SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-485342

DATE: 20150810

RE: Diana Michelle Daniella Hordo, Applicant

AND:

State Farm Mutual Automobile Insurance Company, (A United States of America Illinois Registered Mutual Insurer), Barbara Bellissimo and Edward B. Rust Jr., Respondents

BEFORE: Pollak J.

COUNSEL: Robert Besunder for the Applicant

Mark A. Gelowitz and Karin Sachar, for the Respondents

HEARD: March 30, 2015

ENDORSEMENT

[1] I have read and considered the submissions of the parties and I have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.0. 1990, Reg. 194. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[2] The successful Respondents claim costs of $40,000 which they submit are only one third of their costs on a partial indemnity basis. They submit that such is very reasonable in light of the seriousness of the allegations made by the Applicant and the finding of the Court of abuse of process.

[3] The Applicant urges this Court to make no cost award, as the Court did not consider many of the alternate arguments made by the Respondents. The Applicant argues that the issue she raised with respect to breach of privacy by an insurer, is an issue of general importance to insured accident victims, and is a matter of public interest.

[4] As well, she submits that the issue of the misrepresentations in the transfer of assets from State Farm to Desjardins, which included the transmission of private and confidential medical and personal information of an insured person without their consent, is an issue of general importance and of public interest.

[5] For the reasons set out in my Endorsement of June 15, 2015, I do not accept these arguments.

[6] The Applicant argues that:

“The Bill of Costs presented by the Respondents is excessive and wholly out of proportion to the proceedings. There were no cross-examinations. The Affidavit material of the Respondents is sparse and bare-bones and does not touch upon the significant substantive issues as between the parties. The Factum material of the Respondents equally avoids the substantive issues as between the parties, and substantially focuses on ad hominem attacks upon Michael Bordo.”

[7] The Applicant argues that the law is uncertain on how such privacy rights should be enforced and that where the law is uncertain, it is not appropriate to award costs. Woodhouse v Woodhouse (1996), 1996 902 (ON CA), 29 O.R. (3d) 417 (C.A.). For the reasons set out in my Endorsement, I do not accept this argument.

[8] The Applicant also notes that her allegations were not adjudicated upon, and not challenged through cross-examination or other evidence. The Application was dismissed on grounds unrelated to the merits of her claims.

[9] I do not agree with the submissions of the Applicant regarding the limited scope of the Court’s ruling. All of the submissions made had to be defended and considered by the Court. I do not accept the submissions that no costs should be awarded to the Respondents. As noted above, the Respondents have already greatly reduced the amount they claim in costs.

[10] The Applicant does not provide this Court with a submission on what a reasonable amount of costs would be other than to assert that no costs should be awarded. I do not agree that such is the appropriate result in this case, having regard to all of the factors which are referred to above. The Applicant was unsuccessful, with the Application being dismissed. In this case, there must be an appropriate cost award as set out in out Rules of Civil Procedure and in the relevant jurisprudence.

[11] I exercise my discretion to fix costs in the amount of $30,000, which includes all disbursements and applicable taxes to be paid by the Applicant to the Respondent.

Pollak J.

Date: August 10, 2015