SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 06-CV-307354 PD3
DATE: 2014-12-29

RE: Anthony Bailey, Plaintiff

AND:

State Farm Mutual Automobile Insurance Company, Defendant

BEFORE: Justice Matheson

COUNSEL:
Plaintiff self-represented

Michael Smith, for the Defendant

HEARD: In writing.

ENDORSEMENT

[1] This endorsement addresses the costs of this action, which was dismissed by my trial judgment released September 16, 2014. The trial included fourteen trial days, some of which were partial days, with gaps at the plaintiff’s request. That trial time also included preliminary motions by both parties.

[2] Costs submissions were received in writing. The plaintiff requested and was granted a number of extensions of time in that regard and continued to send new versions of his submissions well after the ultimate deadline. I have nonetheless considered those later versions. The defendant was given an opportunity to reply and did not do so.

[3] I have taken the written submissions from both parties into account, including the related case authorities, and the factors in Rule 57.01 of the Rules of Civil Procedure.

[4] The defendant, as the successful party, seeks its costs of about $52,000 on a partial indemnity basis, inclusive of interest and costs. The plaintiff disputes that costs claim and seeks costs himself, in a similar amount.

[5] The plaintiff asks that the defendant not receive costs due to its conduct and the conduct of its counsel. I will not recite all of the reasons advanced by the plaintiff, all of which I have considered, but chief among them is his position that State Farm should have allowed more time to negotiate with the plaintiff, and instead “unfairly duped” him into bringing this action. As well, the plaintiff relies on many allegations against the defendant and defendant’s counsel regarding disclosure and various steps taken (or not taken) in the conduct of the action and trial. Most of these matters were raised at trial as part of the unsuccessful bad faith claim but may be raised again now.

[6] The complaint that the plaintiff was duped is based upon a submission that the plaintiff still had time before the expiry of a six-year limitation period and the defendant ought to have given the plaintiff advice to that effect. This submission does not justify a denial of costs. It was not the defendant’s obligation to give the plaintiff legal advice. In any event, the defendant was relying on a one-year limitation period, not the six years suggested by the plaintiff, as it was entitled to do. Mr. Kope testified that the defendant did not attempt to settle this matter when the plaintiff re-surfaced because it had paid what was owed and because of the one-year limitation period, which had long since passed. Nor was it the defendant’s obligation to give an extension of time to allow for negotiation.

[7] The plaintiff was not forced to sue in circumstances that would lead to a denial of costs or a costs award against the defendant as the successful party.

[8] The many other grounds advanced to deny costs are similarly insufficient. However, there was some defence conduct that did unnecessarily increase the costs of the trial. The failure to deliver a proper affidavit of documents is one example noted in my judgment. The manner in which the plaintiff’s undertakings were addressed is another example. In addition, the manner in which the defendant attempted to pursue its motions at the outset of trial created inefficiencies, as did some of the defendant’s other choices about how to deal with this self-represented plaintiff.

[9] These matters did not rise to the level of bad faith, but did increase the trial time unnecessarily. The conduct does not, however, displace the ordinary rule that the successful party should have costs. It is more appropriately dealt with in the quantification of costs.

[10] The defendant’s submissions also misstate the course of events in at least one respect. They state that the plaintiff “did not make any offers to settle” yet the plaintiff has produced at least one offer and other related correspondence. The defendant made no reply to this material, either to explain or correct the above statement, which is troubling. I have taken this conduct into account.

[11] On the subject of the quantification of the defendant’s claim for costs, the plaintiff challenges the amount of time spent and the suggestion that the plaintiff was solely responsible for trial delays and inefficiencies that increased the costs. In my view, each side played a part in the inefficiencies at trial. The defendant was partly responsible.

[12] I conclude that a substantial reduction of the amount claimed for costs is appropriate. On a review of the defendant’s bill of costs, and factoring in both parties’ submissions and the other relevant factors, I exercise my discretion to fix costs at $25,000, all inclusive.

[13] To summarize, this action is dismissed and the plaintiff shall pay costs to the defendant fixed at $25,000. I require that the defendant promptly prepare the form of judgment, have it issued and entered, and provide a copy by email to the plaintiff. Approval as to form and content is dispensed with.

Justice Matheson

Date: December 29, 2014