ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 42621/03
DATE: 2015/12/10
BETWEEN:
Dannielle Shukster
Plaintiff
– and –
Bradley Young, Nancy Young, Hay Mutual Insurance Company, Co-operators General Insurance Company, Cumis General Insurance Company and Liquor Control Board of Ontario, Store #622
Defendants
Gordon Good, for the plaintiff
Jennifer Chapman, for the defendants Minister of Finance, on behalf of and in the name of the defendant Bradley Young
HEARD: October 30, 2015
Leitch J.
[1] The plaintiff has brought a motion seeking an order (i) permitting her to amend her Statement of Claim to include a claim for a declaration that “the plaintiff is a victim of crime seeking redress from the defendant Bradley Young, a person convicted of the crime, for the harm suffered by the plaintiff as a result of the commission of a crime within the provisions of s. 4 of the Victims’ Bill of Rights, 1995, S.O. 1995 c. 6” and, (ii) “the costs of this action on a solicitor and client basis pursuant to the provisions of s. 4(6) of the Victims’ Bill of Rights.”
[2] Further, the plaintiff seeks a declaration or alternatively, summary judgment for an order that the plaintiff is a victim of crime and an order fixing her costs as against the defendant, Bradley Young on a substantial indemnity basis pursuant to s. 4 of the Victims’ Bill of Rights. In other words, the plaintiff seeks summary judgment on her amended claim.
[3] In addition, the plaintiff seeks an order fixing the costs between the plaintiff as client and Mr. Good as lawyer in accordance with s. 27 of the Motor Vehicle Accident Claims Act, R.S.O. 1990 c. M.41.
[4] In addition, the plaintiff’s factum indicates that she also seeks judgment as against the defendant Bradley Young in the agreed sum of $200,000 inclusive of pre-judgment interest pursuant to the provisions of s. 23 of the Motor Vehicle Accident Claims Act.
[5] Mr. Young did not appear on this motion. Ms. Chapman provided me with correspondence directed to Mr. Young in which she confirms her telephone conversation with him on August 19, 2015 in which she stated that this motion would be heard October 30, 2015. In her correspondence she encouraged Mr. Young to seek independent legal advice with respect to the potential ramifications to him personally in the event the plaintiff is successful on the motion.
[6] In essence, the plaintiff, by virtue of the amendment to her Statement of Claim, seeks to rely on having suffered harm as a victim, within the meaning of the Victims’ Bill of Rights, to entitle her to recover substantial indemnity costs. Mr. Good, her counsel, asserted that the amendment to the Statement of Claim does not raise a new cause of action, his request for costs is a procedural issue and there are no limitation periods that would restrict his right to amend the Statement of Claim as sought.
[7] Mr. Good referenced the preamble to the Victims’ Bill of Rights, outlined below, and emphasized that victims of crime are entitled to an increased level of costs.
[8] As a result, he asserts that his costs should be assessed on this motion and fixed in a quantum to reflect recovery on a substantial indemnity basis payable by the Minister of Finance.
[9] He has filed a party and party bill of costs on a substantial indemnity basis, pursuant to which he seeks total fees in the amount of $110,515, plus applicable taxes of $9,657.35, plus disbursements and applicable taxes of $37,381.78 for a total of $157,554.13.
Background Facts
[10] The plaintiff was involved in a motor vehicle accident on August 29, 2002. She was a passenger in a vehicle operated by the defendant Bradley Young who, at that time, was an unlicensed driver of an automobile. The vehicle was driven without the consent of the owner and was therefore an “uninsured automobile” at the time of the accident.
[11] Mr. Young was charged and pled guilty to dangerous driving and taking a motor vehicle without consent pursuant to s. 249 and s. 335(1) of the Criminal Code of Canada.
[12] Pursuant to s. 8 of the Motor Vehicle Accident Claims Act, Ms. Chapman was appointed for the defendant Bradley Young.
[13] The factum filed by the plaintiff revealed that there was an agreement reached with Ms. Chapman that the plaintiff would be entitled to judgment for damages inclusive of prejudgment interest in the sum of $200,000, being the maximum amount that can be paid pursuant to the provisions of s. 23 of the Motor Vehicle Accident Claims Act.
The Relevant Provisions of the Victims’ Bill of Rights
[14] Section 1 of the Victims’ Bill of Rights defines a crime as an offence under the Criminal Code. The preamble states that “victims of crime … should be treated with compassion and fairness.”
[15] Section 4 of the Victims’ Bill of Rights contains the following provisions:
This section applies to a civil proceeding in which the victim of a crime seeks redress from a person convicted of the crime for harm suffered as a result of the commission of the crime.
(6) A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interest of justice.
The Relevant Provisions of the [Motor Vehicle Accident Claims Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m41/latest/rso-1990-c-m41.html), R.S.O. 1990, c. M. 41
[16] Section 4(1) provides that where personal injury to any person is occasioned in Ontario by an uninsured motor vehicle, any person who would have a cause of action against the owner or driver of such uninsured motor vehicle in respect of such personal injury (except a person entitled to make an application under s. 7(1)), may make application for payment out of the Fund of the damages in respect of such personal injury.
[17] Sections 7(1) and (2) deal with applications for payment of a judgment for damages on account of injury to any person occasioned in Ontario by a motor vehicle owned or operated by the judgment debtor within Ontario to the Minister, who shall pay the amount of the judgment or the unsatisfied portion thereof out of the Fund.
[18] In relation to the issue of costs, s. 26(1) of the Motor Vehicle Claims Act provides as follows:
The Minister shall pay out of the Fund costs of an action but not more than the actual disbursements and fees as awarded in the judgment as between the parties to the action.
[19] Section 27 states as follows:
No money shall be paid out of the Fund under or in respect of an order or judgment until the bill or bills of costs of the barrister or solicitor acting or who acted for the applicant in the application or action that resulted in the order or judgment, as assessed on a solicitor and client basis, is filed with the Minister.
Disposition
[20] I conclude that the plaintiff’s motion must be dismissed for a number of reasons.
[21] Firstly in relation to the proposed amendment to the Statement of Claim, I agree with the position of the Minister of Finance on behalf of, and in the name of, the defendant Bradley Young that the plaintiff seeks to add a new cause of action to her claim 13 years after the accident in issue and if the amendment is granted, the defendant Bradley Young will suffer non-compensable prejudice.
[22] The position of the Minister of Finance was succinctly stated in paras. 18 and 19 of the factum as follows:
It is submitted that the amendment being sought by the Plaintiff equates to a new cause of action with the damages arising as a result of the “commission of a crime.” In this regard, the plaintiff was aware of all of the material facts upon which to base this cause of action within the relevant limitation period, yet failed to plead it.
Further, if the amendment is granted, the defendant, Bradley Young will suffer non-compensable prejudice as it has now been over 13 years since this motor vehicle accident occurred and he has not had the opportunity to be counselled or seek ongoing legal advice on the issue of the Victims’ Bill of Rights, 1995 as his representation by the Motor Vehicle Accident Claims Fund is restricted to the claim for damages “occasioned in Ontario by a motor vehicle.”
[23] I do not accept the plaintiff’s position as set out in para. 13 of the reply factum that “the proposed amendments simply plead an alternative claim for relief arising out of the same facts as previously pleaded with no new facts being relied upon in order to plead a different legal conclusion with respect to the plaintiff’s entitlement to costs.”
[24] The Statement of Claim alleged that Mr. Young was negligent in the operation of a motor vehicle. The Statement of Claim stated that the plaintiff relies on Mr. Young’s guilty plea to the offence of dangerous driving under the Criminal Code and his resulting conviction as prima facie proof of his negligence.
[25] As emphasized by Ms. Chapman, she is in a position only to defend the plaintiff’s claims on behalf of the defendant, Mr. Young, with respect to his alleged negligence and the Fund will only pay costs related to such negligence.
[26] I agree with the position of Ms. Chapman that the governing provisions of the Motor Vehicle Accident Claims Act are clear and unequivocal that the Fund will only pay judgments for damages occasioned in Ontario by uninsured motor vehicles. Therefore, as set out in para. 31 of her factum, “it follows that the authority of the Fund to defend an action on behalf of or in the name of an uninsured defendant is restricted to the defense of the claim of negligence, as against said defendant arising from the motor vehicle accident.”
[27] This proposed amendment cannot be advanced at this late stage of the proceeding. While Mr. Good is critical that there is no affidavit filed in support of the allegation of prejudice to Mr. Young, prejudice is presumed when a limitation period has expired and the onus is on the plaintiff to show the existence of special circumstances to rebut the presumption. No such special circumstances have been established here.
[28] Secondly, there is a legitimate question as to whether the plaintiff is entitled to substantial indemnity costs.
[29] It was not disputed that the plaintiff is a victim and that Mr. Young pled guilty to an offence, however, enhanced costs can only be awarded where it is not an injustice to do so.
[30] Ms. Chapman raised the issue of whether the plaintiff is an innocent victim of crime or whether she willingly made a poor choice.
[31] Ms. Chapman noted that in Pilon v. Janveaux, 2006, 2006 6190 (ON CA), [2006] O.J. No. 887, 29 M.V.R. 5th 172 at para. 22, the Court of Appeal upheld the trial judge’s decision that it was not appropriate to award the higher level of costs in that case “where the victim was contributorily negligent and therefore, not a wholly innocent victim of a crime.” The court observed that because the appellant bore some “responsibility for his damages, the trial judge was entitled to consider that factor in determining whether it was in the interest of justice to award the appellant the higher level of costs.”
[32] Ms. Chapman asserted that the plaintiff willingly got into the motor vehicle with Bradley Young. As a result her position is that the plaintiff was engaged in a “joint venture” with the defendant, Mr. Young and the facts of this case are very similar to the facts in Pilon.
[33] Mr. Good is critical that Ms. Chapman’s factum references allegations contained in the defendant’s examination for discovery, which he submits is contrary to rule 39.04 or based on hearsay.
[34] Mr Good argued that the plaintiff did not contribute to her own injuries. He asserted in para. 30 of his factum that “there is no evidence that the Defendant’s [sic] minimal consumption of alcohol caused or contributed to the collision and the resulting injuries. The Defendant [sic] was not charged with any Criminal Code alcohol offence.”
[35] There is no affidavit evidence from either the plaintiff or Mr. Young.
[36] I conclude that there is no basis on which a finding can be made on these motion materials that an award of enhanced costs is not an injustice.
[37] Thirdly, Mr. Good seeks an order fixing costs at $157,534.13 in relation to a judgment in favour of the plaintiff in the amount of $200,000 obtained 13 years after the accident occurred.
[38] It is obvious that he wishes to recover his costs from the Fund. Section 27 of the Motor Vehicle Accident Claims Act requires that such costs be assessed on a solicitor and client basis.
[39] On this motion, plaintiff’s counsel has filed only a Bill of Costs. There is no information provided for the court to consider the relevant factors to award costs as set out in r. 57.01.
[40] There is also no information addressing other factors relevant to the assessment of costs as established by costs jurisprudence including the paying party’s expectations as to fees, the financial risk assumed by counsel in pursuing the action and the requirement of proportionality.
[41] Furthermore, there is no basis on which the court can determine what portion of the requested costs relates to Mr. Young’s negligence.
[42] As a result, the plaintiff’s motion is dismissed.
[43] I trust the issue as to costs of this motion can be resolved by counsel. However, failing agreement brief submissions may be made in writing.
Justice L. C. Leitch
Justice L. C. Leitch
Date: December 10, 2015
COURT FILE NO.: 42621/03
DATE: 2015/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dannielle Shukster
Plaintiff
– and –
Bradley Young, Nancy Young, Hay Mutual Insurance Company, Co-operators General Insurance Company, Cumis General Insurance Company and Liquor Control Board of Ontario, Store #622
Defendants
REASONS FOR JUDGMENT
LEITCH J.
Released: December 10, 2015