Court File and Parties

Court File No.: CV-12-0133-00 Date: 2016-09-14 Ontario Superior Court of Justice

Between: Reggie Babcock, Plaintiff – and – Angelo Destefano and Wawanesa Mutual Insurance Company, Defendants

Counsel: D. Gilbert, Counsel for the Plaintiff/Responding Party B. Marta, Counsel for the Defendant/Moving Party, Wawanesa Mutual Insurance Company

Heard: September 14, 2016

Costs Decision

Ray, J

[1] The defendant Wawanesa’s motion was dismissed August 24, 2016 with the exception of one order which was not in dispute. (2016 ONSC 5352). I invited written costs submissions if the parties could not agree. (14 days plus a further 5 days for reply). I received the costs submissions of the plaintiff September 1, 2016 and the submissions of Wawanesa September 13, 2016.

[2] I accept the plaintiff’s submissions that my order for a defence medical and dismissal of the balance of the relief sought by Wawanesa “equalled and/or beat his offer in respect of what he was prepared to do without the need for a court order.” The plaintiff had offered to settle the costs at $25,000 on August 25, 2016 with the offer to be open until September 1, 2016. Having had no reply, he now seeks substantial indemnity costs of the motion in the amount of $31,883.43. The defendant says that the offer regarding costs was non-compliant with Rule 49 because it did not comply with the seven day rule.

[3] The defendant’s position is that he was the successful party, and seeks costs on the partial indemnity scale. My decision referenced above makes it clear that the defendant was not the successful party. To contend otherwise is a misstatement of fact. The defendant did not address the quantum of costs sought by the plaintiff.

[4] At the conclusion of the motion, the parties filed costs outlines: the plaintiff at $27,810.16, all inclusive, on a partial indemnity scale; and Wawanesa at $19,246.51.

[5] I am satisfied that that the motion was entirely unnecessary. I am further satisfied that it was the defendant’s conduct in ignoring the rules that made my decision necessary. As a result, the plaintiff is entitled to his costs of the motion. He was the successful party. I assess the plaintiff’s costs payable by the defendant Wawanesa at $27,810.16.

Honourable Justice Timothy Ray Released: September 14, 2016