Ontario Superior Court of Justice
CITATION: Ontario (Minister of Finance, Motor Vehicle Accident Claims Fund v. Chartis Insurance Company of Canada, 2015 ONSC 3380
COURT FILE NO.: 14-49097
DATE: 2015-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen in Right of Ontario As Represented by the Minister of Finance (Motor Vehicle Accident Claims Fund)
Applicant
Chartis Insurance Company of Canada
Respondent
Janis P. Criger, for the Applicant
J. Claude Blouin, for the Respondent
HEARD: Written Submissions
Ruling on Costs
[1] I rely on the facts and analysis set out in my judgment released on May 12, 2015.
[2] Chartis claims that its lawyers charged it $10,072.45 inclusive of GST and disbursements for the work that they did on this appeal. Chartis claims partial indemnity costs in the amount of $7500 inclusive of GST and disbursements. This is 75% of the amount that the lawyers for Chartis charged it.
[3] The Fund does not dispute the hours of work which the lawyers for Chartis claim that they spent, the rates that they claim, that the issue at stake was important to the parties, the amount charged to Chartis by its lawyers or that costs at a partial indemnity scale should follow the event. The Fund states that the appeal was not complex and the percentage of the partial indemnity costs claimed by Chartis to the total amount charged to its client is excessive. It suggests a figure of $5,000.
[4] The issue at stake was not only important to the parties given that the no fault benefits were over $800,000 but also to the motor vehicle accident insurance industry in Ontario. I cannot agree that it is accurate to describe the appeal as “not complex”. The appeal was scheduled as a long motion and was argued for over ½ day. Both counsel filed detailed factums and leading cases from the Court of Appeal and Supreme Court of Canada. There was no case directly on point. Each had an interpretation of the principles in these cases as applied to the insurance contract at issue which supported the position of their client. The case was well presented by both counsel.
[5] Rule 57.01 states the following:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
Counsel for Chartis provided me with a copy of the accounts that he sent to his client and a statement of the amount that applied to this proceeding which counsel for the Fund accepts. I am, therefore, able to consider the principle of indemnity referred to in R. 57.01(1) (0.a). I do not however have a bill of costs from counsel for the Fund of the amount that she would have charged her client or the amount that she would have claimed on behalf of the Fund for the appeal by way of costs if she had been successful.
[6] I am, therefore, unable to consider R. 57.01(0.b). In Risorto et.al. v. State Farm 2003 43566 (ON SC), [2003] O.J. No. 990 Winkler J. (as he then was) stated the following:
[10] The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no [page139] more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission.
In Boucher v. Public Accounts (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 the Court of Appeal in the judgment of Justice Armstrong stated the following:
[38] In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor. … (citations omitted)
[7] Given the importance of the issue to not only the parties but also to the motor vehicle insurance industry, the time spent by senior counsel, the high quality of the written material and oral submissions by both counsel and the complexity of the issue, I am the view that the amount suggested by Chartis is a fair and reasonable amount.
[8] There will be an order that the Fund pay Chartis $7500 in costs inclusive of GST and disbursements within 30 days.
P.B. Hambly, J.
Released: May 27, 2015
CITATION: Ontario (Minister of Finance, Motor Vehicle Accident Claims Fund v. Chartis Insurance Company of Canada, 2015 ONSC 3380
COURT FILE NO.: 14-49097
DATE: 2015-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen in Right of Ontario As Represented by the Minister of Finance (Motor Vehicle Accident Claims Fund)
Applicant
Chartis Insurance Company of Canada
Respondent
REASONS FOR JUDGMENT
P.B. Hambly, J
Released: May 27, 2015