Court File and Parties
Court File No.: CV-12-0317-00 Date: November 20, 2017
Ontario Superior Court of Justice
Between: Barbara Collins, Plaintiff – and – Paul Richard Burnham and Margaret Anne Burnham o/a Burnham Family Farm Market, Defendants
Counsel: Warren Whiteknight, for the Plaintiff R. Steven Baldwin, for the Defendants
Heard: November 14, 2017
Reasons on a Motion
Tausendfreund, J
[1] Each of the parties have brought a motion to resolve the issue of the quantum of costs payable by the Defendants to the Plaintiff under the terms of the Defendants’ offer to settle which the Plaintiff accepted. The position of the Plaintiff is that this matter should proceed before an assessment officer pursuant to Rule 57.04 of the Rules of Civil Procedure (“The Rules”). The Defendants counter with the position that Rule 49.09 applies. It states that where a party fails to comply with the terms of an offer, the issue may be resolved by a motion to a judge.
Facts
[2] The Plaintiff was injured when she tripped and fell in the Defendants’ parking lot. The Plaintiff suffered, among other injuries, a fractured ankle and a fractured elbow which required 4 surgeries and eventually a full elbow replacement. She started this action in 2012.
[3] The action was settled shortly before trial, as the Plaintiff accepted the Defendants’ offer to settle (“offer”) dated December 4, 2015. The terms of the offer are these:
a) The Defendants shall pay to the Plaintiff the sum of $75,000.00 for all damages; b) The Defendants shall pay the Plaintiff pre-judgment interest in an amount as assessed or agreed; c) The Defendants shall pay to the Plaintiff her costs on a partial indemnity basis to the day after this offer to settle is served; and d) This offer remains open to acceptance until five (5) minutes after the commencement of trial.
[4] The Plaintiff accepted the offer to settle on January 7, 2016, some four weeks prior to the expected start of the trial.
[5] The damages and pre-judgment interest components of the Defendants’ offer to settle are resolved. The item that apparently requires adjudication and remains unresolved is the quantum of costs and disbursements.
[6] The Plaintiff seeks costs of $42,000.00 plus HST and assessable disbursements of $49,367.36. Counsel for the Defendants took the position that these amounts are “out of proportion” to the settlement damages of $75,000.00.
[7] The parties were unable to negotiate a resolution. The Plaintiff then filed the settlement documentation and costs materials with the assessment officer and received an appointment for the assessment. The parties attended on December 2, 2016 before the assessment officer. The Defendants raised two issues:
a) The Plaintiff had erroneously brought a solicitor’s application for an assessment of costs on a solicitor and client basis; and b) The Defendants objected to the assessment by an assessment officer and took the position that this issue of costs should be decided by a judge of the Superior Court of Justice.
[8] The assessment officer held that it was not within the purview of an assessment officer to decide the objections raised by the Defendants and adjourned the assessment for a resolution of these issues by motion. This motion then followed.
Analysis
[9] With respect to the question of the apparent incorrect form, in my view, this would be an issue of form over substance. Necessary information for an adjudication of the amount of costs and disbursements were served and filed. The fact that the details of this information were recorded on the wrong form is not a matter of moment. Were it the only objection raised by the Defendants, the assessment could and should have proceeded.
[10] With respect to the Defendants position that the quantum of costs should be resolved by a Superior Court judge rather than an assessment officer, they rely on Rule 49.09 and Rule 57.01(7) of The Rules. These rules state:
49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
(a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or (b) continue the proceeding as if there had been no accepted offer to settle.
57.01(7) The court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after receiving written submissions, without the attendance of the parties.
[11] Regarding the application of Rule 49.09, I note that the Defendants have not “failed to comply with the terms of the offer”. They are prepared to pay costs, either as agreed or adjudicated. Neither has occurred. For that reason, I find that Rule 49.09 does not apply to these facts.
[12] Rule 57.01(7) is a laudable goal which justices of this court and indeed the Court of Appeal generally follow.
[13] The facts of this case lead me to consider these additional Rules:
57.04 Where a proceeding is settled on the basis that a party shall pay or recover costs and the amount of costs is not included in or determined by the settlement, the costs may be assessed under Rule 58 on the filing of a copy of the minutes of settlement in the office of the assessment officer.
58.01 Where a rule or order provides that a party is entitled to the costs of all or part of a proceeding and the costs have not been fixed by the court, they shall be assessed in accordance with rules 58.02 to 58.12.
58.02 (1) Costs shall be assessed by an assessment officer,…in the place where the proceeding was commenced or heard or in a county agreed on by the parties.
49.07 (5) Costs - Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled,
(a) where the offer was made by the defendant, to the plaintiff’s costs assessed to the date of the plaintiff was served with the offer;…
49.07(6) Incorporating into Judgment – Where an offer is accepted, the court may incorporate any of its terms into a judgment.
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[14] The meaning of the phrase “does not provide for the disposition of costs” in Rule 49.07(5) of the Rules is not entirely clear to me. On the assumption that it refers to a matter arising from the issue of costs, I note that it may be clarified by an assessment. In any event, Rule 58.01 clearly states that costs that have not been fixed by the court, shall be assessed in accordance with rules 58.02 to 58.12.
[15] My interpretation of the combined effect of the above noted rules is that, on these facts, the resolution of the appropriate amount of costs including disbursements are properly to be left to an assessment officer. In any event, absent an agreement by the parties on this question, the issue particularly of the disbursements will probably require either documentary or viva voce evidence. For that reason, there would be little to choose between an assessment officer or a judge of this court in terms of achieving an expeditious resolution.
[16] Accordingly, I find that the resolution of the quantum of costs and disbursements shall proceed before an assessment officer pursuant to Rule 57.04.
[17] As the rules which lead me to this conclusion are subject to some ambiguity of interpretation, there will be no costs of this motion.