House v. Baird, 2019 ONSC 4458

Court File and Parties

COURT FILE NO.: C-1092-09 DATE: 2019-07-26 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TYLER HOUSE BY HIS LITIGATION GUARDIAN GAIL HOUSE, THE ESTATE OF TITUS HOUSE, GAIL HOUSE and TITUS HOUSE JR. - and –

DONALD BAIRD, ROBERT SCOTT MURRAY and THE CORPORATION OF THE TOWNSHIP OF WILMOT

Counsel: Allan Rouben & Richard Campbell, Counsel for Tyler House, Plaintiff Jeramie Gallichan & Daniel Veinot, Counsel for Donald Baird, Defendant (Plaintiff in Court File No. C-141-11) Greg Robson, Counsel for the Non-Party, Nordique Insurance Gary Flaxbard, Counsel for Dawn Samms & Darryl Samms (Plaintiffs in Court File No. C-570-10)

HEARD: In writing

The Honourable Justice Catrina D. Braid

COSTS ENDORSEMENT

I. OVERVIEW

1A tragic accident occurred on February 25, 2009, involving four young men who were close friends. Tyler House was driving Donald Baird’s vehicle when the vehicle went out of control and was struck by a vehicle driven by Murray. As a result of the accident, Adam Samms lost his life. Baird was seriously injured. House was catastrophically injured, with his most severe injury being a diffuse axonal closed head injury.

2The Baird vehicle was insured by State Farm Insurance, and House was insured by Nordique Insurance. Both policies had third-party liability limits of $1 million.

3Several lawsuits were brought and most settled, including an action brought by Baird. The action brought by House proceeded to trial, and House obtained judgment against Baird.

4After the trial, the parties failed to reach an agreement on the distribution of the insurance proceeds. House brought a motion seeking the following:

i. Advice and direction from the court regarding the interpretation and application of ss. 258 and 277 of the Insurance Act, R.S.O. 1990 c. I.8 in determining priorities and entitlement to insurance monies available to the parties. ii. A declaration, in accordance with the equitable doctrine of marshalling, that the House claim rank in priority to the Baird and Samms claims. iii. A declaration that the Baird settlement monies received are not exempt from attachment or execution and confirming House’s right to garnish those funds directly from the insurance companies.

5For the reasons set out in House v. Baird, 2019 ONSC 1712, I dismissed House’s request to apply the doctrine of marshalling. The court ordered that State Farm pay out the insurance funds on a pro rata basis, and that Nordique pay the remaining amounts to Baird and the Samms family (up to its policy limits). The court further ordered that House was entitled to garnish 20% of the Baird settlement.

6I have now received written costs submissions from Baird and House. The Samms family and Nordique have not filed costs submissions.

II. ANALYSIS

7The garnishment issue was the only one that affected Baird. House sought to garnish the entire amount of Baird’s settlement payment; Baird conceded that a portion could be garnished but asked that it be reduced. Baird was more successful than House, and is entitled to costs. The sole issue for this court is the determination of the quantum of costs payable by House to Baird.

8Baird argues that he is entitled to partial indemnity costs in the amount of $36,686.93, including the costs of Mr. Verbanac in the amount of $11,361.20. In the alternative, Baird seeks 80% of the partial indemnity costs in the amount of $29,349.54. Baird suggests the alternative amount because 80% of the settlement was held to be immune from garnishment. Both figures are inclusive of HST and disbursements.

9House submits that the costs should be restricted to the issue of garnishment, and that there should be no costs for Mr. Verbanac’s participation.

10In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered these factors.

11I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant. The two most important factors are the principle of indemnity, and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event he was unsuccessful.

12On the motion, the parties filed numerous affidavits (with supporting documents), factums, and books of authorities. The long motion was argued over two days, with additional written material filed in the interim. The motion raised complex and somewhat novel issues. Both House and Baird suffered serious injuries in the accident, so the potential consequences of the decision were significant.

13I find that no costs should be awarded for time expended by Mr. Verbanac. He was not counsel on the motion, but was an affiant. He did not make any submissions. Any work that he may have done outside of court was either as a witness or was duplication of the work of other counsel.

14I have reviewed the detailed Bills of Costs, and the written submissions of the parties. I find that a fair and reasonable award of costs is $20,000, inclusive of HST and disbursements.

III. CONCLUSION

15This court orders that House shall pay costs to Baird in the amount of $20,000, inclusive of taxes and disbursements. These costs are payable forthwith.

Braid, J.