COURT FILE NO.: C-9236/05

DATE: 20151029

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brenda Mullin and Rhaili Champaigne, Plaintiffs (Respondents)

AND:

Randy Lagace and Allstate Insurance Company of Canada, Defendants (Appellants)

BEFORE: The Honourable Mr. Justice R. Dan Cornell

COUNSEL:
A. Patrick Wymes, Counsel for the Plaintiffs (Respondents)

Todd J. McCarthy, Counsel for the Defendants (Appellants)

HEARD: Written Submissions

ENDORSEMENT on costs

[1] The defendant was successful in substantially reducing the amount of costs awarded to the plaintiff by the assessment officer. As the parties have been unable to agree on the costs of the appeal, I am now called upon to address this issue.

[2] The plaintiff, Brenda Mullin, was a passenger in a vehicle being driven by the defendant, Randy Lagace, at the time that a motor vehicle accident occurred. The plaintiff’s insurer, Allstate Insurance Company of Canada (“Allstate”), was added as a defendant after it was determined that Randy Lagace was uninsured at the time of the accident. The plaintiff originally claimed damages in an amount of $1,000,000. Prior to the trial, the plaintiffs accepted Allstate’s offer to settle in an amount of $190,000 plus costs to be agreed upon or as assessed.

[3] The plaintiff initially submitted a claim for costs in an amount of $548,522.25 inclusive of disbursements. The assessment officer awarded costs in an amount of $231,137.93. In my decision dated August 5, 2015, I determined that after applying the proportionality principle, an appropriate award of costs was $102,000 inclusive of disbursements and HST.

[4] It is apparent that the appellant has achieved substantial success on the appeal. There is no reason that the general rule that costs are to follow the event should not apply.

[5] The appellant’s material and argument were focussed and succinct. The appellant indicates that the solicitor and client costs inclusive of disbursements and HST amount to approximately $16,000. The appellant seeks partial indemnity costs in an amount of $7,000 inclusive of HST and disbursements. After taking into consideration all of the various cost factors including proportionality, I have determined that the appellant as the successful party shall have the costs of the appeal fixed in an amount of $7,000 inclusive of HST and disbursements.

[6] In my decision of August 5, 2015, I awarded the plaintiff costs in an amount of $102,000. I am advised that $15,000 in disbursements was advanced and paid in February of 2015 leaving a balance owing of $87,000. The appellant shall be permitted to set off the costs of the appeal in an amount of $7,000 with the result that the balance for costs payable by Allstate to Brenda Mullin is $80,000.

The Honourable Mr. Justice R. Dan Cornell

Date: October 29, 2015