Court File and Parties

Court File No.: CV-10-396770
Date: 2014-07-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SCOTT MACQUARRIE, Plaintiff

AND:

NATIONAL BANK LIFE INSURANCE COMPANY and NATIONAL BANK OF CANADA, Defendants

BEFORE: Sanderson J.

COUNSEL:
Ramon V. Andal for the Plaintiff

Christine G. Carter for the Defendants

HEARD: In Writing

ENDORSEMENT re costs

[1] This is an unusual case because I found for the Plaintiffs on the primary defence put forward by the Defendants, but for the Defendants on a defence first put forward by an amendment to its Statement of Defence made in January 2013, after the discoveries had been held and the mediation had been completed. After the amendment, no further discoveries were conducted.

[2] Therefore, a majority of the costs incurred prior to the trial related to the unsuccessful defence in which the Defendants alleged that the Plaintiffs had deliberately misled the Defendants.

[3] Only about two to three hours of the 6 day trial related to the defence on which the Defendants were ultimately successful [the 90-day exclusion].

[4] I reviewed the Bills of Costs and Submissions of both parties on costs.

[5] The Defendants seek partial indemnity costs up to October 18, 2013 and substantial indemnity costs after October 18, 2013 on the basis of an offer to settle made less than seven days before the commencement of the trial. The Defendants seek costs of $71,138.62.

[6] The Plaintiffs seek $108,745.35 on a substantial indemnity basis or $87,902.50 on a partial indemnity basis.

[7] Rule 57.01(2) provides that the court may award costs against the successful party “in a proper case.” I have also considered the other factors to be considered under Rule 57.

[8] Given the lateness of the amendment regarding the defence that was ultimately successful and the allegation of fraud against the Plaintiffs on the defence that was ultimately unsuccessful, and having regard to the other factors in Rule 57, I award to the Plaintiffs the costs including disbursements incurred prior to the amendment fixed at $40,000.

[9] After the amendment, having regard to the pleading of fraud on the unsuccessful defence but also to reflect the Defendants’ success on the secondary defence, I am of the view that each party should bear their own trial costs. The counsel for the Plaintiffs estimated total trial costs on a partial indemnity basis at $50,000. Counsel for the Defendants estimated total trial costs on a partial indemnity basis at about $40,000.

[10] Given all of the above, I award costs to the Plaintiffs fixed at $40,000.00 inclusive of HST and disbursements.

Sanderson J.

Date: