Foster v. Durkin, 2016 ONSC 684

CITATION: Foster v. Durkin, 2016 ONSC 684

COURT FILE NO.: C-65-12

DATE: 2016-02-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Denise Foster and Alitha Major

Plaintiffs

– and –

Jacalyn Durkin

Defendant

Mark S. Grossman and Gretchen Reitzal, Counsel for the Plaintiff

William G. Woodward, Counsel for the Defendant

Robert A. Van Praet, Counsel for the Defendant

THE HONOURABLE MR. JUSTICE R.D. REILLY

RULING ON COSTS

1I have now received and considered written submissions on costs form counsel for the plaintiffs and for the defendants. The action arose from a motor vehicle accident that took place on June 20, 2011. The trial began on November 16, 2015 before a jury and lasted two weeks.

2One of the plaintiffs, Alitha Major, involved herself as a litigant until the eve of trial, when she, in effect, abandoned her claim and took no part in the trial.

3The defendant, with some merit, claims she should be entitled to costs against Alitha Major to the point when she abandoned her claim, and the litigation. As I noted, there is some merit to that position.

4However the plaintiffs were both represented by the same counsel throughout the proceeding. The object of the court is, at least in part, to be fair to all parties. I am going to consider and assess the costs which the remaining plaintiff is entitled to by reducing such costs in a fair proportion that would represent, for instance, counsel’s work for Aletha Major prior to trial.

5The jury finally determined that the defendant was 80 per cent responsible for the accident and the plaintiff was 20 per sent responsible. Irrespective of responsibility the jury awarded damages to the plaintiff for past lost income of $35,226.00. For future loss of income the jury awarded $105,378.00, and for general damages the jury awarded damages of $60,000.00. Total damages awarded by the jury were therefore $200,604.00.

6Taking into account the apportionment awarded by the jury (80 per cent for the defendant) the total damage award was $200,604.00. Reduced by the apportionment of responsibility for the accident, the damage award would be $160,480.00.

7The defendant brought, at the end of the trial, a “threshold” motion” pursuant to section 267.5(5)(b) of the Insurance Act RSO. 1900 c. 1.8.1. I dismissed the motion and take into consideration the costs associated thereto in my assessment of the costs of this action.

8I am mindful of Rule 57 of the Rules and the jurisprudence cited by counsel with respect to the rules. I do not intend to analyse in detail the factors which determine the costs I shall award. I am also mindful of the submissions of counsel in this regard.

9The award of the jury, based on the evidence at trial, is largely supportive of the plaintiff. It is clearly less than the original claim by the plaintiff, and is in excess of the formal offer to settle of the defendant.

10The parties participated, as I understand it, in three pre-trials with an experienced judge (one conference was a “mid-trial”). It is to be regretted that theses attempts at resolution were not more successful, in order to avoid the considerable costs to both the plaintiff and the defendant.

11At trial there was only one plaintiff. The defendant has formally sought costs against the other plaintiff, Alitha Major, prior to her departure from the litigation. I decline to complicate this analysis by awarding such costs, but would emphasize that I consider her participation as a plaintiff up to the trial, in assessing, for instance, counsel fees for the plaintiff’s counsel, when he was representing both plaintiffs.

12Putting aside the unsuccessful attempts, formally or informally, to settle the litigation, it can only be said that the plaintiff was successful in the litigation; not as successful as she originally hoped, but still successful. Thus she is entitled to an award of costs, on a reasonable partial indemnity basis.

13I have carefully considered both the costs submissions of both the plaintiffs and the defendants. I have also considered their bills of costs.

14I am aware that the amount recovered was less than of the amount claimed. Yet it was still a substantial amount. It is to be regretted that the parties did not benefit from the pre-trial discussions (including a mid-trial discussion) to resolve this litigation to avoid the substantial costs to both parties of the trial.

15In analyzing the written submissions of counsel, I believe that disbursements claimed by the plaintiff’s counsel are generally reasonable. I discount the fee paid to DAS Insurance for reasons that were well expressed by Milanetti J. in Markovic v Richards et al (2015) ONSC 6983, in particular at para. 7.

16I have reduced counsel fees somewhat to reflect the counsel fees that are appropriate for the defendant who withdrew from the litigation. I have also considered the principle of proportionality, the original claim of the plaintiff and the amount received by the judgment.

17I have concluded that the plaintiff should be entitled to an awards for costs in the amount of $72, 000.00, inclusive of disbursements and G.S.T.

R.D. Reilly J.