Court File and Parties

COURT FILE NO.: CV-16-558765 DATE: 20190501

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

J.P. TOWING SERVICE & STORAGE LTD. Plaintiff/ Responding Party – and – INTACT INSURANCE Defendant/ Moving Party

Counsel: Howard C. Cohen and Jessica S. Parise, for the Plaintiff/Responding Party G.L.R. Ranking and C. Pilkington, for the Defendant/Moving Party

HEARD: February 11, 2019

L. A. PATTILLO J.:

Introduction

[1] On August 17, 2016, J.P. Towing Service & Storage Ltd. (“J.P. Towing”) commenced this action against the Defendant, Intact Insurance Company (“Intact”), claiming various relief including declarations, a prohibitive order, a consolidation order, and monetary and punitive damages (the “Action”). The Action arises from a dispute between the parties with respect to towing and storage fees for motor vehicles that J.P. Towing claimed against the owners of the vehicles who were all insured by Intact.

[2] There are two motions before the court concerning the Action. Intact moves for summary judgment dismissing the Action in its entirety on the ground that it raises no viable causes of action against it. In response, J.P. Towing has brought a cross-motion for various declarations and an order consolidating various actions similar to its claims in the Action.

[3] For the reasons that follow, I dismiss Intact’s motion. In my view, while most of J.P. Towing’s claims in the Action cannot succeed, its claim for a declaration that the daily storage rate for the vehicles as determined by Deputy Judge Ashby of the Toronto Small Claims Court (“TSCC”) in J.P. Towing Service & Storage Ltd. v. Christopher Sherwood (26 January 2016), Toronto SC-12-15217-00 (Sm. Cl. Ct.) (“Sherwood”) is res judicata is a valid claim.

[4] Further, I allow J.P. Towing’s cross-motion and grant it summary judgment in the Action providing for a declaration that Intact is bound by the daily storage rate for the vehicles as determined by Deputy Judge Ashby in Sherwood.

[5] Having regard to the facts and the law, I am satisfied there is no genuine issue in the Action requiring a trial. Deputy Judge Ashby’s decision of J.P. Towing’s daily storage rate is final and res judicata between the parties. The parties have already expended significant time and resources as well as court time and resources to resolve the issue. In the circumstances, I am satisfied that granting J.P. Towing summary judgment declaring that Intact is bound by the decision in Sherwood is the most expeditious and least expensive way of achieving a just result.

Background

[6] The facts giving rise to the Action are not in dispute.

[7] J.P. Towing carries on business in the Greater Toronto Area as a towing and storage company for vehicles.

[8] Intact is an insurer providing motor vehicle insurance across Canada.

[9] In the City of Toronto, the Toronto Police Service (“TPS”) is responsible, pursuant to the Highway Traffic Act (“HTA”) and the Police Services Act, R.S.O. 1990, c. P.15 to maintain the roadways in Toronto in a safe and clear condition. The TPS also have obligations under the Criminal Code, R.S.C., 1985, c. C-46 to impound and seize vehicles that have been involved in certain crimes.

[10] Section 134.1 (1) of the HTA provides as follows:

134.1 (1) Where a police officer considers it reasonably necessary,

(a) to ensure orderly movement of traffic; or

(b) to prevent injury or damage to persons or property,

he or she may remove and store or order the removal and storage of a vehicle, cargo or debris that are directly or indirectly impeding or blocking the normal and reasonable movement of traffic on a highway and shall notify the owner of the vehicle of the location to which the vehicle was removed.

(2) The costs and charges for the removal and storage of the vehicle, cargo or debris removed are a debt due by the owner, operator and driver of the vehicle, for which they are jointly and severally liable, and the debt may be recovered in any court of competent jurisdiction and are a lien upon the vehicle, which may be enforced in the manner provided by the Repair and Storage Liens Act.

[11] As a result of their obligations under the HTA, the TPS enters into contracts with towing and storage companies through a public tender, overseen by the TPS Board and City of Toronto staff, to ensure that vehicles that are abandoned or are involved in a collision and/or crime may be towed and stored. The contract and rates are ultimately approved by the TPS Board.

[12] J.P. Towing has been a service provider to the TPS since 1992. Since 2012, J.P. Towing’s approved rate with TPS has been set at $160.00 for towing and $70.00 a day for storage. Recently the towing rate was increased to $180.00.

[13] In 2012, Intact took exception to the $70.00 daily storage rate that J.P. Towing was charging its insureds for the storage of their vehicles it had towed at the request of TPS. In order to maintain its objection and still obtain possession of its insured’s vehicle to resolve claims, pursuant to s. 134.1(1) of the HTA, Intact utilized the procedure set out in the Repair and Storage Liens Act, R.S.O. 1990, c. 25 (the “Act”).

[14] The Act provides that a storer has a lien against what the storer has stored for the amount of the storage and, where no amount is agreed, “the fair value of the storage” and may retain possession of the article until paid (s. 4(1)).

[15] In the event of a dispute concerning the storage, the Act provides a procedure for resolution of the amount of a storer’s lien while at the same time releasing the item stored to its owner. Specifically s. 24(1) provides:

24(1) Where a claimant claims a lien against an article under Part I (Possessory Liens) and refuses to surrender possession of the article to its owner or any other person entitled to it and where one of the circumstances described in subsection (1.2) exists, the owner or other person lawfully entitled to the article may apply to the court in accordance with the procedure set out in this section to have the dispute resolved and the article returned.

[16] Section 24 of the Act further provides that the owner or other person entitled to the article (the applicant) shall pay into court, or deposit security with the court in the amount of the full amount claimed by the respondent lien claimant (s. 24(4)). Where money is paid into court, the clerk or register shall issue an initial certificate under seal (s. 24(5)) which the applicant shall give to the respondent who, within three days shall release the article described therein or file a notice of objection with the court (s. 24(6)). In the event of a notice of objection, the applicant may pay into court any additional amount claimed and obtain a final certificate (s. 24(7)) and upon receipt, the respondent shall immediately release the article (s. 24(8)). The money paid into court is returned to the applicant if the respondent does not commence an action to recover the amount claimed within 90 days after the article is returned.

[17] In order to obtain possession of its insured’s vehicles, Intact, as a person lawfully entitled under s. 24 of the Act, commenced ex parte applications on behalf of each insured in the TSCC, paid the amount of J.P. Towing’s disputed storage charge into court and obtained a certificate entitling it to possession of the vehicle from J.P. Towing. The record indicates that from late 2012 to July 2018, Intact has issued a total of 108 applications in the TSCC pursuant to s. 24 of the Act: 16 by the end of 2013; a further 20 in 2014; a further 16 in 2015; 28 in 2016; 17 in 2017; and 11 to July 2018. In addition, other insurers have also commenced similar applications against J.P. Towing.

[18] In a mandatory settlement conference in September 2013, the TSCC suggested that the parties explore ways to reduce the number of cases accumulating in the TSCC. The suggestion was made that perhaps the parties could proceed on a test case that would be binding on all other decisions.

[19] In the late fall of 2013, the parties reached an agreement as set forth in an email from Intact’s counsel to J.P. Towing’s counsel dated November 5, 2013 as follows:

Parties consent to select one trial, on consent, the remaining of which will be stayed pending completion of same. Once the trials have been selected, the parties can write to the court on consent (I can prepare the letter and cc your office) requesting the remaining matters be stayed. Upon completion of the selected trials, the parties can either attempt settlement or determine the appropriate course of action for the remaining cases.

The agreement should not extend beyond the above, so as to preserve each party’s right to appeal the decision(s) if so desired. The decision will be persuasive, not binding, on the remaining cases so as to preserve the right to appeal and preserve the parties right to revive the remaining cases, if so desired.

[20] Subsequently, J.P. Towing supplied a list of suggested test cases and Intact selected the case of Sherwood.

[21] Sherwood was tried over nine days between September 2014 and January 2016 before Deputy Judge Ashby of the TSCC. The main issue before the court was a determination of the “fair value” for J.P. Towing’s storage of Mr. Sherwood’s vehicle as provided in s. 4(1) of the Act. Both sides called fact witnesses and Intact called an expert to opine on “fair value”. In a written decision released January 25, 2016, Deputy Judge Ashby concluded that the “fair value” for J.P. Towing’s storage fee was $70.00 a day. Intact did not appeal the decision.

[22] Subsequent to Sherwood, Intact has refused to accept J.P. Towing’s daily storage fee as found by Deputy Judge Ashby and, as noted above, has continued to file applications in the TSCC pursuant to s. 24 of the Act.

[23] As a result of Intact’s continued refusal to accept J.P. Towing’s daily storage fee resulting in continued applications by Intact under s. 24 of the Act, J.P. Towing commenced the Action. The prayer for relief in paragraph 1 of the Statement of Claim reads:

1. The Plaintiff seeks:

a) A declaration that the issue of the daily rate of storage as between J.P. Towing Service & Storage Ltd. and Intact Insurance has been fully adjudicated and is res judicata as a result of the final decision of Deputy Judge Ashby of the Toronto Small Claims Court dated January 26, 2016, which has not been appealed or challenged.

b) A declaration that the defendant Intact Insurance is a vexatious litigant, pursuant to s. 140 of the Courts of Justice Act;

c) An order prohibiting the Defendant Intact Insurance from commencing any further litigation on account of towing and storage, against the Plaintiff, without leave of a Judge of the Superior Court of Justice;

d) An order consolidating all RSLA applications between the Plaintiff and the Defendant Intact Insurance into one action, with one Statement of Claim and one Statement of Defence, pursuant to 107 and 138 of the Courts of Justice Act;

e) $500,000.00 on account of storage and towing services provided by the Plaintiff to the Defendant’s insureds;

f) $1,000,000.00 in punitive damages to act as a deterrent to this insurer and other insurers;

g) costs of this action on a full indemnity scale;

h) prejudgment interest pursuant to the Courts of Justice Act; and

i) such further and other relief as this Court deems just.

Position of the Parties

[24] As noted, Intact’s motion is for summary judgment dismissing the Action in its entirety on the ground that the claims in the Action do not raise a genuine issue requiring a trial.

[25] In response, J.P. Towing has brought a motion for an Order consolidating the applications and actions under the Act and for declarations that an agreement exists between Intact and J.P. Towing on a rate of storage of $70.00 per day pursuant to an agreement entered into between the parties and that the parties have settled the issue of the daily storage rate, as per Sherwood.

Analysis

[26] In order to grant summary judgment, there must be no genuine issue in the case requiring a trial: Rule 20.04 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 43.

[27] No genuine issue requiring a trial arises in circumstances where the process allows the judge to make the necessary findings of fact and apply the law to those facts and is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak at para. 49.

[28] As noted, the facts giving rise to the Action are not in dispute. At its core, J.P. Towing’s Action seeks to require Intact to abide by the storage charge of $70.00 a day as found in Sherwood and to effectively deal with the multiple applications commenced by Intact in the TSCC.

[29] In my view, J.P. Towing’s claims for a declaration that Intact is a vexatious litigant, prohibiting Intact from commencing any further litigation in respect of towing and storage without leave of the court, consolidation of all applications brought pursuant to s. 24 of the Act, and for compensatory as well as punitive damages cannot succeed. They do not, on the facts, raise a genuine issue requiring a trial and accordingly should be dismissed for the following reasons.

i. Vexatious Litigant

[30] Section 140 of the Courts of Justice Act, R.S.O. 1990. c. C.43, as amended (“COJA”), grants the Superior Court authority to declare a litigant vexatious where that person has “persistently and without reasonable grounds, (a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner”.

[31] The record in this case does not come close in my view to establishing that Intact’s use of the Act’s procedures in the TSCC to obtain possession of its insureds’ vehicles is vexatious or that any one application has been conducted by Intact in a vexatious manner.

[32] J.P. Towing relies on the fact that the parties agreed on the storage fee and Intact’s continued institution of applications under the Act after Sherwood as amounting to vexatious conduct. But there is no evidence to establish that those applications all relate to the daily storage fee. Other issues relating to the towing and storage apart from the daily storage fee may very well be in dispute. The onus is on J.P. Towing to provide such evidence and it has not.

ii. Requirement that Intact obtain Leave before Commencing any Further Proceedings under the Act

[33] In the absence of a valid claim for a vexatious litigant, there is no basis upon which J.P. Towing can succeed in obtaining an order requiring Intact to obtain leave before commencing further litigation concerning towing and storage charges. Such an order is made in conjunction with a vexatious litigant order. As I have found, the latter order is not available on the facts. Accordingly, the requirement of leave is likewise not available. Further, such an order would prevent Intact from utilizing the Act for issues other than the daily storage rate, such as length of storage or towing. Finally, requiring Intact to obtain leave for each application it wishes to commence pursuant to the Act needlessly adds both time and expense to a procedure which is clearly designed to be summary and cost efficient.

iii. Consolidation

[34] With respect to J.P. Towing’s claim for an order consolidating all of the applications between it and Intact under the Act into one action, the procedure set out in the Act permits payment into court of the disputed amount to obtain a certificate for release of the vehicle. The application ends when the certificate is issued. Thereafter, it falls to the person with the lien (i.e. J.P. Towing) to bring an action in the TSCC to obtain recovery of the fee. The record establishes, despite the many applications commenced for certificates, there are only seven proceedings in the TSCC commenced by J.P. Towing which can be consolidated. There is no evidence whether the issues in those actions are sufficiently similar such that consolidation would be appropriate. In any event, the jurisdiction to consolidate actions in the Small Claims Court (“SCC”) lies with a judge of the SCC and not with this court (R. 13.05(2) (a)(ii) of the Rules of the Small Claims Court, O. Reg. 258/98, under the COJA).

iv. Compensatory and Punitive Damages

[35] I am also satisfied that the claims for both $500,000.00 on account of storage and towing services and for $1 million in punitive damages also cannot succeed on the facts before the court and the law. There is no contract for storage and towing services between J.P. Towing and Intact or any debt owed by Intact to J.P. Towing. The charges for towing and storage are owed by the owner of the vehicle (HTA, s. 134.1 (2)) not Intact. Intact’s obligations are to its insureds, the vehicle owners, and in commencing applications under the Act for return of the vehicles, it is acting not as principle but as an agent of the owner. In addition, a separate action for the towing and storage charges is not available given that Intact has utilized the Act, which provides the procedure for recovering charges for towing and storage.

[36] As there is no proper claim for compensatory damages, it is axiomatic that there is no claim for punitive damages. In any event, despite its obligation in a summary judgment motion to put all of its evidence forward, J.P. Towing has provided no evidence that demonstrates that the conduct of Intact or any of its insured was in any way oppressive, high-handed or malicious such that an award of punitive damages was possible.

v. Res Judicata

[37] Intact submits that Sherwood cannot give rise to res judicata or issue estoppel because the issue of what daily storage rate is owed by a vehicle owner to J.P. Towing is not an issue between Intact and J.P. Towing. Further, Intact submits that the preconditions for issue estoppel have not been met in this case.

[38] Res judicata is a form of estoppel and encompasses both cause of action estoppel and issue estoppel. As correctly noted by Intact, it is issue estoppel which is at issue here.

[39] Issue estoppel precludes the relitigation of issues decided between parties in previous litigation. The Supreme Court set out the following three part test for issue estoppel in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 (“Angle”) at p. 254:

1. The same question has been decided;

2. The judicial decision that is said to create the estoppel is final; and

3. The parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[40] The Angle test was confirmed by the Court in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (“Danyluk”), which dealt with the question of whether issue estoppel applied to decisions of administrative tribunals. Binnie J., on behalf of the Court, noted that the application of issue estoppel was a two-step process. At para. 33 of the decision, he stated:

The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56.

[41] Intact submits J.P. Towing’s claim for a declaration that the issue of the daily storage rate is res judicata fails to meet two parts of the Angle test. First, the issue decided in Sherwood is not the same as the issue in the Action. Sherwood was a determination of the fair storage value for Mr. Sherwood’s vehicle only whereas the declaration claimed in the Action seeks to settle the fair value for storage under the Act for all Intact’s insureds’ vehicles. Second, the Action does not, nor do any of the proposed actions in the TSCC, involve the same parties or their privies.

[42] Sherwood dealt with two issues: (a) what was the “fair value” as provided in s. 4(1)(b) of the Act for the daily storage of Mr. Sherwood’s vehicle and (b) how many days was the vehicle stored. The former issue was decided by Deputy Judge Ashby to be $70.00 a day. Therefore, to the extent that the issue of what is the “fair value” for the daily storage rate arises between J.P. Towing and Mr. Sherwood or his privies in the future that issue has been decided. Its $70.00 a day. That finding gives rise to the question of whether Intact, who had carriage of Sherwood and defended it on Mr. Sherwood’s behalf, was a privy of Mr. Sherwood.

[43] Danyluk, at para. 60, addresses the concept of “privity” as follows:

The concept of “privity” of course is somewhat elastic. The learned editors of J. Sopinka, S. N. Lederman and A. W. Bryant in The Law of Evidence in Canada (2nd ed. 1999), at p. 1088 say, somewhat pessimistically, that “[i]t is impossible to be categorical about the degree of interest which will create privity” and that determinations must be made on a case-by-case basis. In this case, the parties are identical and the outer limits of “mutuality” and of the “same parties” requirement need not be further addressed.

[44] In Machin v. Tomlinson (2000), 51 O.R. (3d) 566, 194 D.L.R. (4th) 326 (C.A.) at para. 14, the court held that “the right to participate and the degree of participation by the person alleged to be a party or a privy in the prior proceeding is a consideration in determining whether in fact party or privy status exists.”

[45] Privity also requires mutuality. In McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2006] O.J. No. 5234 (Div. Ct.) at para. 18, the court held:

In considering whether there is mutuality, courts and commentators have found it helpful to consider whether the party seeking the benefit of the earlier decision would have considered itself bound, had the decision been decided against its interests (J. Sopinka, S.L. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Buttersworth, 1999) at p. 1090; Britannia Airways Ltd. v. Royal Bank, [2005] O.J. No. 2 (S.C.J.) at para. 53).

[46] Based on the above, I find that Intact was a privy to Mr. Sherwood in Sherwood. It acted as Mr. Sherwood’s agent in Sherwood throughout. It actively participated in the case, not only on behalf of Mr. Sherwood but also on its own behalf as it was obligated under its policy of insurance with Mr. Sherwood to pay the towing and storage charges for his vehicle. Intact had carriage of Sherwood on Mr. Sherwood’s behalf and participated as a party in it from beginning to end. I am also satisfied that the requirement of mutuality was present here. J.P. Towing, by its actions, clearly understood that it would be bound by the decision with respect to the daily storage rate, at a minimum with respect to Intact’s insureds.

[47] I therefore find that J.P. Towing has established the three preconditions for issue estoppel as between itself and Intact concerning the issue of the “fair value” for J.P. Towing’s daily storage rate pursuant to s. 4 of the Act. Intact and J.P. Towing are bound by Sherwood to a daily storage rate under the Act of $70.00 a day.

[48] The second step in determining whether issue estoppel should be applied is whether, on the facts of this case, should the court exercise its discretion and apply issue estoppel. In my view, the answer to that question is yes.

[49] Intact submits that while it may be a privy of Mr. Sherwood by acting as his agent, Sherwood cannot bind other vehicle owners on the basis that Intact is also their agent. I agree to the extent that the other vehicle owners bring their own application under the Act without Intact. Where, however, Intact is acting on their behalf and has carriage of the proceedings, Intact is bound by Sherwood that the “fair value” for J.P. Towing’s daily storage rate is $70.00.

[50] As Binnie J. stated in Danyluk at para. 33, the rules governing issue estoppel should not be mechanically applied. Having regard to the purpose of issue estoppel, which is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case, I am satisfied that where Intact acts on behalf of its insureds in accessing the procedure under the Act to obtain possession of its insured’s vehicle from J.P. Towing, it is bound by Sherwood in respect of the $70.00 a day storage rate. That issue has been litigated at length between J.P. Towing and Intact in Sherwood and finally decided. There is no injustice to Intact in holding it to that rate in respect of its other insureds where Intact acts on their behalf in accessing the procedure under the Act. Nor do I consider that holding Intact to the daily storage rate of $70.00 is in any way prejudicial to Intact’s insureds given that it is Intact that is obligated to pay the storage charge on their behalf.

[51] Intact submits that it never agreed that Sherwood would be binding on it. The agreement between J.P. Towing and Intact as reflected in the email correspondence between counsel was that “upon completion of the selected trials [i.e. Sherwood], the parties can either attempt settlement or determine the appropriate course of action for the remaining cases”. Further, “the agreement should not extend beyond the above to preserve each party’s right to appeal the decision(s) if so desired. The decision will be persuasive, not binding, on the remaining cases so as to preserve the right to appeal and preserve the parties right to revive the remaining cases, if so desired.”

[52] In my view, the agreement between the parties preserved each party’s right to appeal any decision (which was not exercised in Sherwood) and following the decision, the parties could settle the remaining cases or determine the appropriate course of action. To the extent that the remaining cases concerned issues regarding the towing fee or the number of days of storage, those issues remained alive and were not resolved by Sherwood. They would have to be resolved or litigated. However, as between J.P. Towing and Intact, Sherwood settled the issue of the daily storage rate at $70.00 a day.

[53] It is clear from Sherwood that Deputy Judge Ashby was of the understanding that the issue before him was a test case between J.P. Towing and Intact who defended the action on behalf of Mr. Sherwood. Deputy Judge Ashley stated, at para. 2, in part: “Apparently this case may be used as some form of precedent as I have heard several days of testimony and detailed written submissions over a very small sum of money.”

[54] Although there is some evidence that Intact and/or its counsel were acting for other insurance companies in addition to Intact in connection with the test case, I am not prepared to hold (and J.P. Towing does not claim) that issue estoppel applies to any other insurance company other than Intact.

[55] For the above reasons, therefore, I am satisfied that J.P. Towing’s claim for a declaration that the issue of the “fair value” under the Act for its daily storage rate is $70.00 as determined in Sherwood is res judicata against Intact is a valid claim in law. Accordingly, Intact’s summary judgment motion in respect of that claim is dismissed.

[56] I turn next to J.P. Towing’s motion which seeks:

a) an Order consolidating the Repair and Storage Lien Applications and actions set out in the schedule attached to the Notice of Motion;

b) a declaration that an agreement exists between J.P. Towing and Intact Insurance on a rate of storage of $70 per day, pursuant to an agreement entered into between the parties;

c) a declaration that the parties have settled the issue of the daily storage rate, as per the Sherwood decision.

[57] The relief sought by J.P. Towing essentially mirrors the relief sought by it in paragraphs 1(a) and (d) of the Statement of Claim in the Action: a declaration that the issue of the daily storage rate is res judicata as a result of Sherwood and consolidation of all of the applications pursuant to the Act in the TSCC.

[58] For the reasons already stated, I am not prepared to grant consolidation. Further, as I have found that res judicata applies to J.P. Towing and Intact in respect of the issue of J.P. Towing’s daily storage charge as determined in Sherwood, I would allow the relief requested in paragraph 3 of the Notice of Motion. Further, I have already discussed what the agreement between the parties was concerning Sherwood. In my view, it did not extend to a storage rate of $70.00 a day.

[59] The usual consequence of my dismissal of Intact’s summary judgment motion in respect of the claim in paragraph 1(a) of the Statement of Claim would be to require that the issue of whether the daily storage rate as determined in Sherwood is res judicata as between J.P. Towing and Intact proceed to trial. For the reasons herein, however, I am satisfied based on the facts and the law, that issue does not require a trial.

[60] Further, as a result of my decision in J.P. Towing’s motion, I have concluded that the most expeditious and least expensive way in which to deal with the Action going forward is to grant J.P. Towing summary judgment in accordance with paragraph 1(a) of its Statement of Claim.

[61] As noted at the outset, the parties have spent far too much time, money, and court resources concerning the issue of what the fair value of J.P. Towing’s daily storage rate is. That issue has been finally decided between the parties. Further litigation concerning it is not only unnecessary, it is unwarranted.

Conclusion

[62] Accordingly, Intact’s motion for summary judgment is dismissed. J.P. Towing’s motion is allowed and it is granted summary judgment in the Action in accordance with paragraph 1(a) of its Statement of Claim, proving for a declaration that the issue of the daily rate of storage as between J.P. Towing and Intact has been fully adjudicated and is res judicata as a result of the final decision of Deputy Judge Ashby in Sherwood.

[63] J.P. Towing is successful on both motions and is entitled to its costs on a partial indemnity basis.

[64] At the conclusion of the argument, both parties submitted cost outlines. J.P. Towing claims partial indemnity costs of $36,952.63 on account of the entire Action, made up of fees of $29,905.00, HST of $3,874.65 and disbursements of $2,322.98. The total of Intact’s partial indemnity costs, again for the Action, is $121,131.36.

[65] Having regard to the issues raised, the work done, and the hourly rates claimed, I am satisfied that J.P. Towing’s partial indemnity costs are fair and reasonable. Further, in light of Intact’s claimed costs, they are also well within what Intact would expect to pay. J.P. Towing’s partial indemnity costs are therefore fixed at a total of $36,952.63.

L. A. Pattillo J.

Released: May 1, 2019

Reasons for Judgment

COURT FILE NO.: CV-16-558765 DATE: 20190501

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

J.P. TOWING SERVICE & STORAGE LTD. Plaintiff/ Responding Party – and – INTACT INSURANCE Defendant/ Moving Party

REASONS FOR JUDGMENT

PATTILLO J.

Released: May 1, 2019