Straus v. Aviva; Hanna v. Aviva; Dushenko v. Aviva; Messer v. Aviva; Larsen v. Aviva; Dexter v. Aviva 2016 ONSC 516
CITATION: Straus v. Aviva; Hanna v. Aviva; Dushenko v. Aviva; Messer v. Aviva; Larsen v. Aviva; Dexter v. Aviva 2016 ONSC 516
COURT FILE NOs.: 11-31098, 12-35008, 12-36327, 13-40564, 13-40615, 13-40221
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No. 11-31098
B E T W E E N:
Shawn Straus
Plaintiff
Andrew Rudder, for the Plaintiff
- and -
Aviva Canada Inc.
Defendant
Pamela Quesnel & Andrew Baerg,
for the Defendant
Court File No. 12-35008
B E T W E E N:
Albert Hanna
Plaintiff
Andrew Rudder, for the Applicant
- and -
Aviva Insurance Company of Canada
Pamela Quesnel & Andrew Baerg,
Defendant
for the Defendant
Court File No. 12-36327
B E T W E E N:
Misty Dushenko
Plaintiff
Andrew Rudder, for the Applicant
- and -
Aviva Canada Inc.
Pamela Quesnel & Andrew Baerg,
Defendant
for the Defendant
Court File No. 13-40564
B E T W E E N:
Jeremy Messer
Plaintiff
Andrew Rudder, for the Plaintiff
- and -
Aviva Insurance Company of Canada
Defendant
Pamela Quesnel & Andrew Baerg,
for the Defendant
Court File No. 13-40615
B E T W E E N:
Keir Larsen
Plaintiff
Andrew Rudder, for the Plaintiff
- and -
Aviva Canada Inc.
Defendant
Pamela Quesnel & Andrew Baerg,
for the Defendant
Court File No. 13-40221
B E T W E E N:
Jennifer Dexter
Plaintiff
Andrew Rudder, for the Plaintiff
- and -
Aviva Canada Inc.
Pamela Quesnel & Andrew Baerg,
Defendant
for the Defendant
HEARD: June 23 and 25, 2015
The Honourable Justice C.D. Braid
COSTS JUDGMENT
ADDITIONAL REASONS respecting costs of judgment reported at Straus v. Aviva 2015 ONSC 4589, granting defendant’s motions for summary judgment to dismiss six actions against it.
I. NATURE OF THE ACTIONS
[1] Six plaintiffs brought actions against their insurer, Aviva Canada Inc. (also named Aviva Insurance Company Inc. and hereinafter referred to as “Aviva”) seeking accident benefits. Aviva brought motions for summary judgment seeking to dismiss the six actions because they were commenced outside the two-year limitation period.
[2] The plaintiffs argued that Aviva did not comply with informational requirements as set out in section 32(2) of the Statutory Accident Benefits Schedule, O. Reg. 403/96. The plaintiffs stated that Aviva failed to provide a written description of benefits and should not be entitled to rely on the limitation period in the circumstances.
[3] The motions for summary judgment in the six actions were heard together over two days in June of 2015, and counsel subsequently provided written submissions.
[4] The court found that the actions were brought well outside of the limitation period as set out in section 51(1) of the Statutory Accident Benefits Schedule and section 281.1(1) of the Insurance Act, R.S.O. 1990, c I.8, and were consequently statute-barred. The court granted summary judgment and all six actions were summarily dismissed.
[5] Following the release of the ruling, the parties were invited to file written submissions on the issue of costs. I have received and considered those submissions.
II. ANALYSIS
[6] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that “costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs. I have considered those factors.
[7] The determination of costs is not a mechanical exercise. As noted by the Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. The costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs incurred by the successful litigant.
[8] The determination of costs must be proportionate to the order sought and within the reasonable expectations of the unsuccessful party (see Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 DLR (4th) 440 (Ont. C.A.); Cosentino v. Roiatti, [2007] O.J. No.56 (Sup. Ct.)).
[9] Since Aviva was successful on the motions for summary judgment, it is entitled to its costs of the motion and the six actions.
[10] The plaintiffs argue that “the defendant is of considerable means and the access of ordinary citizens to the court against a defendant of means should not be chilled.” In my view, however, the plaintiffs must be assumed to know the risks of proceeding with their claims. These plaintiffs chose to accept that risk (Cicinski v. Ontario (Minister of Transportation), 2014 ONSC 1052, [2014] O.J. No. 763.
[11] I do not accept the plaintiffs’ argument that it is appropriate not to award costs because the issues in this case were novel and of important public interest. While the issues were novel, the plaintiffs took a calculated risk in issuing the claims and must bear some responsibility for Aviva’s costs of the actions.
[12] Aviva states that Offers to Settle were served on the plaintiffs, seeking dismissals of the actions with specified costs payable by each plaintiff to Aviva. Since these offers expired well before the hearing date of the motion, I have given them no weight in my analysis.
[13] The plaintiffs argue that the defendant’s costs are excessive. I disagree. The plaintiffs raised a legal issue that had not been previously litigated, causing Aviva’s counsel to spend significant time defending the claims and litigating the summary judgment motion. The plaintiffs raised novel legal issues and serious allegations that the plaintiffs should have expected would be vigorously defended by Aviva.
[14] All of the plaintiffs claimed damages for bad faith. These claims were without merit. Ordinarily, where a plaintiff claims that a defendant acted in bad faith, substantial indemnity costs are awarded against the unsuccessful plaintiff. This is meant to diminish frivolous and speculative litigation; to cause litigants to focus on the real issues; and to foster sober reflection above that of an emotional response (Bustamante v. Guarantee Co., 2015 ONSC 94, [2015] O.J. No. 18). Aviva does not seek substantial indemnity costs in this case.
[15] Aviva seeks an amount of costs for each action that is lower than what would be available on a partial or substantial indemnity basis. Having reviewed the Bills of Costs for each action, I am satisfied that the time spent by Aviva’s counsel on each file is reasonable and appropriate.
III. CONCLUSION
[16] In all of the circumstances, I find that the amounts claimed by Aviva are fair and reasonable. Each plaintiff shall pay costs to Aviva for the motion and for their entire action in the following amounts, inclusive of disbursements and HST:
i. Plaintiff Shawn Straus: $21,000.
ii. Plaintiff Albert Hanna: $22,500.
iii. Plaintiff Misty Dushenko: $16,000.
iv. Plaintiff Jeremy Messer: $17,000.
v. Plaintiff Keir Larsen: $17,500.
vi. Plaintiff Jennifer Dexter: $19,500.
[17] These costs are payable forthwith.
Braid J.
Released: February 1, 2016
CITATION: Straus v. Aviva; Hanna v. Aviva; Dushenko v. Aviva; Messer v. Aviva; Larsen v. Aviva; Dexter v. Aviva 2016 ONSC 516
COURT FILE NOs.: 11-31098, 12-35008, 12-36327, 13-40564, 13-40615, 13-40221
DATE: 2016-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Shawn Straus, Albert Hanna, Misty Dushenko, Jeremy Messer, Keir Larsen, Jennifer Dexter
Plaintiffs
- and –
Aviva Canada Inc./Aviva Insurance Company of Canada
Defendant
COSTS JUDGMENT
CDB