Uggenti v. The City of Hamilton, 2013 ONSC 7990

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 04-12153 (Hamilton)
DATE: 2013/12/31

RE: Bruno Uggenti and Patricia Uggenti (Plaintiffs) v. The City of Hamilton (Defendant)

BEFORE: The Honourable Mr. Justice R.A. Lococo

COUNSEL: Helen Pelton, for the Plaintiffs
Deborah Berlach, for the Defendant

HEARD: By written submissions dated December 2, 2013 and December 5, 2013

E N D O R S E M E N T – C O S T S

1Bruno Uggenti and Patricia Clarke (formerly Uggenti) were the Plaintiffs in a personal injury action against the City of Hamilton. By Endorsement dated October 7, 2013,¹ I dismissed the appeal of the City of Hamilton against the arbitration decision of the Honourable Eugene Fedak which found the City fully liable and awarded damages to the Plaintiffs. Costs of the appeal were left to be determined based on written submissions.

2In their written submissions, it was common ground between the parties that the Plaintiffs, as the successful parties on the appeal, should be awarded costs. The parties disagree, however, on the scale and quantum of costs.

3The Plaintiffs argued that they should be awarded costs on a full indemnity basis, based on egregious conduct on the part of the City. The Plaintiffs have submitted a Bill of Costs claiming fees and disbursements exceeding $60,000, which included time spent on motions before the Court of Appeal before the parties ultimately agreed that the appeal should have been brought in the Superior Court of Justice rather than the Court of Appeal.

4The City’s position is that there is no reason in this case to depart from the expected result of awarding costs to the successful party on a partial indemnity basis. The City also disputed the appropriateness of some of the amounts claimed, arguing that the total costs award should not exceed $20,000.

5The Plaintiffs did not take issue with the City’s conduct during the appeal before this Court, but relied on the conduct of the City throughout the case taken as a whole to justify costs on the highest scale. The Plaintiffs took particular exception to the fact that at a private mediation in October 2010, the parties agreed in principle to settle the case for $425,000, considerably less the total amount ultimately awarded by the arbitrator. This agreement in principle was subject to the approval of City Council, who ultimately rejected the settlement in January 2011, more than three months later. The Plaintiffs also relied on the City’s ultimate decision to appeal the arbitrator’s decision, which the Plaintiffs’ written decision described as unfathomable and without any reasonable hope of success.

6Having considered the Plaintiffs’ arguments, I have concluded that it is appropriate to award costs on a partial indemnity basis in this case. In my view, the Plaintiffs raised some arguable issues on the appeal, which took the matter out of the realm of a foregone conclusion. As well, while it is unfortunate for all concerned that the City did not settle the case after the mediation, the agreement in principle reached at that time was subject to the approval of City Council. City Council was within its rights to reject the agreement, however unwise that decision ultimately proved to be. However, in my view, the resulting delay in resolving this matter on a reasonable basis, while not justifying a full or substantial indemnity costs award, is a matter I may properly take into account in determining the amount of partial indemnity costs.

7I have reviewed the Plaintiffs’ Bill of Costs, and considered the City’s written submissions, which included a detailed critique of certain of the charges. I found that the latter approach was of significant assistance in determining an amount for costs that would be fair and reasonable in the circumstances. As noted by the Ontario Court of Appeal in Zesta Engineering Ltd. v. Cloutier,²

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.

8That being said, I agree with the City that it would not be appropriate in the circumstances to include any time spent on the motion before the Court of Appeal to extend the time for filing an appeal, which on a full indemnity basis exceeded $7,000. In this regard, Justice Rouleau ordered that there would be no order as to costs of that mtion. I see no basis for revisiting that issue in determining the costs of this appeal.

9In the circumstances of this case, I fix the Plaintiffs’ costs at $30,000 inclusive of disbursements and tax, payable by the City within 30 days.

The Honourable Mr. Justice R.A. Lococo

Released: December 31, 2013

COURT FILE NO.: 04-12153 (Hamilton)
DATE: 2013/12/31

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

Bruno Uggenti and Patricia Uggenti

Plaintiffs

• and -

The City of Hamilton

Defendant

BEFORE: The Honourable Mr. Justice R.A. Lococo

Footnotes

1. 12013 ONSC 6162.
2. 22002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at para. 4.