Court File and Parties

COURT FILE NO.: 12-703 DATE: March 12, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Burke v Belanger

BETWEEN: Janet Burke, Plaintiff AND: Chantal Belanger, Defendant

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Self-Represented Plaintiff Dalton McGuinty Jr., for the Defendant

DATE HEARD: Written Submissions

COSTS ENDORSEMENT

James J

[1] This is a costs endorsement following an 8 day jury trial involving a claim for damages as a result of a motor vehicle accident in 2010.

[2] The plaintiff was self-represented.

[3] The liability of the defendant was never seriously in doubt. The real issues related to the plaintiff’s claims for general damages, lost income and future housekeeping expenses.

[4] For several years before and after the accident, the plaintiff received disability payments from the Ontario government and was accepted for federal CPP disability payments as well. She was not employed at the time of the accident and had not been employed for several months leading up to the accident.

[5] The plaintiff has significant mobility problems due to arthritis in her knees and recurring bouts of cellulitis.

[6] The defence evidence suggested that the accident had temporarily aggravated the plaintiff’s pre-existing ailments which resolved within a few months.

[7] The plaintiff did not present any medical or other expert evidence in support of her contentions.

[8] The jury awarded general damages of $10,000, nothing for past and future income loss and nothing for the costs of future housekeeping assistance.

[9] The defendant brought a threshold motion at the conclusion of the evidence and final argument for an order that the plaintiff had not met the requirement of proving that she had sustained serious and permanent injuries as a result of the accident as required by section 267.5 of the Insurance Act (Ontario). The motion was granted, thereby disentitling the plaintiff from recovering any amount for general damages.

[10] The defendant seeks partial indemnity costs of $99,779.81 composed of $50,256.07 for fees and $49,523.74 for disbursements.

[11] The plaintiff did not deliver any submissions in response to the defendant’s costs claim.

[12] The defendant made an offer to consent to dismissal of the plaintiff’s claim without costs in 2014. Later the defendant offered to admit liability if the plaintiff would agree to cap her damages at $1,000,000, which was the limit of the defendant’s insurance policy. The plaintiff did not accept this offer.

[13] In October 2018 the plaintiff made an offer to settle that called for a payment by the defendant of $3,000,000.

[14] The defendant is prima facie entitled to her costs on a partial indemnity basis because the plaintiff was not successful. The general rule is that the successful party is entitled to receive a portion of his or her legal costs from the unsuccessful party. The amount of fees claimed by the defendant for an 8 day trial is reasonable. I note that the defendant has based her claim for partial indemnity at 60% of the defendant’s full legal costs. A 60% recovery rate is frequently allowed.

[15] There are some issues with the defendant’s disbursements claim. The following disbursements were either disallowed or reduced:

a) Teraview and Cyberbahn searches—disallowed (no receipts; no explanation) b) Surveillance by two firms—reduced by $6,886.19 (no receipts; only 1 investigator testified) c) Crawford—disallowed (no receipts; purpose not explained) d) Carmen Tessier travel expenses—disallowed (no receipts; not explained) e) Travel and meal expenses—disallowed (no receipts; not permitted on partial indemnity recovery) f) Dr. Faris—reduced by $6,220.85 (no receipts; preparation often not allowed as part of witness fee, amount appears to be unreasonably large)

[16] Taking the foregoing matters into account and having considered the factors applicable to determining costs set out in the rules of court, costs are allowed to the defendant for fees in the amount of $50,256.07 (including HST) and for disbursements in the amount of $30,724.81 (including HST) for a total of $80,980.99, payable forthwith.

James, J. DATE: March 12, 2019