ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-337

DATE: 20140321

B E T W E E N:

JAMIE DODGSON

John A. Tamming, for the Plaintiff

Plaintiff

• and -

GREAT WEST LIFE ASSURANCE COMPANY and THE BANK OF NOVA SCOTIA

William Lemay, Caroline McKenna for the Defendants

Defendants

HEARD: November 12, 13, 14, 15, 18, and 19, 2013
Judgment released January 29, 2014

ENDORSEMENT ON COSTS

[1] The plaintiff brought this action as a result of the defendant Bank denying her disability claim. The plaintiff was completely successful.

[2] Originally this action was consolidated with a wrongful dismissal action and which action was abandoned by the plaintiff.

[3] The plaintiff seeks costs throughout, on a substantial indemnity basis relying upon the actions of the Bank before and after the action was started.

[4] Alternatively, the plaintiff seeks costs on a partial indemnity basis from October, 2009 to March 19, 2012, and thereafter on a substantial indemnity basis on the grounds that the plaintiff bettered her March 19, 2012 offer of settlement.

[5] The Bank requests the plaintiff be awarded costs at a partial indemnity rate and disbursements, reduced by 50%, plus H.S.T., for the time period leading up to the plaintiff’s offer to settle in March, 2012. The reduction is sought as a result of the plaintiff’s abandonment of the wrongful dismissal action and the argument that some of the costs incurred must be attributed to the abandoned action. Thereafter the Bank concedes costs should be awarded on a substantial basis, as a result of the offer of settlement but asks they be fixed at a reasonable amount,

[6] I am not persuaded to award substantial indemnity costs to the plaintiff up to March, 2012. Partial indemnity costs are the norm and the Bank’s actions while the proper subject of criticism, were not such that an overall award of costs on the substantial indemnity basis is warranted.

[7] There is no doubt costs were incurred in relation to the abandoned action but I accept that the majority of the time docketed is applicable to the disability action. I will reduce the plaintiff’s fees, awarded at the partial indemnity scale (prior to offer of settlement) by 25%.

[8] At Tab 1A of the plaintiff’s submissions is her bill of costs on a partial/substantial Indemnity Scale. The fees claimed are $107,624.02 (including H.S.T.) and disbursements (inclusive of H.S.T. of $14,248.68).

[9] The defendant’s cost submissions include the bill of costs of their own counsel and the fees set out therein, as well as the disbursements, are in excess of those claimed by the plaintiff.

[10] In regards to the issue of proportionality, while the grossed up value of the monies to be paid to the plaintiff, as estimated by the defendant, is less than the costs claimed, the action was of tremendous importance to the plaintiff, personally. The financial risks were significant and the costs incurred justified and reasonable.

[11] I award the following costs:

On a partial indemnity scale:

$18,585.00

a substantial indemnity scale:
(after date of offer)

$70,462.50

H.S.T. on fees:

$11,576.18

Disbursements:

$13,857.85

H.S.T.:

$391.63

Total:

$114,873.16

Payable by the Bank of Nova Scotia to the plaintiff.

Bielby, J.

Released : March 21, 2014