ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 81453/12

DATE: 2015-11-20

BETWEEN:

THE ESTATE OF THE LATE BERNADETTE L. MacDONALD by her litigation administrator Martina Anne MacDonald, MARTINA ANNE MacDONALD, and MARY MARGARET MacDONALD

Plaintiffs

– and –

JAMES E. DUNCAN

Defendant

Todd J. McCarthy, for the Plaintiffs

Martin P. Forget, for the Defendant

HEARD: November 17 & 20/ 2015

Justice B.A. Glass

Reasons for Costs

[1] The Plaintiffs, Martina Anne MacDonald and Mary Margaret MacDonald, were successful in their Family Law Act claims for loss of companionship, guidance and care to the extent of $35,000 each.

[2] There is an issue about whether they ought to be awarded any costs because their success was less than $100,000, that being below the amount for a Simplified Rules action.

[3] There were two actions commenced against this Defendant as well as the owner and operator of another vehicle. Those actions proceeded as companion actions. The other proceeding settled shortly before this trial. For much of the litigation, the defence in the actions alleged negligence by the deceased sister for crossing the centre line of the highway.

[4] There had been mediation proceedings for both actions as well. The mediation was not successful.

[5] Discoveries of the successful Plaintiffs were conducted in Nova Scotia. This kept costs at a lower level.

Position of the Defendant

[6] Mr. Forget, for the Defendant, submits that the MacDonald sisters should have proceeded under the Simplified Rules of Ontario because their claims were for less than $100,000. The award of damages for each sister was less than $100,000. Therefore, I should consider that the rules be followed without exception, and no costs should be granted.

[7] In addition, the Defence submits that if costs are awarded, the bill of costs presented by Mr. McCarthy is excessive and should be reduced by about $11,000.

Position of the Plaintiffs

[8] Mr. McCarthy, for the Plaintiffs, submits that there is no Rule 49 offer before the court. A non-Rule 49 offer was advanced by the Defendant on November 9th, 2015 for $20,000. At no time did the Defence request that this part of the action be moved into a Simplified Rules proceeding.

[9] Mr. McCarthy points out that the court could sanction the Defence because it did not act within the spirit of section 258.5(1) of the Insurance Act of Ontario. That section requires that an insurer attempt to settle claims as expeditiously as possible. Mr. McCarthy states that meaningful attempts were not made by Farmers.

[10] The bill of costs basically seeks partial indemnity scale costs of roughly $25,000 plus another $5,000 for the argument over costs.

Analysis

[11] If a litigant commences an action for claims below $100,000, she should proceed under the Simplified Rules or run the risk of costs sanctions. However, when the claims are part of larger proceedings, and in this case there were two actions running alongside each other with allegations of negligent driving by the deceased sister, the court should accept that the proceedings were conducted as ordinary actions rather than simplified proceedings.

[12] This is an action in which the court should exercise discretion and award costs to the Plaintiffs as successful parties who did not cause delay and extended proceedings. Having been involved with proceedings that involved alleged contributory negligence on the part of the deceased Bernadette MacDonald, the plaintiffs should not be expected to split off into additional proceedings. The most efficient approach to this litigation is the actions that were conducted as ordinary actions. I am satisfied that the Plaintiffs were advancing their claims in a reasonable way by commencing and continuing the actions under the ordinary procedure.

[13] Additional costs could be considered in favour of the Plaintiffs if the Defence did not follow the obligations of section 258.5(1) of the Insurance Act in attempting to settle expeditiously. I do not think there should be such a sanction because there were some discussions about settlement.

[14] I take into account that the parties did go to mediation with a focus on trying to resolve the actions. I say actions in the plural because there were two companion actions proceeding.

[15] The bill of costs submitted by Mr. McCarthy is reasonable. The approach advanced by Mr. Forget is akin to an old style line by line taxation of a costs. That is not to be done when a trial judge is fixing costs. I find that the costs claimed by the Plaintiffs should be reviewed globally for their reasonableness. They are not excessive. This was a short trial. One might find that taking more time to argue costs on such a streamlined trial than the presentation of evidence and closing submissions is attention-gathering.

[16] Costs have been requested on a partial indemnity scale. Costs will be fixed at $25,000 plus HST. That is for the trial. Disbursements to be allowed. Counsel fee for cost hearing will be fixed at $5,000 plus HST.

Conclusion

[17] Costs on a partial indemnity scale will be fixed at $25,000 for the two successful Plaintiffs plus HST and disbursements. Disbursements total $7,400.00. Further, an additional $5,000 is allowed together with HST for preparation and attendance at the hearing of submissions for costs.

Justice B.A. Glass

Released: November 20, 2015