CITATION: C. Tapak, et al v. Non-Marine Underwriters, et al, 2017 ONSC 6569
COURT FILE NO.: CV-16-0091-00
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CARRIE ANNE TAPAK, DENNIS CROMARTY, FAYE EVANS, PAM MEADY, JENNIFER ESTERREICHER, ANTHONY CLOWES and JONATHAN THERIAULT
Christopher D.J. Hacio, Hacio Law, for the Plaintiffs
Plaintiffs
- and -
NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD’S OF LONDON also known as LLOYD’S OF LONDON
Amanda McBride and Daniel Michaud-Shields, McBride & Shields PC, for the Defendant
Defendant
HEARD: Via Written Submissions
Madam Justice B. R. Warkentin, R.S.J.
Reasons on Costs
[1] In paragraph 76 of my Reasons on the Motion for Summary Judgment, dated July 13, 2017 I found in favour of the Defendant and directed the parties to make written submissions on Costs within 20 days.
[2] Counsel for the Defendant is seeking costs on a substantial indemnity basis inclusive of HST and disbursements of $73,904.88. In the alternative, the Defendant’s partial indemnity costs total $58,976.58.
[3] Counsel for the Plaintiffs argued that the Defendant is not entitled to substantial indemnity costs and that the amount claimed by counsel for the Defendant is excessive. Counsel for the Plaintiffs argued that costs in the range of $20,000.00 inclusive of disbursements would be an appropriate award.
[4] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[5] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[6] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (Ont CA) at para 37).
[7] In their submissions, counsel for the Defendant suggests that substantial indemnity costs may be awarded in two circumstances, where there has been an offer to settle under Rule 49.10 of the Rules of Civil Procedure or where there is reprehensible conduct.
[8] Counsel for the Defendant did not identify any offers to settle and did not set out conduct that she alleged was reprehensible. My reasons in the Summary Judgment motion did not suggest there was reprehensible conduct by any party. I am therefore not prepared to consider an award of substantial indemnity costs.
[9] While the legal issues in this matter were complex the factual issues were known to the lawyers due to the long history of the related personal injury litigation.
[10] Counsel for the Defendant has set out in excess of 268 hours spent in dealing with the issues in this case including the Motion for Summary Judgment. I agree with Counsel for the Plaintiffs that there is overlap in the hours claimed. For example, two lawyers attended many of the proceedings on behalf of the Defendant; clerical expenses were charged in addition to legal fees; and some of the hours charged were for motions or other proceedings in which no costs had been claimed or where the Defendant was unsuccessful in certain motions.
[11] Having considered the Defendant’s Bill of Costs in light of these issues, I find that a reasonable award of costs on a partial indemnity scale is $25,000.00 inclusive of HST and disbursements. The Plaintiffs shall therefore pay the Defendants $25,000.00 in costs.
Madam Justice B. R. Warkentin, R.S.J.
Released: November 02, 2017
CITATION: C. Tapak, et al v. Non-Marine Underwriters, et al, 2017 ONSC 6569
COURT FILE NO.: CV-16-0091-00
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CARRIE ANNE TAPAK, DENNIS CROMARTY, FAYE EVANS, PAM MEADY, JENNIFER ESTERREICHER, ANTHONY CLOWES and JONATHAN THERIAULT
Plaintiffs
- and –
NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD’S OF LONDON also known as LLOYD’S OF LONDON
Defendant
REASONS ON COSTS
B. Warkentin R.S.J.
Released: November 02 2017