CITATION: Nufrio v. Allstate Insurance Company of Canada, 2016 ONSC 4944

COURT FILE NO.: CV-10-412399

DATE: 20160907

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Nufrio, Plaintiff

AND:

Allstate Insurance Company of Canada and the Allstate Corporation, Defendants

BEFORE: Pollak J.

COUNSEL: J. Brian Johnston, Q.C. and Kenneth Alexander, for the Plaintiff

Seann D. McAleese and Kathryn L. Meehan, for the Defendants

HEARD: April 4, 5, 6, 7, 8, 2016

ENDORSEMENT

[1] The parties reached an agreement at trial with respect to costs. This agreement is as follows:

"At the trial of this matter before Justice Pollak, the parties agreed that the partial indemnity recovery figure, inclusive of disbursements, would be $60,000, subject to either party's right to argue the appropriate scale of recovery having regard to the customary factors considered by the Court.”

[2] I cannot accept Mr. Nufrio’s argument that the costs incurred by the Defendant on a partial indemnity basis were unreasonable. The parties specifically agreed on the amount of costs on a partial indemnity basis that would be paid to the victorious party. The only purpose of this Court receiving any further costs submissions was to allow the parties to argue the appropriate scale of costs that ought to be awarded.

[3] Further, I do not accept that the Defendant’s offer set out in correspondence by letter on March 19, 2012 qualifies as a Rule 49 offer from which client cost consequences must flow to justify the award of costs to the Defendant on a substantial indemnity basis. As well, I do not agree with the Defendants’ submissions that the unreasonable behaviour of the Plaintiff justifies an award of substantial indemnity costs.

[4] I therefore find that the agreement of the parties reached at trial is applicable and order Mr. Nufrio to pay the costs that were agreed to at trial to the Defendant.

Pollak J.

Date: September 7, 2016