Nadeau et al. v. Peters, 2016 ONSC 1844

CITATION: Nadeau et al. v. Peters, 2016 ONSC 1844

COURT FILE NO.: CV-11-438288

DATE: 20160316

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ronald Nadeau, Susan Griffiths, Evan Griffiths and Julia Griffiths, Plaintiffs

AND:

Gary E. Peters, Charlie Peters, Clarence Saylors and Harold Bond Keevil, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Zoran Samac, for the Plaintiffs

Daniel M. Himelfarb, for the Defendants Gary E. Peters and Charlie Peters

Jay A. Skukowski, for the Defendant Clarence Saylors

Richard M. Horst, for the Defendant Harold Bond Keevil

READ: March 14, 2016

COSTS ENDORSEMENT

[1] The plaintiffs and Clarence Saylors seek their costs of this summary judgment motion. The action arises from a "cascade" or "chain reaction" motor vehicle accident which occurred on November 19, 2010, involving motor vehicles driven by Mr. Nadeau, Mr. Saylors, Mr. Keevil and Charlie Peters. Based on the evidence before me, the discovery transcripts, the transcripts from the criminal trial and the relevant jurisprudence, I granted summary judgment in my endorsement of August 6, 2015, finding that there was no genuine issue requiring a trial as regards the liability of Mr. Saylors and Mr. Keevil, and found that Charlie Peters failed to discharge the onus upon him and was liable for the accident, along with Gary D. Peters, the owner of the vehicle.

[2] As regards costs, the Peters have settled with Mr. Keevil.

[3] The plaintiffs seek their costs of the motion on a partial indemnity basis in the amount of $5,983.76 inclusive of HST and disbursements and their costs of the action on liability on a substantial indemnity basis in the amount of $26,086.90, inclusive of HST and disbursements. The plaintiffs submit that they offered to limit their claim to the Peters' policy limits in exchange for an admission of liability in a letter to all counsel dated March 7, 2012. They argue that, had this offer been accepted, the defendants, Saylors and Keevil, would have been allowed out of the action and the examination for discovery on liability would have been unnecessary, as would the summary judgment motion. As a result, they seek substantial indemnity costs of the action on liability. I note that the plaintiffs did not include, in their submissions, copy of this letter.

[4] It is the position of the defendants, the Peters, that the plaintiffs are not entitled to costs until the resolution of their claims for damages and rely on the case of Garrett v Orillia Power Distribution Corp., 2005 CarswellOnt 7353. I note, in that case, that there was no actual discussion of the issue of costs in the context of the bifurcated trial. It is difficult to determine whether the parties themselves had agreed to proceed in the manner stipulated in the decision. Although not relevant to this issue, I note, as well, that the decision regarding liability was overturned on appeal.

[5] I am of the view that costs as regards liability can be fixed at this time. Costs, as sought, are restricted to the issue of liability. The examinations for discovery and transcripts of the criminal trial all related to the issue of liability. Any determination of damages, whether based on the court proceeding or an agreement among the parties, will be restricted to the issue of damages, and costs in that regard can be easily restricted to that issue alone.

[6] The plaintiffs seek substantial indemnity costs on the basis of an offer to limit their claims to the Peters' policy limits in exchange for an admission of liability in a letter dated March 7, 2012. They have, however, not included this correspondence in their submissions.

[7] Substantial indemnity costs are awarded in two circumstances. Firstly, where there is an offer to settle under rule 49.10 which has not been withdrawn and where the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, and secondly on a clear finding of reprehensible, scandalous or outrageous conduct on the part of the party against which the costs award is being made. Substantial indemnity costs are not awarded unless special grounds exist to justify a departure from the partial indemnity scale.

[8] In the present case, there has been no reprehensible, scandalous or outrageous conduct on the part of the defendants, the Peters. As for the offer to settle, which the plaintiffs state was served on March 7, 2012, and on the basis of which they seek substantial indemnity costs of the action on liability, I do not have evidence of this letter and cannot determine whether it was ever withdrawn, nor whether, based on the wording of the offer, the plaintiffs were ultimately as successful or more successful than the offer.

[9] Accordingly, I find that, in the above-mentioned circumstances, partial indemnity costs are appropriate and payable forthwith by the defendants Peters to the plaintiffs in the amount of $5,983.76 for the motion and $26,086.90 for the action on liability, plus disbursements in the amount of $2,805.92, payable forthwith by the defendants for the action on liability.

[10] I am not of the view that the plaintiffs bear the primary responsibility for paying the costs of the Saylors, as urged by the defendants, the Peters. The Peters base their argument, in this regard, on the case of Sousa v Jahagirdhar, 2012 ONSC 5153. I have considered this case and do not find it applicable in the circumstances of the present summary judgment motion.

[11] The defendants, the Peters, argue that they were in no position to admit liability without examinations for discovery of the defendants, Saylors and Keevil. I note that the defendants, Peters, have nevertheless paid the costs of Keevil. I do note, as well, that the evidence given by both Saylors and Keevil on examination for discovery was consistent with each of their testimonies given at the Highway Traffic Act trial in which the trial judge found that the accident was a "chain reaction" which resulted from the actions of the defendant, Charlie Peters. Thus, the defendants, Peters, had the benefit of the evidence of these two gentlemen. Nevertheless, I do not find it unreasonable for the defendants, Peters, to have awaited examinations for discovery in a civil action before determining the potential liability of the Peters.

[12] The defendant, Clarence Saylors, seeks his costs of the summary judgment motion on a substantial indemnity scale in the amount of $46,753, inclusive of HST, consisting of $19,561 for the summary judgment motion and $27,192 for the action, plus $9,501 for disbursements.

[13] It is the position of Clarence Saylors that offers to settle the action on a without costs basis were made by him on February 15, 2012, July 26, 2013 and December 16, 2013, all of which were ignored or not accepted by the Peters defendants. On September 26, 2014, following the first examination for discovery, counsel for Mr. Saylors wrote to the parties advising that he would seek his costs for the action and that subsequent examinations for discovery should be conducted by videoconference or examinations should be held in Barrie, Ontario rather than in North Bay. Again, the Peters defendants were not agreeable. As with the plaintiff, these offers, if they were in writing, are not included in the costs submissions materials. It is, therefore, not possible to determine whether specific offers were withdrawn and whether they were or were not beaten.

[14] Clarence Saylors does include in his materials an offer to settle dated June 9, 2015 in which he offered to settle the summary judgment motion on the ground that the action, including crossclaims, would be dismissed against Mr. Saylors and that the Peters defendants would pay Mr. Saylors his costs in the amount of $20,000. It is clear that this offer depended on all parties agreeing. In this case, the evidence indicates that the Peters defendants rejected the offer. Again, it is not clear whether the withdrawal of any crossclaims were agreed to as regards the other defendants, as stipulated in the offer.

[15] In exercising my discretion pursuant to the Courts of Justice Act and having taken into consideration rule 57.01 of the Rules of Civil Procedure, I am of the view that costs should be awarded on a partial indemnity scale payable forthwith by the defendants Peters to the defendant Saylors. I further award disbursements in the total amount of $9,500.90.

Carole J. Brown, J.

Date: March 16, 2016