conduct of the litigation. The statutory Third Party would have to do this research to conduct their case hereafter.

[8] That reality probably explains the extravagant time spent.

[9] The Plaintiff doesn’t have to pay for all that.

[10] The Plaintiff succeeded in the substantive issue of the day. Both parties had to research the next steps but the motion for directions triggered a level of formality and document preparation that would not have been required for the statutory third party’s own purposes. For that aspect they should have partial indemnity costs.

[11] Obviously these circumstances do not lend themselves to a formulaic calculation. I remind myself I am fixing costs, not assessing.

[12] I fix the Plaintiff’s costs, after set off, payable by the statutory third party at $3,500 all in.

EBERHARD J.

Date: February 27, 2013