Forsythe v. Westfall, 2015 ONSC 1725

CITATION: Forsythe v. Westfall, 2015 ONSC 1725

COURT FILE NO.: CV-14-502989

DATE: 20150317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RENNIE FORSYTHE

Plaintiff

– and –

MICHAEL WESTFALL, JOHN DOE, JEVCO INSURANCE COMPANY and INTACT INSURANCE COMPANY

Defendants

Alan L. Rachlin for the Plaintiff

Tracy Brooks for the Defendant Michael Westfall

HEARD: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

Background

1This is a costs decision following a motion in which I held that Ontario does not have jurisdiction simpliciter against the defendant Michael Westfall. See Forsythe v. Westfall, 2015 ONSC 758.

2The factual circumstances of the case are novel.

3As described in my Reasons for Decision, in this Ontario action, the Plaintiff Rennie Forsythe, who is a resident of Ontario, was injured in a motor vehicle accident in British Columbia. Ms. Forsythe was a passenger on a motorcycle owned and driven by Mr. Westfall, who is a resident of Alberta. A peculiar feature of the case is that while British Columbia has a locality-connection to the accident and to some of the witnesses to the accident and possibly to a John Doe defendant, it has no in personam-connection to Ms. Forsythe or Mr. Westfall, both of whom were visiting British Columbia and who will have to visit it again for any trial of the tort claim. Ontario’s connection to the case is that Ms. Forsythe and her personal automobile insurer are located here and most of her medical treatment for her injuries was received here.

4Ms. Forsythe sued Mr. Westfall in Ontario and in British Columbia with a fallback action.

5Ms. Forsythe sued her personal insurer, Intact Insurance Company, in Ontario as she was contractually obliged to do. Her claim against her insurer is based on her Ontario Owner's Automobile Insurance Policy that includes an OPCF 44R Family Protection Change Form, which provides coverage for underinsured and uninsured drivers.

6As considered in my Reasons for Decision, there will be a matrix of complexities determining whether there is insurance coverage for Ms. Forsythe for her tort claim. The solution of those complexities will come later depending on the determinations in the lawsuits in British Columbia and Ontario, but for the moment, Mr. Westfall was the successful party on the motion in Ontario, and he now claims $25,812.30, all inclusive, for the costs of the Ontario action.

Submissions on Costs

7For numerous reasons, Ms. Forsythe submits that there should be no order as to costs. In the alternative also for numerous reasons, she submits that any costs should be substantially less; i.e. in the $2,000, all inclusive range.

8For present purposes I need not address Ms. Forsythe’s numerous arguments because I am persuaded by one particular argument that is found in paragraph 13 of her written costs submissions under the heading “The Importance of the Issues,” where she submits:

13. It is respectfully submitted that this motion involved a novel issue, as there were no post Van Breda v. Village Resorts Ltd., 2012 SCC 17, 2012 CarswellOnt 4268 (S.C.C.) decisions in which there was no defendant resident in the jurisdiction of the accident and none which considered the significance of s. 5.6.3 of the Uninsured Automobile Coverage and s. 9 of the Family Change Form. The novelty of the issue militates in favour of an order that there be no costs of the motion.

Analysis and Conclusion

9I agree with this submission and I think it is fair in the circumstances of this case to make no order as to costs. It was, or should have been, within the reasonable expectations of the parties that the court would make an order that the parties each bear their own costs for a complex motion with novel problems.

10The motion was reasonably brought and reasonably resisted. Accordingly, I make no order as to costs.

Perell, J.