Court File and Parties

CITATION: Victess Capital Corporation v. Intact Insurance Company, 2016 ONSC 8112

COURT FILE NO.: CV-13-494821

DATE: 2016-12-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Victess Capital Corporation, operating as Adamson, Sullivan, Grys, Peters Insurance Brokers, aka AGSP Insurance Brokers, Plaintiffs

AND:

Intact Insurance Company, Defendant

BEFORE: S. F. Dunphy, J.

COUNSEL: Dennis M. O’Leary, for the Plaintiffs

Cara Zacks, for the Defendant

READ: December 22, 2016

COSTS ENDORSEMENT

[1] I released my reasons for judgment in this matter on December 13, 2016 but reserved on the matter of costs pending receipt of submissions: Victess Capital Corporation v Intact Insurance Company, 2016 ONSC 7838. I have now received and reviewed the submissions of the parties.

[2] The successful defendant has filed a costs outline detailing partial indemnity costs of $44,390.72 on a partial indemnity basis. It asks for an award of costs in that amount, submitting that its conduct of the litigation, time and expenses charged were all reasonable in the circumstances.

[3] The plaintiff on the other hand submits that the amount claimed is grossly disproportionate and excessive. The plaintiff’s full indemnity costs are about 60% of the claimed partial indemnity costs. The plaintiff asks for credit for the steps it took to reduce and minimize costs having regard to the amount at issue (approximately $53,000) and notes that the defendant produced documents and a witness at trial to establish facts that the plaintiff was not disputing and readily admitted.

[4] There are a number of principles at play when assessing costs. These do not all pull in the same direction which is why the process is inherently discretionary.

[5] The principle of indemnity and the idea that one ought not to impose hindsight to second-guess each step taken along the road by the successful party to achieve that success both pull strongly in favour of the successful defendant’s cause.

[6] Pulling with considerable force in the opposite direction are the principle of the reasonable expectations of the losing party and proportionality (particular in view of the amount at issue and the narrow questions on which the case was finally decided).

[7] Somewhere in between these two magnetic forces lies the principle that the court’s role in assessing costs is not to be confined to the clerk’s role of counting hours and applying rates – that process is but one of the inputs into the process.

[8] The result must be one that is fair and reasonable in all of the circumstances. I can do no more than take all of these factors into account and try to fashion a result that is as fair as I can make it.

[9] I have determined that a costs award of $24,000 all inclusive is the nearest I can come to a satisfactory result. To paraphrase an opinion an actuary once gave me, it is the least wrong of all of the numbers that could be proposed.

[10] The plaintiff shall pay the defendant costs of this action that are hereby fixed at $24,000 all inclusive.

S. F. Dunphy, J.

Date: December 23, 2016