COURT FILE NO.: 50466/08
DATE: 2018/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Foniciello, Maria Foniciello, Mary Foniciello, Lucy Foniciello, Tony Foniciello, Lindsay Foniciello, and Chelsea Price-Mullins, by her Litigation Guardian Mary Foniciello
Not appearing
Plaintiffs
- and -
James Bendall, Sandra Bendall, 1177020 Ontario Inc., o/a Acculine Pavement Markings, Acculine Road Markings, and the Corporation of the City of London
D. Rosenkrantz and L. Pool, for James Bendall and Sandra Bendall
J. Fitch and R. Khan, for 1177020 Ontario Inc., o/a Acculine Pavement Markings, Acculine Road Markings
Defendants
HEARD: February 8, 2018
DECISION ON MOTION
The Honourable Justice J. R. Henderson
INTRODUCTION
[1] This is a motion brought by 1177020 Ontario Inc., operating as Acculine Pavement Markings and Acculine Road Markings ("Acculine") for judgment on its cross-claim against James Bendall and Sandra Bendall ("the Bendalls"). The Bendalls and Acculine were previously found to be liable to the plaintiffs, and Acculine now submits that it is entitled to contribution and indemnity from the Bendalls in the degree that the Bendalls are at fault.
[2] The plaintiffs commenced this proceeding as a result of a motor vehicle accident that occurred on August 19, 2006. The plaintiffs alleged that the plaintiffs' damages were caused by a combination of the negligence of the Bendalls and Acculine. Initially, both the Bendalls and Acculine defended the plaintiffs' claims, and cross-claimed against each other.
[3] In 2012, the Bendalls negotiated a settlement agreement with the plaintiffs, pursuant to which the Bendalls paid their policy limits of $1,000,000 plus costs of $296,763.41 to the plaintiffs. Thereafter, the Bendalls did not contest the plaintiffs' claims and did not pursue their cross-claim against Acculine. However, the settlement agreement did not release the Bendalls from any further claims for contribution or indemnity.
[4] After the plaintiffs settled with the Bendalls, Acculine continued to defend the plaintiffs' claims with respect to both liability and damages, and Acculine continued to pursue its cross-claim against the Bendalls. Ultimately, a jury found that liability for damages should be apportioned 60 percent to James Bendall and 40 percent to Acculine.
[5] Subsequently, the plaintiffs' damages were assessed by the court subject to adjustments. The amount of the plaintiffs' damages was eventually fixed at $3,863,661.18. Acculine has now paid the balance of these damages to the plaintiffs, as well as costs of $1,100,000, in full satisfaction of the plaintiffs' claims.
[6] It is acknowledged that the amount paid by Acculine to the plaintiffs for damages and costs exceeds Acculine's proportionate share. That is, Acculine has paid more than 40 percent of the plaintiffs' total award.
[7] In the present motion, Acculine requests a judgment on its cross-claim such that the Bendalls will be required to contribute their proportionate share (60 percent) of the plaintiffs' damages and their proportionate share (60 percent) of the plaintiffs' costs. Acculine also requests its costs of the cross-claim. The Bendalls dispute all of the requests made by Acculine in the present motion.
THE BACKGROUND FACTS
[8] On August 19, 2006, while operating his motorcycle, Joseph Foniciello was struck by a motor vehicle owned by Sandra Bendall and operated by James Bendall. The motor vehicle collision took place at or near the intersection of Jalna Boulevard and Bradley Avenue in London, Ontario. At the time of the collision, employees of Acculine were in the process of making pavement markings on the roadway in or near the intersection.
[9] In this proceeding, the plaintiffs alleged that James Bendall was negligent in the operation of the Bendall motor vehicle, and that Acculine's employees were negligent with respect to the manner in which they conducted their work in the intersection. Further, the plaintiffs alleged that Sandra Bendall was responsible in law for the negligence of James Bendall, and that Acculine was responsible in law for the negligence of its employees.
[10] Both sets of defendants defended the plaintiffs' claims, and cross-claimed against each other.
[11] The Bendall motor vehicle was insured by a motor vehicle insurance policy with liability limits of $1,000,000. In 2012, pursuant to a settlement agreement between the plaintiffs and the Bendalls, through counsel, the Bendalls paid to the plaintiffs the $1,000,000 policy limits, plus costs of $296,763.41 (inclusive of disbursements). Thereafter, counsel for the Bendalls removed himself from the record and the Bendalls did not participate in the plaintiffs' claims or the cross-claims, except that James Bendall testified as a witness in the liability trial.
[12] The settlement agreement between the plaintiffs and the Bendalls was not a true Mary Carter or Pierringer agreement as the plaintiffs did not agree to release the Bendalls from liability for any amount over the Bendalls' several liability and the plaintiffs did not agree to indemnify the Bendalls for any contribution sought by Acculine from the Bendalls. Rather, the agreement specifically stated that the Bendalls' payment "does not release James Bendall and/or Sandra Bendall from any claims for contribution and/or indemnity from any party defendant".
[13] The settlement between the plaintiffs and the Bendalls was approved by the order of Hambly J. dated February 23, 2012. That order provided in part that it "shall not be construed or interpreted so as to extinguish or limit any claims of joint and several liability, and that the cross-claims as between the defendants shall survive".
[14] At the commencement of the trial, an order was made bifurcating the trial. The liability issues were to be tried by a jury, and the damages issues were to be subsequently tried by a judge alone.
[15] The liability trial took place between March 24, 2014 and April 4, 2014. During the course of the liability trial, all parties acknowledged that there was some negligence on the part of James Bendall and the jury was so instructed. The jury was asked to determine if there was any negligence on the part of Acculine, and if so, to provide particulars of Acculine's negligence and to determine the degree of negligence as between Acculine and James Bendall. At the conclusion of the trial, in summary, the jury found negligence on the part of Acculine and apportioned liability 60 percent to James Bendall and 40 percent to Acculine.
[16] Then, in 2015, the damages issues were tried by myself without a jury. Only the plaintiffs and Acculine participated in the damages trial, which lasted for approximately 47 days. On February 17, 2016, I released a written decision in which the plaintiffs' damages were assessed at just under $4,000,000, subject to some adjustments that needed to be made with respect to gross ups, discount rates, and statutory deductibles.
[17] Counsel for Acculine and the plaintiffs were able to resolve the adjustments to the assessment of damages, such that the total amount of the plaintiffs' damages was fixed at $3,863,661.18. Further, counsel for Acculine and the plaintiffs agreed that the plaintiffs were entitled to a further payment of $1,100,000 for the plaintiffs' costs.
[18] In September 2016, Acculine paid to the plaintiffs the sum of $2,863,661.18, representing the balance of the plaintiffs' damages, plus the sum of $1,100,000 for costs. Thereafter, the plaintiffs have had no further involvement in the cross-claims between Acculine and the Bendalls.
[19] In summary, the plaintiffs have received a total of $3,863,661.18 for damages ($2,863,661.18 was paid by Acculine and $1,000,000 was paid by the Bendalls), and the plaintiffs have received a total of $1,396,763.41 for costs ($1,100,000 was paid by Acculine and $296,763.41 was paid by the Bendalls).
THE ISSUES
[20] This motion raises the following issues:
Is Acculine entitled to judgment against the Bendalls on its cross-claim for the amount of money Acculine paid to the plaintiffs for damages in excess of 40 percent of the plaintiffs' total damages?
Is Acculine entitled to judgment against the Bendalls on its cross-claim for the amount of money Acculine paid to the plaintiffs for the plaintiffs' costs in excess of 40 percent of the plaintiffs' total costs?
Is Acculine entitled to payment from the Bendalls for Acculine's costs of Acculine's cross-claim?
What order should be made regarding the Bendalls' cross-claim?
ACCULINE'S CROSS-CLAIM FOR DAMAGES
[21] In support of its request that the Bendalls make contribution and indemnify Acculine for the amount of damages that Acculine paid to the plaintiffs in excess of 40 percent of the total damages, Acculine relies on s.1 of the Negligence Act, R.S.O. 1990, c. N.1, which reads as follows:
- Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
[22] Acculine submits, correctly, that s.1 of the Negligence Act applies where two or more tortfeasors or wrongdoers, whether jointly or severally liable, have caused a single loss to another person. See the decision in Martin v. Listowel Memorial Hospital, 2000 CanLII 16947 (ON CA), 51 O.R. (3d) 384, (OCA) at para. 48.
[23] Acculine submits that Acculine and the Bendalls are both at fault or negligent. Accordingly, Acculine submits that these defendants are jointly and severally liable to the plaintiffs for the plaintiffs' damages, and pursuant to the Negligence Act, each of these defendants is liable to make contribution and indemnify the other in the degree in which they are at fault. Therefore, as between Acculine and the Bendalls, Acculine submits that the Bendalls should pay 60 percent and Acculine should pay 40 percent of the plaintiffs' damages.
[24] Because Acculine has paid more than its 40 percent share of the damages, Acculine submits that it is entitled to the difference between the amount it paid to the plaintiffs for damages ($2,863,661.18) and 40 percent of the total damages ($3,863,661.18 x 40 percent = $1,545,464.47). Therefore, Acculine requests judgment on its cross-claim in the amount of $1,318,196.71.
[25] The Bendalls dispute the position taken by Acculine. The Bendalls submit that Acculine is not entitled to any contribution from the Bendalls on the cross-claim because s.1 of the Negligence Act does not apply in these circumstances. The Bendalls submit that the plaintiffs' damages were not caused or contributed to "by the fault or neglect" of Acculine, and therefore Acculine cannot make use of s.1 of the Negligence Act.
[26] It is the Bendalls' position that Acculine's liability to pay damages is not as a result of its fault or neglect, but it is because of Acculine's vicarious liability for the fault or neglect of Acculine's employees. The Bendalls submit that vicarious liability does not impute blameworthiness or culpability to Acculine, and therefore s.1 of the Negligence Act does not apply.
[27] In support of its position, the Bendalls rely upon several court decisions, including Lockhart v. Stinson and The Canadian Pacific Railway Co., 1939 CanLII 14 (ON CA), [1940] O.R. 140 (OCA) and Tutton v. Pickering (Town), 1999 CanLII 1452 (ON CA), [1999] O.J. No. 4811, 46 O.R. (3d) 503 (OCA).
[28] In Lockhart, the Ontario Court of Appeal was concerned with the issue of whether the defendant, Stinson, was acting within the scope of his employment with the defendant corporation at the time Stinson caused injuries to the plaintiff. In a dissenting opinion, McTague J.A. wrote at p.169, "Vicarious liability is not substituted liability.... As pointed out by Duff C.J.C. ... 'respondeat superior is a rule which does not rest upon any notion of imputed guilt or fault'.... The liability, if any, arises from the relationship".
[29] This statement of the law was confirmed by Finlayson J.A. in the Tutton decision at para. 14, as follows, "The theory behind vicarious liability is that the tort of the employee is imputed to the employer and that the employer is therefore liable for the employee's unlawful action; it is not that the employer itself has committed any wrong."
[30] Based on these decisions, I accept the legal proposition that vicarious liability for the conduct of an employee who is acting within the scope of his employment does not impute blameworthiness or culpability to the employer. Therefore, in the present case I accept that Acculine is not culpable in the first instance; it is Acculine's employees who are culpable.
[31] However, my finding that Acculine is not culpable in the first instance does not resolve the issue. The question remains as to whether s.1 of the Negligence Act applies to a party defendant who is not at fault per se, but is vicariously liable for a person who is at fault. All counsel acknowledge that there is no prior court decision directly on point.
[32] Counsel for the Bendalls submits that the principles expressed in Pickin v. Hesk and Lawrence, 1954 CanLII 120 (ON CA), [1954] O.R. 713 (OCA) may apply. In my view, the facts in the Pickin case are very different from the facts before me. Specifically, in Pickin, the issue was whether the employer, who was vicariously liable for the negligence of his employee, could use the provisions of the Negligence Act to obtain contribution and indemnity from his own employee. The court ultimately held that the employer could not do so because there were not two or more persons who were at fault. Therefore, the Pickin decision is not helpful in the present case.
[33] Consequently, in order to resolve this issue, I find that I must consider the purpose of s.1 of the Negligence Act and the basis for the doctrine of vicarious liability in the employer/employee relationship. In consideration of these factors, I find that the position taken by the Bendalls on this motion cannot succeed.
[34] The Supreme Court of Canada decision in London Drugs v. Kuehne & Nagel International, 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299 is very helpful with respect to the purpose of the doctrine of vicarious liability. In the London Drugs case, the issue was whether a clause in a written contract between the plaintiff and the defendant warehouse corporation that limited the corporation's liability to $40 also applied to limit the liability of the corporation's negligent employee for whom the corporation was vicariously liable. In summary, the majority in the Supreme Court of Canada held that the limiting clause in the contract between the corporate defendant and the plaintiff also applied to the corporation's employees.
[35] LaForest J. considered the foundations of the vicarious liability doctrine and the policy reasons behind that doctrine at pages 334-343 of the London Drugs decision.
[36] Among other things, LaForest J. observed that the policy reasons behind the doctrine of vicarious liability included the perception that the employer is better placed to incur liability than the employee; that the doctrine allowed a plaintiff access to the deep pockets of the company, even where the company is blameless in any ordinary sense; that the doctrine promoted a wide distribution of tort losses since the employer was most suitable for passing them on through liability insurance and higher prices; and that the doctrine could also be assessed from the perspective of deterrence.
[37] At p. 339, LaForest J. summarized his analysis as follows:
It is apparent that the vicarious liability regime is not merely a mechanism by which the employer guarantees the employee's primary liability. The regime responds to wider policy concerns than simply the desire to protect the plaintiff from the consequences of the possible and indeed likely incapacity of the employee to afford sufficient compensation, although obviously that concern remains of primary importance. Vicarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents.
[38] I have also considered the purpose of s.1 of the Negligence Act. In Martin at para. 34 the Ontario Court of Appeal stated:
The effect of s.1 of the Negligence Act is to make all persons sued who caused or contributed to the damage suffered by the plaintiff jointly and severally liable to the plaintiff for the damage.... The purpose of the legislation is to facilitate full recovery of the loss for the plaintiff, while at the same time providing a mechanism for each of those who contributed to the loss to share the financial responsibility in the proportions of their respective degrees of fault.
[39] Clearly, one of the purposes of s.1 is to provide a mechanism that requires the responsible parties to pay damages in accordance with their proportionate share of liability. That is, the purpose of this section of the Negligence Act is to promote the logical and efficient allocation of financial responsibility where a plaintiff suffers damages that are caused by a combination of two or more tortfeasors in circumstances in which the precise damage caused by each tortfeasor cannot be easily determined.
[40] The Negligence Act gives the plaintiff in those circumstances the right to sue each of the responsible parties and to obtain judgment, and thereafter to enforce the full amount of the judgment, or any portion of it, against any or all of the responsible parties, up to a maximum of 100 percent of the total damages. This is a logical and efficient way to deal with an injured plaintiffs' entitlement to pursue and enforce a damages claim.
[41] Then, to be fair to the responsible parties, s.1 of the Negligence Act provides that whatever the plaintiff may choose to do, the loss is to be shared between those responsible for the damages in proportion to fault. Again, this is a logical and efficient procedure.
[42] In my view, when considered in combination with the vicarious liability doctrine, s.1 of the Negligence Act should be construed as a mechanism for allocating financial responsibility between those parties who are legally responsible for the damages in accordance with their proportionate share of liability.
[43] I find that the position taken by the Bendalls on this motion would undermine the purposes of the doctrine of vicarious liability and s.1 of the Negligence Act, as discussed above. That is, I find that the Bendalls' position inhibits the logical, efficient, and fair allocation of financial responsibility for the plaintiffs' damages.
[44] Specifically, if the Bendalls' position on this motion was to succeed, it is possible that one of the defendants would be forced to overpay a plaintiff, but the overpaying defendant would have no remedy against the underpaying defendant. That is, one of the defendants would receive a windfall and the other would be penalized. There is no logic or fairness to that interpretation of the Negligence Act.
[45] In addition, in my view, if the Bendalls' position was to succeed, it could be detrimental to an injured plaintiff because it is likely that some defendants would intentionally be uncooperative with a plaintiff, hoping that the plaintiff would vigorously pursue a more cooperative defendant. If the plaintiff was able to enforce against a cooperative defendant, there would be no mechanism to compel the obstreperous underpaying defendant to pay its proportionate share. This is not a policy that should be endorsed by this court.
[46] Furthermore, it must be remembered that a corporation such as Acculine can only act through individuals such as employees or officers of the corporation. A corporation therefore cannot commit a tort unless that tort is in fact committed by a person acting within the scope of his/her authority with the corporation. That fact is one of the foundations for the doctrine of vicarious liability in the employee/employer relationship.
[47] If s.1 of the Negligence Act was interpreted to mean that only the negligent employee of a corporation, but not the vicariously liable corporate employer, could engage the section, then a corporation may never fall within s.1 of the Negligence Act. That is, a vicariously liable corporation may never engage s.1 of the Negligence Act for negligence committed in the corporate name by its employee. In my view, it could not have been the intention of the legislature to exclude the vast numbers of vicariously liable corporations that might otherwise engage s.1 of the Negligence Act.
[48] In consideration of this analysis, I find that the proper way to interpret s.1 of the Negligence Act is to take a two-step approach. First, the court should determine the apportionment of fault as between the actual tortfeasors. Second, the court should determine the liability to pay for each tortfeasors' share of the damages as apportioned at the first step.
[49] In the present case, the actual tortfeasors are in fact James Bendall and Acculine's employees. They are at fault in the first instance. At the first step, fault is apportioned 60/40 between them and each is entitled to contribution and indemnity pursuant to the Negligence Act.
[50] At the second step, the liability step, Acculine is liable or responsible for Acculine's employees' share of the damages, and similarly Sandra Bendall is jointly and severally liable for James Bendall's share of the damages.
[51] For these reasons, I find that Acculine is entitled to judgment on its cross-claim against the Bendalls in the amount of $1,318,196.71.
ACCULINE'S CROSS-CLAIM FOR THE PLAINTIFFS' COSTS
[52] Acculine states correctly that where defendants are found to be jointly and severally liable to a plaintiff for damages, the usual rule is that the defendants will be jointly and severally liable for the plaintiffs' costs in the same proportion as liability. See the case of Hill v. Church of Scientology of Toronto, 1994 CanLII 10572 (ON CA), 18 O.R. 3d 385 (OCA) at para. 248, and Pressler v. Lethbridge, 2001 BCSC 694 at paras. 5-11.
[53] Therefore, Acculine submits that it is entitled to the difference between what it paid to the plaintiffs for costs ($1,100,000) and its share of the plaintiffs' total costs ($1,396,763.41 x 40 percent = $558,705.36). Thus, Acculine claims to be entitled to indemnity for costs from the Bendalls on its cross-claim in the amount of $541,294.64.
[54] However, despite the abovementioned usual rule, all parties acknowledge that pursuant to s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, this court retains a broad discretion with respect to the award of costs.
[55] That judicial discretion was confirmed by the Ontario Court of Appeal in the Martin case. The circumstances in the Martin case were unusual. In Martin, the plaintiffs sued three doctors, two ambulance attendants, and the hospital for damages. The doctors and the ambulance attendants were initially not in the action, but were later added to the action. Still later, the doctors settled with the plaintiffs on the eve of trial. The matter proceeded to trial against the ambulance attendants and the hospital. The ambulance attendants were found not to be negligent. The hospital was found to be negligent with respect to the training and instruction of its employees, and also vicariously liable for the negligence of a nurse.
[56] At paras. 82, 83, and 84 of the decision, the court confirmed that the disposition of costs is a matter of judicial discretion, and that no particular rule of law governed the disposition of costs in actions such as the one before the court. I accept that to be the case in the present action.
[57] I therefore have considered a variety of costs factors in this particular case. First and foremost, I find that the Bendalls made valiant attempts to settle the plaintiffs' claim early in the process. Ultimately, those attempts resulted in the settlement agreement between the Bendalls and the plaintiffs, although the settlement agreement was not a full and final resolution of the plaintiffs' claim against the Bendalls.
[58] Further, I accept that the Bendalls' payment of their policy limits plus costs was almost all the Bendalls could do at that point in the proceedings. The only other possibility was that the Bendalls could have offered to pay personally out of pocket an amount in excess of their policy limits, but I accept that the Bendalls were reluctant to do so given the position taken by Acculine.
[59] In addition, I note that the Bendalls, through counsel, conceded at least some liability from an early stage in the process. By the time the matter came to court for the liability trial, the Bendalls had paid their policy limits and had conceded at least some liability. Therefore, I accept that the Bendalls took reasonable steps to try to resolve the claim, and reduce costs.
[60] I also have considered that after the Bendalls "settled" with the plaintiffs, the Bendalls did not participate in either the liability trial or the damages trial. That is, the Bendalls did not actively do anything after the settlement agreement that would have increased the costs of the plaintiffs.
[61] On the other hand, Acculine fully contested the plaintiffs' claims both on liability and damages. Therefore, most of the costs of the plaintiffs from at least the point of the settlement with the Bendalls were as a result of the dispute between the plaintiffs and Acculine.
[62] I also accept that Acculine had opportunities to resolve the plaintiffs' claim for reasonable amounts, but did not take advantage of those opportunities. I find that the plaintiffs served an offer to settle in October 2011 whereby the plaintiffs offered to accept the sum of $1,000,000 plus interest plus costs from Acculine in full satisfaction of the claim. That offer was subsequently withdrawn. Then, in March 2014 the plaintiffs served an offer on Acculine just before the start of the liability trial to resolve the claim for $1,750,000 plus costs.
[63] In my view, Acculine's response to the settlement proposals put forward by the plaintiffs suggested that Acculine was taking a strong position in defence of the plaintiffs' claim, and consequently increased the plaintiffs' costs.
[64] That being said, it cannot be forgotten that it was James Bendall's negligence that was a contributing cause to the plaintiffs' damages to the extent of 60 percent. Thus, in that broad sense, the Bendalls are responsible for 60 percent of all of the plaintiffs' damages and costs, subject to the discretion of the court with respect to the conduct of the parties.
[65] Moreover, the apportionment of liability was not determined until the completion of the liability trial. Although the Bendalls did not participate in the liability trial, the Bendalls did not concede 60 percent liability. Their proportionate share of liability was determined by the jury verdict in the liability trial. Furthermore, the exact amount of the damages was not determined until the damages trial was completed.
[66] Considering all of those factors, in my view, it is appropriate for the Bendalls to pay 60 percent of the plaintiffs' costs up to and including the liability trial. Thereafter, the Bendalls should not pay any portion of the plaintiffs' costs.
[67] The next problem is the calculation of 60 percent of the plaintiffs' costs to the end of the liability trial. The Bendalls have paid costs to the plaintiffs of $250,000 for fees and $46,763.41 for disbursements as of a date in 2012 that is prior to the start of the liability trial. Acculine has paid costs to the plaintiffs of $1,100,000 inclusive of fees and disbursements. There is no breakdown in the costs paid by Acculine between fees and disbursements. There is no breakdown in either payment between liability and damages.
[68] To resolve this issue I accept Acculine's calculations that the fees breakdown provided by the plaintiffs shows that the plaintiffs' fees to the end of the liability trial amounted to $561,000. Using the 60/40 apportionment, the Bendalls are responsible for $336,600 and Acculine is responsible for $224,400 of that amount. Thus, there is a shortfall of $86,600 ($336,600 less $250,000) between what the Bendalls paid to the plaintiffs for fees and what the Bendalls should have paid. That shortfall has been paid by Acculine.
[69] I have no breakdown of disbursements at all. Given the amount of trial time and the number of expert witnesses presented by the plaintiffs, I will assume that the amount already paid by the Bendalls for disbursements is roughly equal to the Bendalls' proportionate share of the disbursements to the end of the liability trial. Accordingly, I will not make any adjustments to these figures for disbursements.
[70] Therefore, I find that Acculine is entitled to judgment on its cross-claim against the Bendalls for the plaintiffs' costs in the amount of $86,600.
ACCULINE'S COSTS OF ITS CROSS-CLAIM
[71] Because Acculine was successful on the cross-claim, Acculine is entitled to its costs of the cross-claim against the Bendalls, including the costs of this motion. That being said, the Bendalls should not pay Acculine its costs for Acculine's defence of the plaintiffs' claims.
[72] In my view, Acculine's costs of the cross-claim will not be excessive given that most of the time spent by Acculine's counsel was in regard to defending the plaintiffs' claims.
[73] On this point, I accept the submission of counsel for the Bendalls that it is incumbent on Acculine to provide a detailed bill of costs with supporting material that breaks out the work and time spent by Acculine's lawyers on the cross-claim. I also accept that it may be necessary for the Bendalls to cross-examine on Acculine's bill of costs and supporting material.
[74] Accordingly, I order that Acculine shall within 30 days provide an affidavit with respect to the costs of its cross-claim that includes a bill of costs and supporting material. The costs detailed in the bill of costs should also include the costs of the present motion. After the delivery of this affidavit, the Bendalls may choose to cross-examine on the affidavit if they wish to do so. Thereafter, counsel shall attempt to resolve the issue of costs of Acculine's cross-claim, failing which counsel may arrange to appear before me on a motion for a costs order.
THE BENDALLS' CROSS-CLAIM
[75] I find that the Bendalls did not pursue its cross-claim, and, in any event, the Bendalls have no claim for contribution or indemnity from Acculine. Therefore, the Bendalls' cross-claim against Acculine is dismissed without costs.
SUMMARY AND CONCLUSION
[76] For the reasons set out herein, it is ordered and adjudged:
Acculine shall have judgment on its cross-claim against the Bendalls in the amount of $1,318,196.71 for the plaintiffs' damages.
Acculine shall have judgment on its cross-claim against the Bendalls in the amount of $86,600 for the plaintiffs' costs.
Acculine shall within 30 days provide an affidavit with respect to the costs of its cross-claim that includes a bill of costs and supporting material. The Bendalls shall be entitled to cross-examine on the affidavit if they choose to do so. Thereafter, counsel may arrange to appear before me on a motion for a costs order.
The Bendalls' cross-claim against Acculine is dismissed without costs.
J. R. Henderson J.
Released: March 8, 2018
COURT FILE NO.: 50466/08
DATE: 2018/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Foniciello, Maria Foniciello, Mary Foniciello, Lucy Foniciello, Tony Foniciello, Lindsay Foniciello, and Chelsea Price-Mullins, by her Litigation Guardian Mary Foniciello
Plaintiffs
- and -
James Bendall, Sandra Bendall, 1177020 Ontario Inc., o/a Acculine Pavement Markings, Acculine Road Markings, and the Corporation of the City of London
Defendants
REASONS FOR JUDGMENT
J R. Henderson J.
Released: March 8, 2018