Forestall v. Carroll, 2015 ONSC 3416

Forestall v. Carroll, 2015 ONSC 3416

COURT FILE NO.: 07-CV-338083PD2

DATE: 20150528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MAUREEN FORESTALL and

DYLAN JAMES FORESTALL

Plaintiffs

– and –

ELIZABETH CARROLL,

CELINA CARROLL, by her Litigation Guardian, LORNA HORLACHER and

TD HOME AND AUTO INSURANCE

COMPANY

Kaitlyn MacDonell, for the Plaintiffs

John Friendly, for the Defendant Elizabeth Carroll

David Bily, for the Defendant Celina Carroll by her Litigation Guardian Lorna Horlacher

Martin Forget and Eric Boschetti, for the Defendant TD Home and Auto Insurance Company

WRITTEN SUBMISSIONS ON COSTS

COSTS ENDORSEMENT

diamond j.

1On April 8, 2015, I released my Reasons for Decision dismissing a motion for summary judgment brought by the defendant the Estate of Celina Carroll (“Celina”). At the conclusion of those Reasons, I requested that any parties to that motion who sought costs of the motion serve and file their written submissions, with responding written submissions to be served and filed thereafter.

2I have now received written costs submissions from the defendant TD Home and Auto Insurance Company (“TD”) which seeks costs on a substantial indemnity basis in the amount of $16,545.99 payable by Celina. Alternatively, TD seeks costs payable by Celina on a partial indemnity basis in the amount $11,194.21.

3I have also received Celina’s responding costs submissions.

4Pursuant to Rule 20.06 of the Rules of Civil Procedure, the Court may fix and order payment of the costs of an unsuccessful motion for summary judgment by a moving party on a substantial basis if the moving party acted unreasonably by making the motion, or acted in bad faith for the purpose of delay.

5It is TD’s position that Celina’s motion was ill-advised and doomed to fail. As per my Reasons, while I agree with TD that the evidentiary record tendered by Celina in support of her motion for summary judgment contained, inter alia, formal admissions which created an insurmountable hurdle, I do note that the merits of Celina’s motion for summary judgment were not fully argued or determined by this Court.

6The focus of the motion for summary judgment was upon the issue of consent, and specifically whether Celina provided her daughter Elizabeth Carroll with consent to operate the motor vehicle on the day of the collision. Issues of consent to operate a vehicle are typically sought to be determined by a summary process which is preferred over using the judicial resources of a full trial.

7I do not find that Celina acted in bad faith for the purpose of delay. I do not find her intentions to seek summary judgment on the issue of consent to be unreasonable. However, I do find that the material prepared and tendered on Celina’s behalf was approaching unreasonable, and certainly unfortunate.

8It is well-established that the fixing of costs is not a simple mechanical exercise, and the Court must consider the reasonable expectations of both the successful and unsuccessful parties in determining a fair and just result. Overall, the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

9In my view, TD should be entitled to their costs of this motion fixed in the all-inclusive amount of $10,000.00 and payable by Celina forthwith.

Diamond J.