Doolittle v. Overbeek et al., 2015 ONSC 893

COURT FILE NO.: 3743-11

DATE: 2015/02/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL GORDON DOOLITTLE, AMY MAY DOOLITTLE, and KYA OLIVINE DOOLITTLE, GRACE RENAE DOOLITTLE, COOPER MICHAEL DOOLITTLE AND OLIVER JACK DOOLITTLE by their Litigation Guardian Michael Gordon Doolittle (Plaintiffs)

• and –

WALTER OVERBEEK, 1675150 ONTARIO INC. c.o.b. as THE FLORAL EXPRESS INC. and THE STATE FARM MUTUAL INSURANCE COMPANY (Defendants)

BEFORE: JUSTICE I. F. LEACH

COUNSEL: James J. Mays and Cole S.C. Vegso, for the Plaintiffs

Ian Gerald T. Smits for the Defendants

HEARD: In writing

ENDORSEMENT (COSTS) - CORRECTION

[1] Following the release of my cost endorsement to counsel on February 2, 2015, I realized that there was an error in the last “bullet point” sub-paragraph of paragraph 102.

[2] In particular, the numerical figure therein of “$31,400” should have read “$93,900”, having regard to the considerations outlined in paragraphs 25-26 of my endorsement.

[3] Such an offer, sufficient to engage the presumptive cost consequences of Rule 49.10(2), obviously would have been considerably higher than an offer simply higher than the amount actually recovered by the plaintiffs at trial.

[4] However, it still seems unlikely to have been accepted by the plaintiffs before trial, having regard to the much higher amounts being demanded by the plaintiffs in their unilateral settlement offers and overtures.

[5] Moreover, a much lower defence offer, (such as $31,400), insufficient to engage the presumptive cost consequences of Rule 49.10(2), but surpassing the result achieved by the plaintiffs at trial, still would have had relevance pursuant to Rule 49.13.

[6] The point made in my original cost endorsement remains the same: the remaining defendants’ failure to make any settlement offers is something that, in the result, actually may have worked to the plaintiffs’ ultimate benefit in this case, in the sense of leaving them in a better position vis-à-vis costs than they otherwise might have been.

[7] None of the above has any impact on my original cost disposition. The matter of settlement offers or lack thereof in this case was and remains, in my view, an entirely neutral consideration. However, I thought it advisable to note and correct the aforesaid error in my original cost endorsement.

“Justice I. F. Leach”

Justice I. F. Leach

DATE: February 9, 2015