ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Colin MacIntyre, James MacIntyre and Joan Styan
Adam Huff, Counsel for the Plaintiffs
Plaintiffs
- and -
Cameron Shoesmith and Allstate Insurance Company of Canada
Defendants
Joseph J. Sullivan, Counsel for the Defendant, Chisholm
John Friendly, Counsel for the Ministry of the Attorney General (Financial Services Commission of Ontario)
THE HONOURABLE MR. JUSTICE P.J. FLYNN
COSTS RULING
1The Plaintiff was entirely successful on the motion.
2But the fact that a party is successful in a step in a proceeding does not prevent this court from awarding costs against that party in a proper case.
3Both sides have sought costs on this long motion.
4The Plaintiffs seek their partial indemnity costs from the proposed defendant in the amount of $20,502.71
5The Defendant Scott Christopher seeks partial indemnity costs from the Plaintiffs in the amount of $16,295.73, under the aegis of Rule 5.05 (2).
6In the alternative, the Defendant asks this court to award no costs, or, in the event that this court orders costs in favour of the Plaintiffs, the Defendant asks that they be made payable in the cause.
7Neither side has made any complaint about any item in the other’s Bill of Costs. Nor is the reasonableness of the quantum questioned.
8The Defendant argued that Plaintiff’s counsel’s conscious decision not to add the proposed Defendant within the limitation period resulted in a plethora of motion materials being filed and the motion being argued.
9Mr. Chisolm’s identity as the vehicle owner was, after all, known from the outset.
10But the Plaintiffs counter that it was open to the proposed Defendant’s insurer to allow the motion to proceed unopposed, plead the limitation period and then bring a summary judgment motion on the very issues which were argued in the written motion. This course of action was even suggested to the proposed Defendant by Plaintiff’s counsel in May 2015. In that way, the Plaintiff would have faced a more onerous burden.
11But, as Plaintiff’s counsel argues, the proposed Defendant’s insurer chose to give itself “two kicks at the can”. And having been unsuccessful at the first kick, the Defendant should bear the costs consequences.
12I agree. The Plaintiffs should have their costs.
13My task is to fix fair and reasonable costs in an amount within the reasonable expectation of the losing party.
14Given the relevant Rule 57.01 (1) factors, I am of the view that the Defendant should pay costs to the Plaintiffs in the all-inclusive amount of $16,295.73, the exact amount their Defendant would have claimed as reasonable costs if he had been successful. And I so order.
P.J. Flynn J.
Released: March 24, 2016
CITATION: MacIntyre v. Shoesmith, 2016 ONSC 2074
COURT FILE NO.: 11-28447
DATE: 2016-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Colin MacIntyre, James MacIntyre
and Joan Styan
Plaintiffs
– and –
Cameron Shoesmith and Allstate
Insurance Company of Canada
Defendants
REASONS FOR JUDGMENT
P.J. Flynn J.
Released: March 24, 2016