Court File and Parties

CITATION: Cooke Aquaculture Inc. v. Continental Casualty Company, 2017 ONSC 6654

COURT FILE NO.: CV-15-00530714

HEARD IN WRITING: 20171106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cooke Aquaculture Inc. and True North Salmon Company, Plaintiffs

AND:

Continental Casualty Company carrying on business as CNA Canada, Defendant

BEFORE: Master B. McAfee

HEARD IN WRITING: November 6, 2017

Supplementary Reasons for Decision - Costs

[1] The plaintiffs Cooke Aquaculture Inc. and True Salmon Company (collectively Cooke) brought a motion for answers to refusals given on the examination for discovery of Mr. Randall, claims adjuster, a representative of the defendant Continental Casualty Company carrying on business as CNA Canada (CNA) held on June 21, 2016. The motion proceeded on May 30, 2017 and July 31, 2017. Reasons for decision were released on September 11, 2017.

[2] My reasons stated that if the parties were unable to agree on costs after reasonable attempts to resolve the issue of costs had been made, written submissions on costs may be submitted to me. I timetabled the delivery of written submissions. Any party requesting costs was required to deliver written submissions on or before October 16, 2017. Any responding submissions were required to be delivered on or before October 27, 2017. Any reply submissions were required to be delivered on or before November 1, 2017.

[3] Cooke delivered submissions requesting costs on or before October 16, 2017. Cooke seeks costs of the motion on a partial indemnity basis in the all-inclusive sum of $9,000.00.

[4] CNA did not deliver submissions requesting costs on or before October 16, 2017. CNA’s responding submissions delivered on October 27, 2017, include a request for CNA’s costs in the all-inclusive sum of $6,150.27.

[5] The parties did not make any attempt to resolve the issue of costs prior to the October 16, 2017, deadline for delivery of submissions from any party requesting costs. Cooke served an offer to settle costs with Cooke’s written submissions on costs. The offer to settle was not before me.

[6] The refusals listed in category no. 1 were ordered to be answered. The refusals listed in category no. 2 were not pursued based on advice from CNA that the underwriting file was lost. This advice was provided after the first day of the motion. Costs were incurred unnecessarily by Cooke as a result of this late advice. The refusals listed in category no. 3 were not ordered to be answered. This is the category of refusals that was the most complex. The refusal that was pursued in category no. 4 was ordered to be answered. The refusals in category no. 5 were ordered to be answered to the extent that they had not been answered.

[7] I am satisfied that Cooke is entitled to some costs of the motion given the success on three of the four categories of refusals pursued and also as a result of the costs incurred unnecessarily with respect to category no. 2. However, the costs sought are reduced to reflect that Cooke was not successful on the refusals in category no. 3.

[8] In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43 and having regard to the relevant factors set forth at R. 57.01(1), I fix costs on a partial indemnity basis in the all-inclusive sum of $5,000.00, which in my view is a fair and reasonable amount that CNA could expect to pay for costs in all of the circumstances of the motion. The costs are payable by CNA to Cooke within 30 days.

Master B. McAfee

Date: November 6, 2017