CITATION: Paolucci v. John Doe, 2016 ONSC 680

NEWMARKET COURT FILE NO.: 14-119551

DATE: 20160201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathryn Danielle Paolucci, Plaintiff

AND:

John Doe and Economical Insurance Company, Defendant

BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN

COUNSEL: S. Sieger, Counsel for the Plaintiff

P. Cianfarani, Counsel for the Defendant

HEARD: By written submissions

COSTS ENDORSEMENT

Overview

[1] The plaintiff has made a claim against Economical for unidentified motorist coverage. That claim had two components:

(i) the $200,000 standard coverage under the Ontario Automobile Policy (OAP); and

(ii) an additional $800,000 under the OPCF 44R Endorsement (OPCF 44R).

[2] Economical sought an Order dismissing both aspects of the plaintiff’s claim against it. In the alternative, Economical sought partial summary judgment dismissing the plaintiff’s claim under the OPCF 44R only. I granted the alternative relief sought by Economical.

[3] The parties have provided written submissions on the issues of costs.

Positions of the Parties

Economical’s Position

[4] Economical takes the position that it was substantially successful on the motion. As a result of the ultimately unsuccessful strategy chosen by the plaintiff in attempting to resist the motion (by seeking to call viva voce evidence from an expert engineer and then attempting to refer to an engineering report as evidence during submissions), Economical was required to respond to two additional and significant interlocutory evidentiary matters which arose during the course of the motion, adding time and expense to both the preparation for and hearing of the motion. Economical argues that the aspect of the plaintiff’s claim under the OPCF 44R had to fail for lack of corroboration; the plaintiff’s rejection of an oral offer from Economical to resolve the motion on the basis that the plaintiff abandon only her claim under the OPCF 44R meant that Economical was required to proceed with the motion. Economical seeks its costs on a partial indemnity scale in the amount of $16,087.38, inclusive of disbursements and HST.

The Plaintiff’s Position

[5] The plaintiff’s position is that Economical sought to dismiss the plaintiff’s claim outright with costs. It failed to do so, achieving only partial success. Normally, Economical might be entitled to some costs for its efforts, but the plaintiff submits that she should receive some of her costs or, in the alternative the parties should bear their own costs. Argument on the admissibility of the expert’s evidence did not result in the expenditure of significant time; had the corroborative evidence been admitted it might have been sufficient to meet the OPCF 44R requirements. Economical ought to have known that it would be unsuccessful on its motion in relation to the standard coverage under the OAP. The plaintiff takes issue with the use by Economical of “without prejudice” communications in its costs submissions. Lastly, Economical’s “hardline” position left the plaintiff with no real choice but to proceed with the motion. The plaintiff seeks up to half of her partial indemnity costs of $21,315.62, inclusive of disbursements and HST.

Legal Principles

[6] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 clothes the court with its general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs: Zandersod Company Limited v. Solmar Development Corp., 2011 ONSC 3874 at para. 11.

[7] In particular, the court may consider any of the following factors:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(iii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[8] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.).

Analysis

[9] Success was divided. Although Economical’s request for summary judgment in relation to coverage under the OPCF 44R was granted, the plaintiff was successful in resisting Economical’s request for summary judgment in relation to coverage under the OAP. The claim for coverage under the OPCF 44R was the least factually and legally complex issue on the motion. Given the evidence, it was clear that there had to be a trial with respect to the OAP coverage and whether the plaintiff is able to prove, on a balance of probabilities, that an unidentified vehicle was involved. The evidence was not such that a court could fairly decide the OAP coverage issue on a summary judgment motion. Although the plaintiff was unsuccessful on the two evidentiary matters she raised, these did not significantly increase the time required to argue the motion. The oral offer to resolve the motion on the basis that the plaintiff abandon her claim under the OPCF 44R, which was responded to in the “without prejudice” email of the plaintiff (correspondence that had potential relevance to the issue of costs), was not an offer within Rule 49 and as such, does not attract the cost consequences set out therein.

[10] Considering all of the relevant factors, the submissions of the parties and the divided success on the motion, I find that each party should bear its own costs of the motion.

Conclusion

[11] Accordingly, there shall be no order as to costs payable by either party.

QUINLAN J.

Date: February 1, 2016