COURT FILE NO.: C-1579-11

DATE: 2014-05-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brenda Mullin, Plaintiff

AND:

Allstate Insurance Company and NRCS Inc., Defendants

BEFORE: The Hon. Robert G.S. Del Frate

COUNSEL:

A. Patrick Wymes, for the Plaintiff

Domenic D. Nicassio, for the Defendant Allstate Insurance Company

David Murphy, for the Defendant NRCS Inc.

HEARD: April 24, 2014 in Toronto, Ontario

ENDORSEMENT on costs

[1] The plaintiff is seeking her costs as a result of successfully defending two motions brought by the defendants whereby they sought to restrain her from filing additional requests to admit.

[2] The motions required two days of hearing: one in Sudbury and one in Toronto. The submissions on costs required an additional half-day.

[3] Following the release of the reasons on the motions, the plaintiff served the Costs Outline on June 26, 2013 in which counsel claimed 90 hours at the rate of $500 per hour for a total of $45,000 and an additional $17,500 being 100 hours at the rate of $175 for his assistant. Disbursements amounted to $395.55 for a total bill of costs of $62,895.55. The proposal also included a Rule 49 offer whereby the plaintiff would accept the sum of $33,000 all-inclusive on the condition that this sum be paid within 14 days. That offer remains outstanding.

[4] The plaintiff submits that the amount claimed is reasonable considering the amount of work that was required to defend those motions. Had the plaintiff not been successful in resisting those motions, then there was a high probability that the plaintiff’s action could be dismissed since the defendants would have insisted on costs. The costs would have been such that the plaintiff could not afford to pay and accordingly, her action could be dismissed.

[5] The defendants submit that costs are in order however, the sum of $33,000 is totally unproportional to the action. They both submit that the motions were not a frivolous or vexatious exercise and that they were necessary to curb the plaintiff from harassing the defendants with constant requests to admit. They also submit that the preparation of the responding documentation consisted of an overkill and over resourcing on the part of the plaintiff’s legal staff.

[6] In Mr. Nicassio’s point of view, an award of between $7,000 and $8,000 for costs would be appropriate. In Mr. Murphy’s perspective, a $15,000 award would be reasonable. Counsel for the defendants have agreed that whatever award is made, such award is to be apportioned equally by the defendants.

[7] The overriding principle in assessing costs is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. VanBlankers v. Stewart, [2010] O.J. No. 2988, para. 38. Price J.

[8] Further, in assessing costs, the court must consider the principle of proportionality as outlined in the Rules of Civil Procedure at Rule 1.04(1.1) which states:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04(1).

Proportionality

In applying these rules the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

[9] Keeping these principles in mind, it is apparent that none of the parties would have expected a payment of some $63,000 for defending two rather unexceptional motions. The plaintiff recognized this by serving an offer to settle of $33,000 all inclusive.

[10] The plaintiff definitely had a lot to risk but I doubt that the dismissal of the action would have been the end result. The court has jurisdiction to order costs and defer payment of such costs. Although a dismissal of the action may result in extreme circumstances, I do not find that those extremes existed in the present action.

[11] No doubt there was considerable work conducted by the plaintiff’s legal team but the defendants are not obligated to pay full indemnity. Their only obligation is to pay an amount that is “fair and reasonable.” Unfortunately, the history of this action does not confirm a “fair and reasonable approach” by the parties as they have seen to wage a war of attrition. Such attitudes do not advance the litigation and as a result, the parties incur considerable costs and achieve very little results.

[12] I take into consideration the amount of time expended by the plaintiff’s legal team and conclude that it may have been overzealous in the preparation of the documentation. I also conclude that the rate of $175 per hour for an assistant is excessive and a much more reasonable rate would be in the range of $90 per hour.

[13] I consider as well that the issue argued, although novel, was not that complex but it did require some research and preparation.

[14] Considering that this motion took two days to be argued and an additional half-day on the issue of costs, I award costs in the sum $20,000 all inclusive and payable within 30 days.

The Hon. Mr. Justice R.G.S. Del Frate

Date: May 1, 2014