COURT FILE NO.: 16-69877 DATE: 20190307 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mark Pittuck and Tanya Bruce and Connor Pittuck by his litigation Guardian, Mark Pittuck and Dylan Pittuck by his Litigation Guardian, Mark Pittuck Plaintiffs – and – Garwood/Feller Inc., and Navistar Canada, Inc. and Miller Industries International, Inc., and Canadian Towing Equipment Inc., and Sharkey’s Towing and Road Service Inc., and Edward Lister and HVL Ltd., and NISCO Inc., and Tallman Truck Centre Limited Defendants

Brenda Hollingsworth and Richard Auger, for the Plaintiffs Shawn J. O’Connor, for the Defendants, Nisco Inc. and HVL Ltd. HEARD: in writing

DECISION ON COSTS

R. SMITH J.

OVERVIEW

[1] Nisco provided the financing by way of a lease to allow Mark Pittuck (“Pittuck”) to obtain possession of a five year old tow truck for use in his business. Approximately two years after obtaining possession of the tow truck Pittuck was badly injured while towing a vehicle on private property (not on a public highway). Part of the equipment installed on the tow truck (a “side puller”) failed while Pittuck was attempting to tow a vehicle which caused him to suffer serious injuries.

[2] The lease signed between the parties provided that Pittuck would indemnify and save Nisco harmless from any legal costs for any claims arising from the operation of the tow truck. This is in addition to Pittuck agreeing to assume sole responsibility for choosing, accepting the condition, inspecting and maintaining the tow truck.

[3] The defendant, “Nisco”, brought a motion for a summary judgment seeking the dismissal of the plaintiffs’ action against it. The motion was granted which terminated the main action and all related actions commenced against Nisco.

[4] Notwithstanding the terms of the lease Pittuck sued Nisco for over six million dollars in damages alleging that it had sold him a dangerous vehicle and failed to provide him with a maintenance manual for the side puller.

POSITIONS OF THE PARTIES

[5] Nisco seeks costs against all of the plaintiffs of $51,640.57 plus HST on a full indemnity basis or alternatively $44,649 plus HST for exceeding its offer to settle. In addition it seeks disbursements of $5,080.45 in both cases. The costs claimed by Nisco include the costs for the summary motion as well as all other costs in the three actions commenced by the plaintiffs and the family law claimants as well as in the two separate actions commenced by Ms. Tennant, who was Pittuck’s mother and the guarantor on the lease.

[6] Ms. Tennant submits that she should not be required to pay any costs for the summary motion, as she did not participate and agreed to be bound by the result. She also argues that she should only be required to pay a modest amount of costs as she was only a family law claimant and very little extra work was required to defend against her claim. She only incurred legal costs of $4,992.60 on a full indemnity basis in pursuing her claim and as such her expectation was in this range.

[7] Having reviewed her submissions and considering the fact that Ms. Tennant did not participate in the summary motion and agreed to be bound by the result, the motion was brought early in the proceedings, she is receiving ODSP and has limited means, and her reasonable expectations, I order Ms. Tennant pay costs of $4,000.00 to the defendant inclusive of disbursements and HST.

[8] The plaintiffs submit that substantial indemnity costs should not be awarded in this case because they should only be awarded in rare and exceptional circumstances where there has been reprehensible, scandalous or outrageous conduct which is not the case. ( Davies v. Clarington (Municipality), 2009 ONSC 722 at paras. 28-31). Nisco submits that this is not the basis for their claim for costs on a full or substantial indemnity, rather it is because they exceeded their offer to settle and Pittuck agreed to indemnify it in the lease for all costs incurred.

[9] In addition the plaintiffs submit that the amount claimed by the defendants is excessive and unreasonable, that they had a reasonable basis for making the claim against Nisco, that Nisco failed to simplify the motion as offered by the plaintiffs, that the plaintiffs and Ms. Tennant are impecunious as both receive ODSP, and finally that the amount claimed exceeds the reasonable expectations of the unsuccessful parties. The Plaintiffs suggest an amount in the range of $3,000 to $10,000 in costs would be appropriate and consistent with other awards of costs on summary judgment motions in the Ottawa region.

FACTORS

[10] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed, the time spent and the principle of proportionality, and the amount that the losing party would reasonably expect to pay.

SUCCESS

[11] Nisco was completely successful as its summary motion was granted and the main action was dismissed against it, as well as all the corollary actions.

COMPLEXITY AND IMPORTANCE

[12] The issue of whether Nisco owed the plaintiffs a duty of care in the circumstances was complex. Both parties provided lengthy factums and casebooks. The matters were very important to the plaintiffs and also to Nisco and to any financial institution that provides financing by way of a lease for the acquisition of motor vehicles.

SCALE OF COSTS AND OFFERS TO SETTLE

[13] Nisco seeks costs on a full indemnity basis because Pittuck agreed to indemnify and save harmless Nisco from all legal costs related to any claim arising from the use or operation of the vehicle in the lease agreement. The plaintiffs did not respond to this aspect of the defendant’s submissions. Notwithstanding Pittuck’s agreement to indemnify Nisco for all costs this would be limited by the reasonable expectations of an unsuccessful party.

[14] Alternatively, Nisco claims costs on a substantial indemnity basis after May 8, 2017, the date of its offer to settle to a dismissal without costs, and on a partial indemnity basis before this date. The plaintiffs submit that they did not act in a reprehensible, scandalous or outrageous manner throughout the proceedings. I agree with this submission but this is a separate issue from whether substantial indemnity costs should be awarded if the defendant exceeded an offer to settle or on a full indemnity basis as Pittuck agreed to indemnify Nisco for all costs incurred. Rule 49.10(2) of the Rules of Civil Procedure states that a defendant may only receive partial indemnity costs if it obtains a better result than its offer and so I would not award substantial indemnity costs on the basis of Nisco’s offer to settle.

REASONABLE EXPECTATIONS OF THE LOSING PARTY

[15] The motion for summary judgment was brought early in the proceedings and lasted for one day. The issues were complex as the accident involved unusual circumstances with a lease being signed to provide financing to acquire the vehicle. While Nisco had to respond to five separate claims its defence to all claims was essentially the same.

[16] The hourly rate claimed by counsel for the defendant is reasonable. The plaintiffs’ counsel have not provided an outline of their costs incurred in this proceeding. As a result, as stated in Risorto v. State Farm Mutual Automobile Insurance Co., (2003), an attack that another party’s costs are excessive, when they do not put their dockets before the court is “no more than an attack in the air”.

[17] I also agree with Nisco’s submission that there is no fixed upper limit on costs that can be awarded for a summary motion. Each case should be considered on its specific circumstances. In this case the costs claimed include the costs for the summary motion and for the actions.

[18] The impecuniosity of the plaintiffs is not generally a factor that is given much weight and the unsuccessful party should reasonably expect to be ordered to pay costs whether impecunious or not. ( Walsh v. 1124660 Ontario Ltd., 2008 ONCA 522 (Ont. C.A.) However in Baines v. Hehar 2014 ONSC 3007, 2014 CarswellOnt 6532 the Divisional Court held that the Walsh decision did not specifically preclude considering impecuniosity as a factor. In this case Mr. Pittuck was badly injured in the accident and is unable to work. He and Ms. Tenant are both receiving ODSP and Mr. Pittuck has young children.

[19] While there is no cap or upper limit on the costs that may be ordered for a summary judgment motion the reasonable expectations of the losing party in these circumstances would be in the range of $15,000.00.

Disposition

[20] When considering the reasonable expectations of the losing party in a case of this complexity and their impecuniosity and other factors discussed above, and notwithstanding that Pittuck agreed to indemnify Nisco for any costs incurred for any claims, I order the plaintiffs, other than Ms. Tennant, to pay Nisco costs of $15,000.00 for the summary motion and $5,000.00 for costs in the actions plus disbursements of $5,000.00 both inclusive of HST. Ms. Tennant is jointly and severally liable ordered to pay costs to Nisco of $4,000.00 inclusive of HST and disbursements.

Justice Robert J. Smith

Released: March 7, 2019

COURT FILE NO.: 16-69877 DATE: 20190307 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mark Pittuck and Tanya Bruce and Connor Pittuck by his Litigation Guardian, Mark Pittuck and Dylan Pittuck by his Litigation Guardian, Mark Pittuck and Sandy Tennant (Guarantor) Plaintiffs - And - Garwood/Feller Inc., and Navistar Canada, Inc. and Miller Industries International, Inc. and Canadian Towing Equipment Inc. and Sharkey’s Towing and Road Service Inc. and Edward Lister and HVL Ltd., and Nisco Inc. and Tallman Truck Centre Limited Defendants REASONS FOR JUDGMENT Justice Robert J. Smith Released: March 7, 2019