ONTARIO – SUPERIOR COURT OF JUSTICE

2013 ONSC 1770

COURT FILE NO.: CV-05-287557 MOTION HEARD: FEBRUARY 21, 2013

Mary Burke

v.

The Dominion of Canada General Insurance Company

Andrew Ottaway for the defendant Monica Chakravarti for the plaintiff Richard Coutinho for the Public Guardian and Trustee

ENDORSEMENT - COSTS

Master R.A. Muir -

[1] This costs endorsement is in respect of a motion brought by the defendant pursuant to Rule 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order dismissing the plaintiff’s action for non-compliance with orders made by Master Brott on August 6, 2010 and by Master Glustein on October 25, 2011. The defendant also sought an order that the plaintiff or her litigation guardian pay certain cancellation fees and other expenses incurred by the defendant as a result of the plaintiff’s non-compliance with Master Glustein’s order.

[2] Master Brott’s order required the plaintiff to answer undertakings and questions improperly refused on her examination for discovery. Master Glustein’s order required the plaintiff to attend four separate defence medical examinations and imposed various conditions on those examinations.

[3] I released my decision on the defendant’s motion on February 28, 2013. I declined to make an order dismissing the plaintiff’s action, but I did make an order that she continue to attend the defence medical examinations as ordered by Mater Glustein and pay certain cancellation fees. I also ordered the plaintiff to address certain issues regarding her undertakings as it was unclear from the plaintiff’s evidence as to whether she had actually answered all of her undertakings as required by Master Brott’s order.

[4] As part of my endorsement of February 28, 2013, I also requested costs submissions in writing. I have now received and reviewed those costs submissions. I have concluded that it is fair and reasonable that there be no order with respect to the costs of this motion.

[5] In my view, success was evenly divided on this motion. The plaintiff was clearly in breach of Master Glustein’s order with respect to the defence medical examinations. However, I did not grant the defendant’s primary relief, being a dismissal of the plaintiff’s action. I did, however, order the plaintiff to continue to attend the defence medical examinations and pay the cancellation fees associated with her earlier non-attendances. I also ordered the plaintiff to clarify certain answers given in connection with a few of her undertakings. This divided success, along with the fact that the plaintiff has been granted an indulgence given her lack of compliance with Master Glustein’s order, leads to me to the view that it is fair and reasonable that there be no order for costs in favour of either party.

[6] I am also not prepared to make a costs order in favour of counsel for the Public Guardian and Trustee (“PGT”). In my view, the attendance by counsel for the PGT was a result of a lack of clear communication on both sides. In any event, the PGT’s attendance was brief and no material was prepared.

[7] I therefore order that there be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: March 25, 2013