COURT FILE AND PARTIES

COURT FILE NO.: 03-11196

DATE: 2014-04-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Simatovic, Plaintiff/Moving Party

AND:

State Farm Mutual Insurance Company, Defendant/Responding Party

BEFORE: The Honourable Mr. Justice G. E. Taylor

COUNSEL: William G. Scott, Counsel, for the Plaintiff/Moving Party

Eleonora Persichilli, Counsel, for the Defendant/Responding Party

Cost Endorsement

Introduction

[1] The plaintiff was unsuccessful on his motion to set aside the dismissal of his action by the Registrar. The parties have made written submissions with respect costs.

Entitlement

[2] The defendant, State Farm Mutual Insurance Company, successfully resisted the motion to set aside the dismissal order. The dismissal order provides that the action be dismissed “with costs”. Counsel for the plaintiff takes the position that State Farm should be limited to its costs in responding to the motion to set aside the dismissal order because it did not move promptly to quantify the costs awarded in that order. No authority is submitted in support of that proposition. I see no reason why State Farm should be deprived of the costs awarded in the dismissal order solely by reason of not moving expeditiously to have those costs assessed. I therefore conclude that State Farm is entitled to costs of the action including costs of the motion to set aside the dismissal order.

[3] There is nothing exceptional about this proceeding. State Farm is entitled to its costs on a partial indemnity basis.

Quantum

[4] I find the partial indemnity hourly rates claimed by the solicitors for State Farm to be reasonable.

[5] Counsel for State Farm seeks a payment of partial indemnity fees and disbursements in the amount of $19,947.10. Counsel for the plaintiff submits that the only costs which should be allowed are the costs of the motion which should be fixed at $5000 all-inclusive.

[6] Neither party submitted detailed dockets. The plaintiff provided summaries of the time spent by each lawyer who worked on the file under the following headings: General communications with plaintiff’s counsel and the court; General communications with client; Pleadings, including Notice of Intent to Defend, Statement of Defence, Jury Notice, Affidavit of Documents, and Notice of Examination; Review of production and undertakings; Preparation for and attendance at Status Hearings including communication with client, court and plaintiff’s counsel; Preparation for and attendance at examinations for discovery; Review of jurisprudence in preparation for motion; Communications with plaintiff’s counsel, client, court and process server regarding motion; Preparation of responding motion materials, including Affidavit, Factum, Book of Authorities, Supplemental Book of Authorities, Bill of Costs and preparation for attendance of motion; Attendance at Motion; Preparation of Cost Submissions. Unfortunately, I was only provided with a total number of hours spent by each lawyer in relation to each of the above headings. I was not advised as to what steps were actually taken.

[7] The sum of approximately $3000 is claimed under the headings of General communications with plaintiff’s counsel, the court and the client. I do not know what those communications were about nor when they occurred. Notwithstanding the position taken by counsel for the plaintiff, I find that State Farm is entitled to costs in relation to pleadings examinations for discovery and other steps related to the defence of the action prior to the service of the motion to set aside the dismissal order. State Farm seeks approximately $7700 for these steps. Again, I do not know how much time was spent on any particular step in the proceeding. I do agree with the submission by counsel for the plaintiff that 8 lawyers and one law clerk is an exceptional number of persons who were involved in this file and that there necessarily must be duplication of effort.

[8] With respect to the headings dealing with the motion, State Farm seeks partial indemnity fees of approximately $5250. Counsel for the plaintiff appears not to take serious exception to this amount as he suggests costs of the motion be limited to $5000 all-inclusive.

[9] State Farm seeks reimbursement for disbursements in the amount of $2236.64. With the exception of the amounts claimed for productions and mileage the disbursements appear to be reasonable.

[10] As I stated in my reasons for dismissing the motion, this was a straightforward case arising out of a motor vehicle accident. State Farm was obligated to defend the action and respond to the motion to set aside the dismissal order. Because I was not provided with a great deal of assistance as to the time actually spent on various steps in the proceeding, I must draw general conclusions. I find that a reasonable allowance for partial indemnity fees in relation to defending the action is $5000 inclusive of HST, a reasonable allowance for fees for the motion is $5250 also inclusive of HST. Lastly, I find that a reasonable amount for reimbursable disbursements is $1750.

Conclusion

[11] For these reasons, the plaintiff is ordered to pay State Farm its costs of the action and the motion fixed in the amount of $12,000 inclusive of disbursements and HST. These costs are payable forthwith.

G. E. Taylor J.

Date: April 29, 2014