Court File and Parties

Court File No.: 14-59881 Date: 20181120 Superior Court of Justice - Ontario

Re: Margaret Ozimkowski, Plaintiff And Luc Raymond, Defendant

Before: Justice R. Ryan Bell

Counsel: Shawn O’Connor, for the Plaintiff Michael White, for the Defendant

Heard: In writing

Costs Endorsement

[1] On September 28, 2018, I granted Margaret Ozimkowski summary judgment against Luc Raymond on the issue of liability. Ms. Ozimkowski seeks her costs of the motion and her costs of the action in respect of the liability issue.

[2] The fees claimed by Ms. Ozimkowski are $23,491.60 on a partial indemnity basis, and $34,600.65 on a substantial indemnity basis. The amount claimed for disbursements – $23,000.72 – is comprised primarily of the fees paid to Jenish Forensic Engineering. Jenish prepared four expert reports in this matter. Mr. Raymond does not take specific issue with the disbursements claimed. I find that the amount claimed for disbursements is reasonable.

[3] Mr. Raymond’s position regarding costs is twofold. First, he asserts that any costs awarded to Ms. Ozimkowski should be proportionate to the amount she recovers in her action. As damages will not be determined until trial or as a result of a negotiated settlement, Mr. Raymond takes the position that costs of the motion should be determined by the trial judge or form part of a settlement agreement between the parties.

[4] Second, Mr. Raymond relies on a settlement agreement recently reached in the third party action. As part of that settlement, Ms. Ozimkowski will be paid costs from The Corporation of the County of Lanark. In relation to the costs payable by Mr. Raymond to Ms. Ozimkowski, Mr. Raymond essentially seeks a “credit” for the County’s payment to Ms. Ozimkowski.

[5] I disagree with both positions advanced by Mr. Raymond.

[6] As the successful party, Ms. Ozimkowski is entitled to her costs, both of the motion and in respect of the liability portion of the action. There is no reason to defer the determination of costs to the trial judge. Rule 57.01(7) of the Rules of Civil Procedure provides that the court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs. Deferring costs in this case would be inconsistent with Rule 57.01(7).

[7] I also find that both parties would reasonably expect that the court would fix costs following the motion. There is a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case (Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.), at para. 15). This is not an exceptional case.

[8] In my view, the settlement of the third party action is irrelevant to the costs to be awarded to Ms. Ozimkowski in relation to her motion for partial summary judgment and her liability claim in the main action. Ms. Ozimkowski did not assert a claim against the County. The County was not a party to the summary judgment motion and it did not take a position on the summary judgment motion. The County did not serve Ms. Ozimkowski with any expert reports on liability.

[9] The County did defend the main action. In doing so, the County focused on damages. The costs to be paid by the County to Ms. Ozimkowski are attributable to the County’s defence of the main action. Those costs are a separate matter from Ms. Ozimkowski’s costs of the motion against Mr. Raymond and her costs associated with her liability claim against Mr. Raymond.

[10] On May 1, 2017, Ms. Ozimkowski offered to settle the liability issue on the basis that Mr. Raymond admit liability for the collision. Ms. Ozimkowski obtained summary judgment on the issue of liability. Like the offer to settle, the motion for partial summary judgment was originally served in May 2017. I am satisfied that Ms. Ozimkowski’s costs of the action (in relation to liability) should be awarded on a partial indemnity basis and that her costs associated with the motion should be awarded on a substantial indemnity basis.

[11] With respect to the remaining factors referred to in Rule 57.01(1), I find that the actual hourly rate charged by and the partial and substantial hourly rates claimed for Mr. O’Connor are within the range for counsel of his experience. The issue of Mr. Raymond’s liability for the collision is, manifestly, important to Ms. Ozimkowski’s claim.

[12] While this matter involved a winter rear end collision and was not complex, I find that it was made more complex as a result of the changes in Mr. Raymond’s evidence regarding his following distance. Jenish’s second and third reports responded to the changes in his evidence.

[13] The motion for summary judgment was originally scheduled to be heard in August 2017. A new date of February 2018 was set, on consent. It was not until the December 2017 case conference that counsel for Mr. Raymond advised that he might file two expert reports. That advice necessitated a new return date for the motion.

[14] I disagree with Mr. Raymond’s assertion that the late service of additional authorities by Ms. Ozimkowski unreasonably lengthened the proceedings.

[15] A costs outline is an important tool in assessing the amount that an unsuccessful party could reasonably expect to pay. The costs outline on behalf of Mr. Raymond discloses that partial indemnity fees of approximately $19,000.00 were incurred by Mr. Raymond responding to the motion for summary judgment. The substantial indemnity fees incurred were approximately $29,000.00. Both amounts are in excess of the amounts claimed by Ms. Ozimkowski in relation to the motion.

[16] Having regard to Rule 49, the factors in Rule 57.01 and the principles in Boucher, I have determined that it is fair and reasonable to fix the total costs payable by Mr. Raymond to Ms. Ozimkowski, for the both the motion and the liability portion of the action, in the amount of $50,000, inclusive of disbursements and HST. The costs are to be paid by Mr. Raymond within 30 days.

Justice R. Ryan Bell Released: November 20, 2018