Pearo v. Vezina et al., 2015 ONSC 1957

Court File No. CV-10--4837

Superior Court of Justice

Endorsement

Defendant: James Vezina Counsel: James V. Maloney

Defendant: Economical Mutual Insurance Company Counsel: Patricia B. Carroll

[1] I have considered the Cost Submissions dated March 5, 2015 filed by Counsel for James Vezina and also those filed by Counsel for Economical Mutual Insurance Company dated March 9, 2015, together with the Costs Outline for James Vezina dated March 3, 2015. James Vezina seeks an award of costs in the amount of $4,171.65; payable only by the Economical Mutual Insurance Company.

[2] I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matters, as well as the application of the principle of proportionality. In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario(2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[3] Notwithstanding numerous requests, both Glenn Paul and the Economical Mutual Insurance Company would not consent to the release of James Vezina; until March 2, 2015 and March 3, 2015 respectively. As a result, James Vezina was forced to incur costs of preparing a Motion Record, Factum and Book of Authorities in support of his Motion for Summary Judgment scheduled for hearing on March 9, 2015. James Vezina has chosen not to pursue costs from Glenn Paul, whose consent to the relief requested in the Motion was communicated one day prior to the consent of Economical Mutual Insurance Company. No attendance was therefore required on the Motion by any party.

[4] It is my view that an award of costs in the amount of $1,000.00 payable to the successful party may have been fair and reasonable, and warranted, in these specific circumstances. However I am concerned here that Counsel for James Vezina chose to pursue costs only from the Economical Mutual Insurance Company, and also that their Cost Submissions to me twice discloses a prohibited statement apparently made at the Pre-Trial Conference by Justice Karam.

[5] Therefore, there shall be no costs arising out of this Motion scheduled for March 9, 2015.

March 26, 2015

The Honourable Mr. Justice D. J. Nadeau