SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-08-0085-00
DATE: 2015/10/23
RE: Kimberly L. Pomeroy, Plaintiff/Moving Party
AND
Vladimir Misljencevic, Defendant/Responding Party
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL:
Robert J. Reynolds, counsel for the Plaintiff
Pat C. Peloso, counsel for the Defendant
HEARD: September 28, 2015 at Belleville
ENDORSEMENT on costs
[1] This motion was heard over half a day on September 28, 2015. An oral decision was rendered on September 28 dismissing the plaintiff’s motion on the basis that whether or not the injury is indivisible is a factual question better left to the trier of fact.
[2] The motion, brought by the Plaintiff under rule 21.01 (1) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, had sought a determination of the following question:
Whether, if the court finds that the neck/shoulder injury which the Plaintiff sustained in the motor vehicle accident of March 31, 2006 was aggravated by an incident in July, 2008 when the Plaintiff dodged a soccer ball kicked towards the sideline at a soccer game, the damages for which the Defendant is liable include or exclude those attributable to the aggravation caused by the soccer ball incident.
[3] In analysing relevant factors, I note the following. The defendant was entirely successful on the motion. By letter dated August 13, 2015, the defendant had clearly stated his position and suggested that he would go out without costs within the next seven days. The rates charged are reasonable but I would reduce the hours of the associate by 12 hours (considering the materials filed on this motion and factoring-in the plaintiff’s reasonable expectations). This motion dealt with a moderately complex issue (causation) which was an important issue to the parties. The motion was well presented and argued by both. By letter dated August 20, 2015, counsel for the plaintiff clearly laid out his client’s position and offered to settle on the basis of the order sought with costs of the motion to be on a partial indemnity basis to the plaintiff in any event of the cause but not payable forthwith. I have also considered the plaintiff’s argument that costs of $2500 are apparently within the range of the reasonable expectations of the losing party on a half day motion of this complexity but have not accepted this argument as any such expectation would not necessarily be reasonable considering the amount of work that could go into preparing such a motion and considering the work that reasonably went into preparing this motion. I have also carefully considered all of the plaintiff’s submissions, outlined in her counsel’s letter of October 7, 2015.
[4] I find that costs of this motion should follow the result and should be payable on a partial indemnity basis. This is not one of those special and rare cases that could attract costs on a substantial indemnity basis and the defendant’s offer does not assist the defendant for costs to be on a higher scale. I find the defendant’s bill of costs to be reasonable, with the exception that I have removed 12 hours from the time spent by the associate. Consequently, I have fixed the amount of costs of the defendant for this motion at $7695 (all‑inclusive).
[5] I do not agree with the plaintiff’s argument that the question of entitlement to the costs of this motion should be left to the trial judge. The plaintiff argues that this would be more just considering that the evidence at trial might turn out to support the plaintiff. While this may or may not be the case, I fail to see how it assists the plaintiff when the motion, as indicated above, was dismissed on the basis that this was a factual question (or question of mixed fact and law) better left to the trier of fact. Similarly, I am not convinced by the plaintiff’s argument that in this case it would be more just to award costs to the defendant in any event of the cause but not forthwith, despite the plaintiff’s offer to accept a similar disposition. In other circumstances, including on a motion involving a novel issue, that might indeed be a more just result but not in the circumstances of this motion. Otherwise, if it were so for this motion, it would be in rare cases where it would not be so for plaintiffs where the assessment of damages is the primary issue for trial. This might encourage parties with strong liability case to bring risky motions or, at a minimum, would not have the desired effect that is associated with the risk of an adverse costs award. That risk is designed to encourage parties to carefully assess the wisdom of bringing motions. When I consider that soundness of that principle in a system already overburdened with interlocutory motions, I am not convinced that in these circumstances it would be more just to make a different order than costs payable within the next 120 days.
[6] Consequently, the costs of this motion are payable by the plaintiff to the defendant in the all-inclusive amount of $7695 within the next 120 days.
Roger J.
Date: October 23, 2015
COURT FILE NO.: CV-08-0085-00
DATE: 2015/10/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Kimberly L. Pomeroy, Plaintiff/Moving Party
AND
Vladimir Misljencevic, Defendant/Responding Party
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Robert J. Reynolds, counsel for the Plaintiff
Pat C. Peloso, counsel for the Defendant
ENDORSEMENT ON COSTS
Roger J.
Released: October 23, 2015