NEWMARKET

COURT FILE NO.: CV-11-107092-00

DATE: 20140115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Thompson, Plaintiff

AND:

Rogers Communications Inc., Coseco Insurance Company and Intact Insurance Company and Intek Communications Limited, Defendants

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:

Laura Thompson, Self-represented

J.D. Murphy, Counsel for the Defendant, Rogers Communications Inc.

K. Kamra, Counsel for the Defendant, Coseco Insurance Company

C.A. Leyland, Counsel for the Defendants, Intact Insurance Company and Intek Communications Limited

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The plaintiff, Laura Thompson (Thompson), brought a motion to set aside a full and final release which she entered into as part of a settlement agreement. The motion was heard October 24, 2013. For reasons issued November 12, 2013, the respondents were successful on the motion, upholding a settlement agreement which obligated them to pay Thompson $80,000.

[2] The defendants were invited to make submissions as to costs and have now done so. Ms. Thompson has responded to those submissions.

[3] The defendant, Rogers Communications Inc. is not seeking costs. The defendants, Intact Insurance Company and Intek Communications Limited also do not seek costs.

[4] The defendant, Coseco Insurance Company, seeks costs in the amount of $8,000 on a partial indemnity basis, plus an additional $300 for preparation of Costs Submissions.

[5] Coseco submits that pursuant to the Minutes of Settlement, it owes the plaintiff $37,500 and any award of costs in its favour should be subject to a deduction from that sum otherwise payable to Thompson.

[6] Coseco submits that its costs on a substantial indemnity basis were $16,599, and $10,786 on a partial indemnity basis. However, it only seeks the sum of $8,300, all inclusive.

[7] Ms. Thompson submits that there should be no award of costs to the defendant, Coseco on the basis that “the amount sought is not reasonable and unjust”.

[8] Ms. Thompson’s response does not focus on costs principles sought by a successful party, but rather, is an attempt to re-litigate the issues determined on the motion. However, she does acknowledge that the defendant lawyers were “three highly skilled and well-versed lawyers”. Her claim in submissions that the lawyers were involved in unethical conduct was unsupported in the affidavit materials filed on the motion, and therefore I reject that as a submission that ought to be considered with respect to costs.

ANALYSIS

[9] It is well settled that s.131 of the Courts of Justice Act, R.S.O. 1990, Ch.c.43 provides considerable judicial discretion on the issue of fixing costs. In addition, Rule 57.01 of the Rules of Civil Procedure sets out various factors that a court can consider in exercising this discretion.

[10] In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, [2009] O.J. No. 4236, Epstein J.A. reviewed the leading authorities with respect to the reasonableness principle and stated at para. 52:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party, rather than the exact measure of the actual costs of the successful litigant.

[11] As the successful parties, the defendants are presumptively entitled to costs. There is nothing in the submissions of Ms. Thompson that convinces me that that basic principle ought not to apply here. I have reviewed the costs outline of the defendant, Coseco, and I am satisfied that the rates charged and the hours spent are reasonable under the circumstances given the importance of this motion. I therefore award costs to the defendant, Coseco in the amount of $8,300, all inclusive. It is further ordered that Coseco may deduct this amount from the amount owing to Thompson pursuant to the Minutes of Settlement, therefore reducing its obligation by $8,300.

MULLIGAN J.

Date: January 15, 2014