Bonello v. Gores Landing Marina (1986) Limited
CITATION: Bonello v. Gores Landing Marina (1986) Limited, 2016 ONSC 6674 COURT FILE NO.: CV-09-383809 DATE: 20161026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO Plaintiffs
– and –
GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES Defendants
– and –
CHRIS KANE, CHRIS RYAN, ANTHONY COOK, GABE MANSUETO, GERALD CHESTNUT, JEFF JAGLEL, FRANK BUTTIGIEG, DAN RULE, MIKE BUTTIGIEG Third Parties
COUNSEL: Ava Hillier for the Plaintiffs R. Steven Baldwin for the Defendants Gores Landing Marina (1986) Limited and Joseph Davies Russell Tilden for the Third Party Anthony Cook Lazina Khan for the Third Party Gabe Mansueto Nadine Nasr for the Third Party Gerald Chestnut Pamela L. Blaikie for the Third Party Jeff Jaglel Nestor Kostyniuk for the Third Parties Frank Buttigieg and Mike Buttigieg
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
1On August 4, 2007, the Plaintiff Timothy Bonello participated in a recreational game of tug-of-war among the summer-season tenants of the Defendant Gores Landing Marina (1986) Limited (“Gores Landing”). He was injured, and his hand was amputated.
2In 2009, Mr. Bonello sued Gores Landing and Joseph Davies, Sr., the then owner-operator of Gores Landing. Later, Mr. Bonello amended his claim to sue Joseph Davies, Jr. In his action, Mr. Bonello sought damages for negligence in excess of $5.5 million.
3Gores Landing and Mr. Davies, Sr. commenced third party proceedings for contribution and indemnity against: (a) Chris Kane, Gerald Chestnut, and Dan Rule, who were cottagers at Gores Landing who participated in the tug-of-war; (b) Chris Ryan, Gabe Mansueto, Jeff (properly Chandrick) Jaglel, Frank Buttigieg, and Mike Buttigieg, who were campers at Gores Landing that participated in the tug-of-war; and (c) Anthony Cook, who was a visitor at Gores Landing who participated in the tug-of-war.
4None of the Third Parties had any role in organizing the tug-of-war. The Third Parties defended the third party claims and some of them defended the main action.
5For what I would regard as the sensible reason that he had no reasonable claim against the participants in the tug-of-war, Mr. Bonello never sued the Third Parties, two of which were his cousins and the rest of which were strangers. Mr. Bonello did not sue any of the participants in the tug-of-war, none of whom had any role in organizing or supervising the event. The theory of Mr. Bonello’s claim was based on an occupier’s responsibility to take care of visitors on its premises. The Third Parties were not occupiers.
6Gores Landing and Mr. Davies, Sr. submit that they were “compelled” to join the Third Parties because Mr. Bonello did not join the Third Parties as defendants.
7In my view, however, there was no compulsion. As I see it, no one forced Gores Landing and Mr. Davies, Sr. to sue the Third Parties. The Third Parties were mere participants in a recreational activity and their exposure to a claim for contribution and indemnity was far-flung. The evidence at the examinations for discovery revealed that some of the Third Parties were only bystanders who became involved because of invitations from the event organizers. It appears that the Third Parties were added because they had the misfortune of speaking to Gores Landing’s investigator who took their witness statements.
8In my Reasons for Decision, I stated that Gores Landing and Mr. Davies, Sr. could not have reasonably foreseen that the participants in the tug-of-war would not properly prepare the rope for the tug-of-war or have the rudimentary safety equipment necessary to officiate the event. That remark was meant to refer to the organizers of the tug-of-war; participants do not officiate, but in any event, in my opinion, Gores Landing’s having a claim for contribution and indemnity against mere participants in the tug-of-war was decidedly remote. As confident as they were in their own innocence, Gores Landing and Mr. Davies, Sr. should have had better reason for seeking contribution and indemnity from the Third Parties, who at best were witnesses.
9There were ten examinations for discovery held over the course of five days. There was a mandatory mediation session. There were three attendances at Civil Practice Court to schedule the summary judgment motions. There was an attendance in Trial Scheduling Court. There were two attendances with respect to the summary judgment motion that was argued. The action lasted for over six years.
10After examinations for discovery in the main action and in the third party proceeding, some of the Third Parties brought summary judgment motions to have the third party proceedings and various cross-claims dismissed. After the Third Parties brought their motions for summary judgment, Gores Landing and Mr. Davies, Sr. brought a summary judgment motion to have the main action dismissed.
11I granted the Defendants’ summary judgment motion, and I dismissed Mr. Bonello’s action. See Bonello v. Gores Landing Marina (1986) Limited, 2016 ONSC 5372.
12It followed that Mr. Davies, Sr.’s and Gores Landing’s third party proceedings and the various cross-claims be dismissed subject to the determination of costs in the main action and in the third party proceedings.
13The Third Parties Frank and Mike Buttigieg, who defended the main action and the third party claim, seek costs of $23,159.47, all inclusive, from the Defendants Gores Landing and Mr. Davies, Sr.
14The Third Party Gerald Chestnut, who defended the main action and the third party claim, seeks costs of $37,874.54, all inclusive, from the Defendants Gores Landing and Mr. Davies, Sr.
15The Third Party Anthony Cook, who defended the main action and the third party claim, seeks costs of $20,200.38, all inclusive, from the Defendants Gores Landing and Mr. Davies, Sr. Mr. Cook from the outset, and several times during the proceedings, offered the Defendants an opportunity to discontinue the third party claim without costs.
16The Third Party Jeff Jaglel, who defended the main action and the third party claim, seeks costs of $32,058.27, all inclusive, from the Defendants Gores Landing and Mr. Davies, Sr.
17The Third Party, Gabe Mansueto, who defended the main action and the third party claim, seeks costs of $20,456.07, all inclusive, from the Defendants Gores Landing and Mr. Davies, Sr.
18Gores Landing and Mr. Davies, Sr. submit that Mr. Bonello should exclusively be liable for the costs claims of the Third Parties and they seek costs of their own of $59,914.76, all inclusive, from Mr. Bonello. This claim is based on total hours of 262.2.
19Mr. Bonello challenged Gores Landing’s and Mr. Davies, Sr.’s disbursements, of which no invoices were provided. These disbursements are approximately $13,000 higher than the disbursements of the Third Parties.
20In my opinion, there is no reason to depart from the normal rules that apply in circumstances where a defendant succeeds as against the plaintiff but the circumstances are such that the defendant took on the risk of a third party claim that ultimately proved nugatory because the main action was dismissed. In these circumstances, the defendant is entitled to its costs as against the plaintiff and the third parties are entitled to their costs as against the defendant.
21Where an action has been dismissed and there is no free-standing third party claim, the general rule is that costs awarded to a third party should be paid by the defendant, and subject to certain exceptional cases where on the peculiar facts, fairness requires that an unsuccessful plaintiff bear a successful third party's costs, the general rule is that a plaintiff who is unsuccessful against the defendant will not be charged with the costs of the third party because the plaintiff did not sue the third party, did not want him or her in the case, and was not responsible for joining him or her: Milina v. Bartsch, 1985 CanLII 454 (BC SC), [1985] B.C.J. No. 2789 (S.C.); Drady v. Canada (Attorney General), [2008] O.J. No. 238 (S.C.J.) at paras. 21-25.
22An order requiring the plaintiff to pay the third party may be appropriate where one or more of the following situations are present: (a) the main issue litigated was between the plaintiff and the third party; (b) the third party was brought or kept in the matter by reason of the act or neglect of the plaintiff; (c) where the case involves a string of contracts in substantially the same terms; (d) where the third party proceedings follow naturally and inevitably upon the institution of the plaintiff's action, in the sense that the defendant had no real alternative but to join the third party: Milina v. Bartsch, supra; Bank of America National Trust & Savings Assn. Canada v. Jean Co., [2006] O.J. No. 4680 (Master); Drady v. Canada (Attorney General), supra. This list of circumstances is, however, not exhaustive of situations where a plaintiff can be ordered to pay a third party's costs and there may be other circumstances where it is fair to order the plaintiff to pay the costs of third parties that it did not join as defendants: Sanofi Pasteur Ltd. v. UPS SCS Inc., 2015 ONCA 88 at para. 84; Guarantee Co. of North America v. Resource Funding Ltd., [2009] O.J. No. 3279 (S.C.J.).
23In the case at bar, notwithstanding the submissions of Gores Landing and Mr. Davies, Sr., none of the exceptional situations apply.
24I, therefore, order that Mr. Bonello pay partial indemnity costs of $44,000, all inclusive to Gores Landing and Mr. Davies Sr. I have reduced the claim to bring it in line with the reasonable expectations of the unsuccessful party.
25In contrast, the claims of the Third Parties against Gores Landing and Mr. Davies, Sr. are reasonable and do not call for any deduction. I, therefore, order Gores Landing and Mr. Davies, Sr. to pay: (a) Frank and Mike Buttigieg, $23,159.47, all inclusive; (b) Gerald Chestnut, $37,874.54, all inclusive; (c) Anthony Cook, $20,200.38, all inclusive; (d) Jeff Jaglel, $32,058.27, all inclusive, and (e) Gabe Mansueto, $20,456.07, all inclusive.
26Orders accordingly.
Perell, J.
Released: October 26, 2016
CITATION: Bonello v. Gores Landing Marina (1986) Limited, 2016 ONSC 6674 COURT FILE NO.: CV-09-383809 DATE: 20161026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY BONELLO, TED BONELLO, ANNE CUTAJAR WAGNER, ANDREW BONELLO and MARK BONELLO Plaintiffs
– and –
GORES LANDING MARINA (1986) LIMITED, JOSEPH DAVIES, and MURRAY E. CARSLAKE and JOSEPH DAVIES JR. also known as JOEY DAVIES Defendants
– and –
CHRIS KANE, CHRIS RYAN, ANTHONY COOK, GABE MANSUETO, GERALD CHESTNUT, JEFF JAGLEL, FRANK BUTTIGIEG, DAN RULE, MIKE BUTTIGIEG Third Parties
REASONS FOR DECISION – COSTS
PERELL J.
Released: October 26, 2016