Introduction

1On 24 August 2010, Daniell Fennell, Gurjinder Deol and Boota Shergill were involved in a motor vehicle accident in the Peel Region. On 16 August 2012, Fennell, commenced litigation against Shergill and subsequently on 20 March 2014 against Deol. Shortly afterwards, on 20 October 2014, Shergill issued a cross-claim for liability against Deol.

2Deol, caught in a cross-fire of litigation, brought a motion to dismiss both Fennell and Shergill’s claims against him on the basis that they fell outside the the statutory limitation period contained in section 5 of the Limitations Act, S.O. 2002, c. 26, Sched. B. I granted Deol’s motion against Fennell but found that Shergill’s cross-claim fell within the requisite time period. As successful parties, Deol and Shergill now seek costs of the motion.

Deol’s Costs Against Fennell

3Deol submits Fenell created unwarranted complexity in the motion by failing to make reasonable admissions which could have streamlined matters. Most pertinently, Deol points to Fennell’s refusal to admit that Deol’s identity could have been discovered within the limitation period. This fact was admitted during the course of argument before me as Fennell came to rely on the discovery of the “threshold condition” contained in the Insurance Act, 1996, c. 29, of permanent and serious impairment as being the primary cause of his delay in launching the action against Deol.

4Ultimately I found Fennell’s claim to have been brought well outside the limitation period as he (a) ought to have discovered Deol’s identity shortly after the incident took place and (b) failed to exercise due diligence prior in pursuing the claim. I agree that this motion was complicated by Fennell’s arguments relating to discovery of the threshold condition required in motor vehicle accident claims. I reject, however, Deol’s argument that the matter was one of “undue complexity”. Motions brought to strike down actions for violation of the Limitations Act, necessarily involve the level of scrutiny of details and timelines which occurred in this case.

5The award of costs is a matter of discretion for a motions judge under s. 131 of the Courts of Justice Act, R.S.O. 1990, C. C.43.Turning to the amount of costs to be awarded in this case, I am cognisant of the factors outlined in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the overriding common law requirement that costs must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). In my view, the reasonable and fair amount of costs to be awarded to Deol is the amount of $16,000.00 all inclusive.

Shergill’s Costs Against Deol

6Shergill seeks costs against Deol in the amount of $5155.82 on a partial indemnity basis as a result of his successful defence of the motion to strike out his cross-claim.

7I agree with Deol’s submission that Shergill’s position in the motion was far more straighforward than that of Fennell. However, counsel for Shergill still had to prepare for the motion by examining the material pertaining to both his client and Fennell. I take into account Shergill’s argument that there was an offer to settle the matter in the amount of $5000.00. Based on these factors and the guidance provided by Rule 57.01 of the Rules, I find that the fair and reasonable amount of costs to be that requested by Shergill.

Conclusion

Costs awarded to Deol are fixed in the amount of $16,000.00. Fennell shall pay these costs within 30 days.
Costs awarded to Shergill are fixed in the amount of $5155.82. These costs are to be paid by Deol within 30 days.

S.A.Q. Akhtar J.

Released: 17 February 2016

CITATION: Fennell v. Deol et al, 2016 ONSC 1175

COURT FILE NO.: CV-12-461457

DATE: 20160217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL FENNELL

Plaintiff

– and –

GURJINDER DEOL, BOOTA SHERGILL and COACHMAN INSURANCE COMPANY

Defendants

COSTS JUDGMENT

S.A.Q. Akhtar J.

Fennell v. Deol et al, 2016 ONSC 1175

Case Summary

Introduction

Deol’s Costs Against Fennell