Saumur v. Antoniak, 2015 ONSC 3674

COURT FILE NO.: 02/7354

DATE: 2015-06-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dean Saumur by his litigation guardian Janet Saumur and the said Janet Saumur

Mr Robert Hooper for the plaintiffs

Plaintiffs

– and –

Luba Antoniak, Lester Antoniak and the City of Hamilton

Defendants

Ms J. Hunter for the City of Hamilton

Mr Justice Ramsay

[1] The plaintiffs seek costs of this action for negligence [2015 ONSC 2380] fixed at $660,000 all inclusive. The defendant City of Hamilton submits that an appropriate award would fix costs at $220,000 plus GST or HST, as applicable, plus disbursements of $118,400.56 including tax. After a trial that lasted nine days, the defendants were found liable for the main plaintiff’s injuries and no contributory negligence was attributed to him. The damages were agreed to be about $7.85 million, of which the plaintiffs received $1,000,000 in 2005, when they settled with the Antoniak defendants.

[2] The amount claimed is proportionate to the amount at stake. The following circumstances are important:

a. The plaintiffs received about $257,000 for costs up to October 1, 2005 at the time of the settlement with the Antoniaks;

b. Since there was a change of lawyers since then, some of the preparation work done for the plaintiffs necessarily involved duplication of effort;

c. The plaintiffs made an offer to settle under Rule 49 on March 12, 2015, and did better than they offered;

d. This was an expensive action to prosecute; and

e. There is nothing to criticize in the conduct of the defendants.

[3] I accept that the plaintiffs should have partial indemnity for costs from October 1, 2005 to March 12, 2015 and substantial indemnity thereafter. I think that $400,000, all inclusive, would reasonably have been contemplated and I order the City to pay the plaintiffs’ costs in that amount.

J.A. Ramsay J.