Court File and Parties

Citation: 2129152 Ontario Inc. v. Aviva Insurance Company of Canada, 2017 ONSC 6928

Court File No.: CV-15-540139

Date: 2017-11-22

Superior Court of Justice - Ontario

Re: 2129152 Ontario Inc., Plaintiff

And: Aviva Insurance Company of Canada, Defendant

Before: Carole J. Brown, J.

Counsel: Andrew Porter, for the Plaintiff Rovena Hajderi, for the Defendant

Heard: In-Writing

Costs Endorsement

[1] The responding party, Aviva, seeks its costs of the summary judgment motion brought by the party plaintiff, 2129152 Ontario Inc. Pursuant to my Endorsement of August 23, 2017, I dismissed the motion for summary judgment on the ground that there were genuine issues requiring a trial.

[2] Aviva sought its total costs of $29,522.82 on the basis that the summary judgment motion was dismissed. The defendant states that it served an offer to settle dated June 12, 2017, which, if accepted, would have settled the entire proceeding on the terms set out therein, including a full and final release of the action.

[3] The costs sought by Aviva are on a partial indemnity basis in the amount of $13,359.90 to the date of the service of the offer to settle on June 12, 2017 and on a substantial indemnity basis thereafter in the amount of $14,247, plus disbursements in the amount of $1915.92. In this case, no determination of the matter was made, as indicated below, as I dismissed the motion for summary judgment and ordered that it proceed to trial expeditiously.

[4] This Court found that there were genuine issues requiring a trial and that the Court was unable to make a fair and just determination on the merits of the case based on the motion record before the Court. I held as follows “I am of the view that in the circumstances of this case and based on the evidence before me, a fair and just determination of the issues before the Court can only be made on a full evidentiary record, with viva voce evidence and, potentially, assessment of credibility, as necessary, in order to reach a fair and just determination of the issues on the merits. I do not find summary judgment, in the circumstances of this case, is a proportionate, more expeditious and less expensive means to achieve a just result.” Accordingly, the motion was dismissed.

[5] I observed, that “The parties have agreed and confirmed at the time of the hearing of this motion that in the event the summary judgment motion is not successful, the plaintiff will proceed to an appraisal under the Insurance Act. Given this agreement, I do not propose to make any ruling as regards the applicability pursuant to the Insurance Act of an appraisal, as originally requested by Aviva in its cross-motion” (paragraph 36).

[6] I further observed: “I understand that the parties wish to proceed on the basis of their agreement in this regard to an appraisal pursuant to the Insurance Act, sections 128 and 148. Otherwise, the action is to proceed expeditiously to trial.” The Endorsement further summarized the areas of dispute at paragraphs 42 to 44 of the Endorsement and concluded that “these issues in turn affect the outcome of the other issues raised” (paragraphs 42-45).

[7] Based on my Endorsement, it is clear that no issues were finally determined. Rather the determination of all issues was left for decision at trial on a full evidentiary record. While this Court acknowledged that the parties had agreed that they would attempt to go to appraisal under the Insurance Act, rather than to a trial to try to settle their differences, it nevertheless, ordered that if the action did not proceed to an appraisal, it would proceed expeditiously to trial.

[8] As regards costs, I am guided by Rules 20.06 and 57 of the Rules of Civil Procedure. I have further considered the cases relied upon by the parties, and particularly Hanson Pipe & Products Canada Inc. v 903305 Ontario Ltd., [2006] O.J. No. 1072; Marini v Muller, [2001] O.J. No. 259 and Greer v Homer, [2008] O.J. No. 3093. I am satisfied that this is an appropriate case for the exercise of this Court’s discretion to order costs in the cause.

[9] Based on all of the evidence and submissions before me, and the discussions regarding and summarization of issues for trial, I do not find it to have been unreasonable for the plaintiff to bring this summary judgment motion. The plaintiff had an arguable case.

[10] The motion served to narrow issues further and to focus the parties on their cases. Based on all of the evidence in this matter, I accept the submissions of the plaintiff regarding extensive cross-examinations held on the motion that will significantly shorten examinations for discovery. The parties have now had the opportunity to brief their legal positions for trial.

[11] I am of the view that the costs should be fixed at this juncture. The defendant sought its costs in the amount of $29,522.82 based on an offer to settle which it served and calculation of costs thereafter on a substantial indemnity basis. The plaintiff calculated the defendant’s total costs in the amount of $26,522.82. The defendant offered to settle costs in the amount of $25,000. I fix the costs payable in the cause in the amount of $22,500 all-inclusive.

Carole J. Brown, J.

Date: November 22, 2017