ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-27773
DATE: 2013-09-20

B E T W E E N:

Valmire Yelda

Robert Findlay, for the Plaintiff

Plaintiff

• and -

Thi Duyen Vu, also known as Peter Vu, Diane Vu, Selena Vu, also known as Selena Ferreira Vu, or, Ines Vu, Ivo Curzi, and State Farm Mutual Automobile Insurance Co.

Brian Bangay, for the Defendants Selena Vu and Peter Vu

Christopher Missiuna, for the Defendant Curzi

Defendants

The Honourable Mr. Justice H. S. Arrell

JUDGMENT ON COSTS

Introduction:

1The defendants each brought a motion for summary judgment to dismiss the claim of the plaintiff on the basis that the applicable limitation period has expired. They were successful and the case was dismissed. I invited the parties to provide me with written submissions on costs if they were unable to agree. I have now received written submissions from the defendants but nothing was filed on behalf of the plaintiff.

Facts:

2The plaintiff was a passenger in the Vu vehicle when it was involved in a motor vehicle accident on July 19, 2002. The accident was therefore eleven years ago. She issued her claim for damages on May 25, 2011. The pleadings were complete and discoveries had been held.

3This accident involved a 2 car collision with both defendants alleging they had a green light. As such, both damages and liability were live issues.

4At the time this accident occurred the plaintiff had to meet what is commonly referred to as “the threshold” which was defined in the legislation as “a permanent serious impairment of an important physical, mental or psychological function”.

5The legislation and case law imposes a 2 year limitation period from the date the plaintiff knew or ought to have known that a cause of action existed through the exercise of reasonable diligence.

Limitations Act, S. 5

Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 (S.C.C.)

6The test therefore is whether the plaintiff had actual knowledge that she may have suffered a serious and permanent injury from the accident, or if she did not, whether she exercised due diligence in investigating the possibility that she had such a claim. I concluded she had not exercised due diligence and dismissed her action.

7The defendant Curzi seeks costs on a substantial indemnity basis of $18,701.23 and a partial indemnity basis of $13,188.01. The defendant Vu seeks costs of $11,936.21 on a partial indemnity basis.

8Significantly, the plaintiff submitted a cost outline before the motion, had she been successful, in the amount of $13,215.05 for the motion alone. The defendants, of course, seek costs for the dismissal of the entire action which has been ongoing since May 2011. Cost outlines were exchanged by the parties prior to the motion so all parties were well aware of each other’s expectations on costs should they be successful.

9I have not been advised of any offers that had been filed that would impact costs.

10Section 131 of the Courts of Justice Act provides that “costs of and incidental to 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.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs. I have considered those factors.

11The default rule, however, in resolving costs issues is that the successful party is entitled to its costs.¹ The principle that costs follow the event should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct of proceedings.² No such considerations are applicable to the case at bar.

12Rule 57.03(1) provides that unless the Court is satisfied that a different order would be more just, the Court shall fix the costs of the motion and order them to be paid within 30 days; or in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.³

13On the plain wording of this Rule, the onus is on the plaintiff to demonstrate that there is some compelling reason why the Rule should be departed from. No such submissions have been made.

14The Court of Appeal has consistently held that to deprive a successful party of costs is exceptional. Northwood Mortgage Ltd. V. Gensol Solutions Inc. (2005), 2005 793 (ON CA), 3 B.L.R. (4th) 322 (OCA), at para. 6; Georgian Bluffs (Township) v. Moyer, [2012] ONCA 700. There are no such exceptional circumstances with the case at bar and the defendants will have their costs.

15The defendants urge me to award substantial indemnity costs. I conclude that substantial indemnity costs should only be awarded on rare occasions to defendants to mark a court’s disapproval of a party’s conduct during litigation.

Prinzo v. Baycrest, (2002) 600.R (3d) 474 (C.A.)

16I have concluded that the plaintiff’s argument was not persuasive. I do not, however, go so far as to rule it was so egregious as to be worthy of sanction. I therefore conclude that the defendants will have their costs on a partial indemnity basis.

17As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

18I conclude that the amounts requested by the defendants, on a partial indemnity basis, are fair and reasonable as their costs incurred defending the entire action and certainly well within the range that the plaintiff would have expected to pay if the action was dismissed as it ultimately was.

Conclusion:

19The plaintiff will pay to the defendant Curzi his costs fixed in the amount of $13,188.01 inclusive of disbursements and taxes within 30 days. The plaintiff will pay to the defendants Vu their costs fixed in the amount of $11,936.21 inclusive of disbursements and taxes within 30 days.

Arrell J.

Released: September 20, 2013

COURT FILE NO.: 11-27773

DATE: 2013-09-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Valmire Yelda

Plaintiff

• and –

Thi Duyen Vu, also known as Peter Vu, Diane Vu, Selena Vu, also known as Selena Ferreira Vu, or, Ines Vu, Ivo Curzi, and State Farm Mutual Automobile Insurance Co.

Defendants

Footnotes

1. 1Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 OR (3d) 135 (CA); St. Jean (Litigation guardian of) v. Cheung 2009 ONCA 9
2. 21318706 Ontario Ltd. v. Niagara (Municipality) (2005), 2005 16071 (ON CA), 75 OR (3d) 405 (CA) at paras. 48-52; 394 Lakeshore Oakville Holdings Inc. v. Misek 2010 ONSC 7238 at para. 14
3. 3Rules of Civil Procedure. Rule 57.03(2)