Court File and Parties

CITATION: Tuffnail v. Meekes, 2016 ONSC 2363

COURT FILE NO.: 3724-11

DATE: 2016/04/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gregory Alan Tuffnail, Patricia Diane Tuffnail, David Alan Tuffnail and Michael Alan Tuffnail, plaintiffs

AND:

Steven Andrew Meekes, The Optimist Club of Downie Inc., State Farm Mutual Automobile Insurance, Tom Bolton, The Corporation of Perth South and Doug Hearn, defendants

BEFORE: Justice H. A. Rady

HEARD: In writing, received March 10, 11 and 22, 2016

Costs Endorsement

[1] Three defendants seek costs against their co-defendant Mr. Bolton arising from their successful motion for summary judgment dismissing his crossclaims against them. They seek their costs of the motion as well as the costs of defending the actions.

[2] The plaintiffs had agreed to dismiss their claims against these defendants on a without costs basis. Mr. Bolton did not consent to a dismissal of his crossclaims and the motion for summary judgment followed.

[3] The disposition of costs raises difficult issues in the circumstances of this case.

[4] In the normal course, costs follow the event and the moving parties would be presumptively entitled to costs. There are extenuating factors present here, however, that require consideration.

[5] The essence of the submission of the defendants who seek costs is that Mr. Bolton’s refusal to consent to a dismissal of his crossclaims required the moving parties to go to the expense of the motion. Both the Optimist Club and the Township delivered offers to settle, which could have an impact on costs. I am unaware if Mr. Hearn did so.

[6] In this case, the plaintiffs’ claims cumulatively were for $8,000,000. Mr. Bolton had insurance policy limits of $2,000,000. The at fault driver Mr. Meekes had only $200,000 in liability insurance.

[7] The plaintiffs would not agree to limit their claims to Mr. Bolton’s policy limits, thereby exposing Mr. Bolton personally to a claim for any damages in excess of the combined policy of limits of he and Mr. Meekes. Unfortunately, Mr. Bolton recently passed away from esophageal cancer.

[8] In addition, it was the plaintiffs who sued the parties who now seek their costs. I am advised that Mr. Bolton was not originally a party and was only added as a defendant due to the allegations contained in the Optimist Club’s statement of defence. It is hardly surprising or unreasonable that Mr. Bolton would have advanced crossclaims given all of the foregoing.

[9] It strikes me as wholly inequitable to impose the entire burden of costs of the defence of the actions on Mr. Bolton. To my mind, by agreeing to a dismissal of the plaintiffs’ claims without costs, these defendants effectively waived their defence costs in connection with the claims.

[10] Furthermore, while I found the crossclaims to be untenable in law, it is apparent on the facts that Mr. Bolton could not consent to a dismissal of his crossclaims. This was because of the plaintiffs’ refusal to limit their claims, exposing Mr. Bolton to personal liability. Mr. Bolton was effectively compelled to let the matter be determined by the court.

[11] In the unique circumstances of this case, therefore, I have decided that the parties should bear its own costs.

“Justice H. A. Rady”

Justice H. A. Rady

Date: April 7, 2016