ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 49090/07
DATE: 2014-03-03
BETWEEN:
ANDREW MIKOLIC
Frank Burns, for the Plaintiff
Plaintiff
- and -
DAVID TANGUAY and CORRIE ALBANO
Brian Banfield, for the defendant, Corrie Albano
Defendant
Arrell J.
JUDGMENT ON COSTS
Introduction:
[1] This action arises out of a motor vehicle accident which occurred on June 10, 2005. The case was tried over a week and a half before a jury on the issues of damages and a seatbelt defence.
[2] The jury awarded the following:
a) General Damages $ 35,000.00
b) Past Loss of Income $ 20,000.00
c) Future Loss of Income $ 30,000.00
d) Cost of Future Care $ 15,000.00
Total $100,000.00
[3] The jury also found the plaintiff 20% contributorily negligent for failing to wear a seat belt.
[4] The parties agreed that the net amount for general damages, after deduction of the statutory deductible in place at the time of this accident and reducing that amount by the contributory negligence, is $4,000.00 plus interest payable to the plaintiff under that head of damage. The parties also agreed that the past loss of income is zero after the deduction of the income replacement benefits paid by the A.B. insurer.
[5] I ruled on November 26, 2013 that there were no further deductions from the award for future loss of income and future care costs. I therefore calculate that the net amount payable to the plaintiff on this judgment is $49,000.00 plus interest on the $4000.00 of general damages.
[6] The parties were invited to agree on costs, however, not surprisingly they have been unsuccessful and have provided me with written submissions.
Offers:
[7] The plaintiff made a rule 49 offer on September 3, 2013 in the amount of $250,000.00 plus costs. The defendant made a rule 49 offer on May 31, 2012 of $85,000.00 plus interest on the full amount plus partial indemnity costs up to the date of the offer. Thereafter, the defendant sought partial indemnity costs.
Position of the Parties:
[8] Plaintiff’s counsel, in his submissions, argues strenuously that the verdict of the jury was unreasonable and unfair and as such the plaintiff should be awarded his partial indemnity costs throughout. As well counsel submits that the Plaintiff is impecunious. He requests partial indemnity of costs of $65,000.00 plus taxes and disbursements for a total of $170,500.00 for the trial proper.
[9] The defendant urges me to award partial indemnity costs to the plaintiff up to the date of the defendant’s offer and partial indemnity costs to the defendant thereafter. He suggests the Defendants costs should be $68,851.69 for fee plus H.S.T. and disbursements for a total of $104,113.98 from May31, 2012 to date.
Analysis:
[10] Plaintiff’s counsel made lengthy submissions on the unreasonableness of the jury’s verdict. That is ultimately for another tribunal to decide. Suffice it to say this case was about credibility and chronic pain, for the most part, and the jury made its award after hearing all of the evidence counsel put in front of them. I am of the view that there was evidence available to the jury, if accepted, that would allow them to render the verdict that they did.
[11] There is no doubt that the defendant received a judgment from the jury that was substantially more favourable than her offer.
[12] I agree with the submissions of plaintiff’s counsel that a trial judge does have the discretion to award costs to the plaintiff if it is found that the jury’s verdict was unreasonably low and that the plaintiff was impecunious as a result of the negligence of the defendant. I disagree that the facts of the case at bar fall into that category. The court of appeal will have to decide if the verdict was unreasonable and there is no evidence before me to substantiate that the plaintiff is impecunious. Indeed plaintiff’s counsel advises he was paid AB benefits of $258,000.00 prior to the trial.
[13] The purpose of Rule 49 is to encourage parties to make reasonable offers to settle by imposing cost consequences on those who do not reasonably assess the actual value of the case in advance of trial. Lawson v. Viersen, 2012 ONCA 25 at para. 20
[14] Costs consequences are result oriented. Pursuant to rule 49.10, the terms of the offer are measured not against the claim advanced but rather against the judgment obtained in order to determine whether such offer is “as favourable as”, “more favourable than”, or “less favourable than” the judgment. Lawson v. Viersen, supra. at para. 21
[15] I have reviewed the factors set out in Rules 57.01(1) and 49, as well as S.131 of the Courts of Justice Act, R.S.O. 1990, C. 43 being the authorities for which the award of costs are governed.
[16] Rule 49.10(1) states as follows:
“Defendant’s Offer
(2) Where an offer to settle,
a) is made by a defendant at least seven days before the commencement of the hearing;
b) is not withdrawn and does not expire before the commencement of the hearing;
and
c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle and the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.” (Underlining is mine)
[17] The 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] In my view no such considerations are applicable to the case at bar.
[18] The 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 defendant will have her costs from the date of her offer on a partial indemnity basis and the plaintiff will have his costs on a partial indemnity basis up to the date of the defence offer.
[19] As 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.”
[20] The plaintiff urges me to find that the costs requested by the defence of $104,000.00 is excessive. He argues that the consent issue was without merit; the plaintiff co-operated on the Kijiji and internet searches and that $1000.00 per day for trial is adequate as is $10,000.00 for preparation. I find these arguments to be without merit, especially when plaintiff’s counsel is claiming almost $40,000.00 for preparation up to trial and 108 hours for trial being $32,400.00. As well plaintiff’s counsel refused to admit the authenticity of the Kijiji and internet searches.
[21] The amount for fees suggested by the defence of $68,851.69 from the date of its offer to the end of the trial is reasonable given the modest hourly rates being charged and the time expended. I do find some of the disbursements for the fees charged for attendance only by some of the defence doctors to be unreasonable given the time they were actually required in court. For example, I have no information before me to justify a charge by Dr. Axelrod of $7975.00, Dr. Waisman at $6554.00, or Mr. Kodsi, the engineer, at $4108.00. I set the defence costs at $95,000.00 inclusive of fees, taxes and disbursements as being fair and reasonable under all the circumstances.
[22] Plaintiff’s counsel submits that he incurred costs from the start of the action to the date of the defence offer in the amount of $92,856.00 inclusive of taxes and disbursements. Disbursements of almost $20,000.00 are claimed for experts who never testified and whose conclusions were never agreed to by the defence. Approximately $25,000.00 is claimed as costs for including the OEF insurance carrier. Such an amount is excessive as is the photocopying bill. I conclude that $65,000.00 inclusive of taxes and disbursements is fair and reasonable for the plaintiff’s partial indemnity costs up to the date of the defence offer.
[23] I decided two motions after the trial. The first on threshold and the second to settle the judgment. Both motions were essentially done in writing with written submissions and books of authorities. The plaintiff was successful on both motions and he will have his partial indemnity costs which I fix at $7,000.00 for both motions inclusive of disbursements and taxes.
Arrell, J.
Released: March 3, 2014
COURT FILE NO.: 49090/07
DATE: 2014-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW MIKOLIC
Plaintiff
– and –
DAVID TANGUAY and CORRIE ALBANO
Defendants
REASONS FOR JUDGMENT
ARREL J.
HAS:mw
Released: March 3, 2014
[^1]: Bell 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]: 1318706 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