SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: CV-11-426024
DATE: 20131113

RE: Teodoro Abarca, Magaly Abarca and Jorge Leiva by his Trustee in Bankruptcy, Mathew & Associates Ltd., and Maria Leiva by her Trustee in Bankruptcy, Mathew & Associates Ltd., and Brunilda Munoz

Plaintiffs

• and -

Sandra Vargas, The Wawanesa Mutual Insurance Company

and Economical Mutual Insurance Company

Defendants

• and –

The Wawanesa Mutual Life Insurance Company added by Order

pursuant to Section 258(14) of the Insurance Act, R.S.O., 1990 C.1.8

Third Party

BEFORE: The Honourable Madam Justice Wendy Matheson

COUNSEL: William G. Scott, for the Plaintiffs

George Kanellakos, for the Defendant, Economical Mutual Insurance Company

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] By decision released October 18, 2013, I granted the motion brought by the defendant, Economical Mutual Insurance Company, asking that the claim against it be struck out as an abuse of process. Economical, as the successful party, seeks its costs.

[2] Economical seeks a total of $10,000 for costs of the motion, the action and the preparation of written costs submissions. It does so based upon a bill of costs delivered after the motion was decided, which slightly exceeds the above amount. The bill of costs is on a partial indemnity scale. Economical also served a bill of costs before the motion that covered only the motion, not the action or the costs submissions. That bill totaled $5,376.80.

[3] In addition to relying on the general principle that the amount should be fair and reasonable, Economical relies on my finding that the claim against it is an abuse of process, and relies on facts regarding the conduct of the parties that underlie that finding.

[4] The plaintiffs rely on the first bill of costs submitted by Economical, and have also filed the bill of costs they prepared for the motion, which totals $4,499.89. With respect to the costs of the action, plaintiffs’ counsel correctly observes that some of the activities Economical claims for are not properly the subject of a party and party costs award. Plaintiffs’ counsel submits that an appropriate all-inclusive award would be $5,500.

[5] The range of the two bills of costs dealing with the motion alone is about $4,500 to $5,400 on a partial indemnity scale. Bearing in mind the facts that contributed to my ruling on the motion, I fix Economical’s costs of the motion at $5,400, plus $300 for the preparation of written costs submissions and $1,000 for costs of the action, totaling $6,700, inclusive of disbursements and HST.

W. Matheson J.

DATE: November 13, 2013