Court File and Parties

Court File No.: CV-15-6199 Ontario Superior Court of Justice

Endorsement

Plaintiffs: ALYKHAN KANANI a person under a disability by his Litigation Guardian Gisele Kanani, Gisele Kanani, Litigation Administrator for the Estate of AZADALI KANANI, GISELE KANANI and SHAHEEDKHAN KANANI Counsel: Almeda Wallbridge

Defendants: ECONOMICAL INSURANCE COMPANY, BRIAN CLIFFORD, TRACY BROSS, PEGGY KNOX, HELEN BAILEY, LINDA WATT, MARIE YEE, ACCLAIM DISABILITY MANAGEMENT INC., ANNE DESJARDINS, CATHY PRIOR, CATHY TAIT, THE PUBLIC GUARDIAN AND TRUSTEE, VANI SANTI, ELIZABETH PROBIZANSKI, ROXANNE MAYER VARCOSE, ANDREA WATSON, DAN SKWAROK, MURRAY MISKIN, and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL Counsel for the Defendants Economical Mutual Insurance Company, Brian Clifford, Tracy MacDonald (Bross), Peggy Knox, Helen Bailey, Linda Watts and Marie Yee: Evan Bawks

Heard: June 6, 2018

ADDENDUM ON COSTS

[1] My Endorsement released June 28, 2018 ended as follows:

“If these litigants are unable to agree as to appropriate costs award for this Motion, any party seeking costs shall within 15 days provide written submissions (up to five pages) supported by a Bill of Costs. Any responding submissions (up to five pages) shall be provided within a further 15 days.”

[2] Plaintiffs Counsel submitted a three page submission on July 10, 2018, without a supporting Bill of Costs. The Moving Defendants Counsel submitted a five page response on July 13, 2018 supported by a Bill of Costs. Plaintiffs Counsel responded on July 17, 2018, (19 days after my Endorsement) attaching a Bill of Costs, which necessitated a two page response on July 20, 2018.

[3] On July 23, 2018, I received three pages of Plaintiffs’ Response to Defendant’s Added Comments Re: Plaintiffs’ Bill of Costs. In order to make my decision on the costs award for this Motion, I need not hear further from the Moving Defendants Counsel.

[4] Paragraph 15 of my Endorsement stated:

“Courts should strive to achieve fairness in the trial process in order to achieve a ‘level playing field’ at trial that will ensure a just result, and Economical should have the right to challenge the evidence of the Plaintiff’s experts in order to provide fairness in the litigation. The need for a second medical examination here can be gleaned from the compendium of expert medical reports filed.”

[5] However I ruled that the Moving Defendants were not entitled to their choice of assessor, and I ordered that Dr. Veluri conduct the further assessment. The Moving Defendants do not contest that this was an “in the alternative” position of Plaintiffs Counsel.

[6] However, this “in the alternative” position was enunciated first in the Plaintiffs factum and was never the position of the Plaintiffs before their factum was served on June 1, 2018. Their position set out in the Responding Affidavit of James Wallbridge, sworn May 17, 2018 was that a defence medical assessment was an abuse of process, unfair and in bad faith. This position was maintained until the Motion was argued and is reflected in paragraph 10 of my Endorsement. At no point did the Plaintiffs state they would have been content with a second assessment by Dr. Veluri instead of Dr. Gnam. Rather, the Plaintiffs core position was always that the Moving Defendants were not entitled to an assessment, and that they did not consent to having Mr. Kanani attend at one.

[7] The Motion was therefore clearly necessary in the circumstances.

[8] Ultimately, from a fair and reasonable point of view, I consider the success on this Motion to be equally divided. This case involves considerable complexity including Crossclaims and taking into account all of the circumstances here, including the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the costs I would award to these two parties would reasonably equate the other. Due to their divided success, I make no award of costs for this Motion. These two parties are to bear their own costs for this Motion.

Released: August 21, 2018 The Honourable Mr. Justice David J. Nadeau