COURT FILE NO.: CV-18-0061-00
DATE: 2019-08-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KAREN RINGIUS, in her capacity as Estate Trustee, IN THE ESTATE OF BRIAN DAVID RINGIUS
v.
CAPITAL INSURANCE AGENCIES LTD., KELLI GOTHARD McKINNON, and KELLI GOTHARD McKINNON, in her capacity as Estate Trustee, IN THE STATE OF JERRY N. GOTHARD and IN THE ESTATE OF BEVERLY GOTHARD
HEARD: Via Written Submissions
BEFORE: B. Warkentin R.S.J.
COUNSEL: T. Rhaintre, for the Plaintiff
J. Illingworth and K. Hagman, for the Defendants
Reasons on Costs
[1] Further to my endorsement on July 16, 2019, counsel for the defendants informed me that the defendants no longer wished to pursue costs against the solicitor personally. They asked me to assess the defendants’ costs based upon their submissions and Bill of Costs filed.
[2] Counsel for the defendants is seeking costs on a full indemnity basis inclusive of HST and disbursements of $84,327.60 after a successful summary judgment motion. The substantial indemnity claim for this proceeding is $69,778.65.
[3] Counsel for the defendants submitted that full indemnity costs in this proceeding are appropriate because the plaintiff’s statement of claim and allegations purporting to support the claim were an abuse of process and vexatious, without evidence to support a prima facie case.
[4] Summary Judgment was granted on April 24, 2019 on the basis that the statement of claim disclosed no genuine issue for trial. There was no finding that the claim was vexatious or an abuse of process.
[5] Counsel for the plaintiffs submitted that the quantum of costs sought by the defendants is excessive and argued the sum of $27,000.00 is the amount that should be awarded.
[6] Counsel for the Plaintiff also submitted that the amount claimed by counsel for the defendants is excessive and disproportionate to the issues before the court.
[7] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[8] Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.
[9] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (Ont CA) at para. 37).
[10] An award of substantial indemnity costs is ordered for the purpose of expressing the court’s disapproval of the parties’ conduct in the litigation. It should be ordered in only rare and exceptional cases. See Isaacs v MHG International Ltd., 1984 CanLII 1862 (ON CA), [1984] O.J. No. 3155, 45 O.R. (2d) 693 (Ont. C.A.). It follows then that absent a finding of an abuse of process or vexatious litigation that full indemnity costs would not be ordered.
[11] However, during the summary judgment motion I only asked counsel for the plaintiff to provide the court with the basis upon how their claim could succeed in light of the evidence provided by the defence. I was not satisfied with the evidence or argument by counsel for the plaintiff and as such did not require defendants’ counsel to make submissions on their motion.
[12] Based upon my findings in the summary judgment motion that the claim disclosed no genuine issue for trial and my findings regarding the lack of evidence to support the position of the plaintiff, I do find this is an appropriate circumstance in which the court should express its disapproval of a party’s conduct in the litigation by making an award of substantial indemnity costs.
[13] Notwithstanding my finding that substantial indemnity costs should be awarded, the reasonableness standard still applies to such an order, requiring that I review the Bill of Costs submitted before determining the quantum of the award. I agree with counsel for the plaintiff that not all the time included in the defendants’ Bill of Costs should be compensable. The actual issue before the court was not complex although the defendants were put to considerable time and expense in providing the evidence required to establish their position. I also accept that while counsel in their retainers with their clients charge for certain actions such as reviewing and responding to emails, the cost is disproportionate to the complexity of the issue and at times appear to be administrative in nature. I also find that some of the time included for the preparation of materials and for court appearances was higher than would be awarded in a costs award.
[14] Having considered the parties’ submissions and the defendants’ Bill of Costs, I find that a reasonable award of costs on a substantial indemnity scale is $40,000.00 inclusive of HST and disbursements. The plaintiff shall therefore pay the defendants $40,000.00 in costs.
_______________
Madam Justice B. R. Warkentin, R.S.J.
Released: August 9, 2019
COURT FILE NO.: CV-18-0061-00
DATE: 2019-08-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KAREN RINGIUS, in her capacity as Estate Trustee, IN THE ESTATE OF BRIAN DAVID RINGIUS
v.
CAPITAL INSURANCE AGENCIES LTD., KELLI GOTHARD McKINNON, and KELLI GOTHARD McKINNON, in her capacity as Estate Trustee, IN THE STATE OF JERRY N. GOTHARD and IN THE ESTATE OF BEVERLY GOTHARD
BEFORE: B. Warkentin R.S.J.
COUNSEL: T. Rhaintre, for the Plaintiff
J. Illingworth and K. Hagman, for the Defendants
REASONS ON COSTS
B. Warkentin R.S.J.
DATE: August 9, 2019