Court File and Parties

COURT FILE NO.: 14-61159 DATE: 2016/04/20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Roman Catholic Episcopal Corporation of Ottawa Plaintiff – and – l’Assurance mutuelle de l’inter-ouest Defendant

COUNSEL: Charles Gibson and Richard Léger, for the Plaintiff Jeff G. Saikaley, for the Defendant

HEARD: March 29, 2016

DECISION ON COSTS R. Smith J.

Overview

[1] The plaintiff, The Roman Catholic Episcopal Corporation of Ottawa (“RCECO”), initially sued the defendant, l’Assurance mutuelle de l’inter-ouest (“Mutuelle”), seeking an order confirming insurance coverage for eight claims for damages for alleged sexual abuse by different priests in the diocese. All of the claims of sexual abuse were for the period before 1976.

[2] Counsel for RCECO wrote to Mutuelle in June of 2012 putting it on notice that it was seeking confirmation of insurance coverage for the eight claims. Mutuelle did not reply to this letter. A further letter was sent on Aug 21, 2012 and again on May 23, 2013.

[3] On May 27, 2013, the representative of Mutuelle had discussions with counsel for RCECO and was ambiguous about liability coverage for the claims in question.

[4] RCECO eventually sued Mutuelle for confirmation of insurance coverage for the eight claims prior to 1976.

[5] Ultimately, it was discovered that Mutuelle was not licensed to issue public liability insurance before 1976 and therefore it was agreed that there was no coverage for the eight original claims.

[6] Mutuelle brought a motion for summary judgment to dismiss all of the claims for coverage. Over the course of the proceedings, the plaintiffs’ claim was amended to include four additional claims. Three of these new claims were recognized by Mutuelle and one was not covered. Each claim was in the approximate amount of one million dollars.

[7] Before the summary judgment motion was heard, the parties settled on terms that nine of the claims would be dismissed and three of the twelve claims were recognized by Mutuelle. The only issue outstanding was the issue of costs.

Positions of Parties

[8] Mutuelle seeks costs of $15,819.18 on a partial indemnity basis as it submits that it was more successful than RCECO as nine of the twelve claims for coverage were dismissed. In the alternative, it submits that no costs should be awarded because success was divided.

[9] RCECO submits that it is entitled to costs in the approximate amount of $85,000 due to Mutelle’s failure to respond to numerous letters from counsel and to provide confirmation that liability insurance coverage was not available prior to 1976.

Factors

[10] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.

Success and Conduct of a Party

[11] In this case Mutuelle was more successful than RCECO as nine of the twelve claims for coverage were dismissed. However, Mutuelle should have responded to the letters from counsel and should have confirmed that it was not licensed to issue public liability insurance before 1976 and therefore, there was no liability insurance coverage prior to this date.

Reasonable Expectations

[12] I also find that the amount claimed for costs by RCECO exceeds the amount that a party would reasonably expect to pay for a motion for summary judgment that was settled.

Disposition

[13] For the above reasons, costs are not awarded to either party for the motion for a summary judgment.

Justice Robert J. Smith Released: April 20, 2016