Court File and Parties

COURT FILE NO.: CV-13-00482226

MOTION HEARD: 20191002

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Christie and Inge Christie, Plaintiffs

AND:

TD Insurance Meloche Monnex, Meloche Monnex Financial Services Inc. and Security National Insurance Company, Defendants

BEFORE: Master B. McAfee

COUNSEL: Anne Juntunen, Counsel for the Moving Parties, the Plaintiffs

Jillian Beaulieu, Counsel for the Responding Parties, the Defendants

HEARD: October 2, 2019, In Writing

ENDORSEMENT RE: COSTS

[1] Further to my endorsement dated June 4, 2019, and my reasons for decision dated June 5, 2019 (2019 ONSC 3481) I have now received and considered the written costs submissions of the parties with respect to the plaintiffs’ motion returnable before me on June 4, 2019.

[2] The plaintiffs seek costs of the motion on a substantial indemnity basis in the all-inclusive amount of $12,605.30 and, in the alternative, on a partial indemnity basis in the all-inclusive amount of $9,592.72. The defendants submit that no costs should be awarded to any party and, in the alternative, submit that any costs awarded to the plaintiffs should be reduced given the divided success.

[3] I agree with the defendants that there should be no costs of the motion payable to any party.

[4] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43, provides that costs are in the discretion of the court. Rule 57.01(1) of the Rules of Civil Procedure sets out a non-exhaustive list of factors that the court may consider in exercising its discretion. When exercising its discretion, the court must consider what is fair and reasonable in the circumstances (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 24).

[5] This motion was booked and confirmed for one hour. No facta or case law were filed in advance of the motion. No cross-examinations took place. At the return of the motion the plaintiffs provided the court with two cases and the defendants provided the court with two cases.

[6] Prior to service of the plaintiffs’ motion record, the defendants agreed to the timetable deadlines that were ultimately ordered on consent. The parties made submissions with respect to two contested items of relief. There was divided success on the first contested item of relief. The defendants were successful on the second contested item of relief.

[7] As stated in my endorsement of June 4, 2019, the balance of the relief being three refusals and costs was adjourned. The motion with respect to the three refusals was subsequently withdrawn.

[8] As stated in my reasons for decision dated June 5, 2019, this is not a case where the defendants made little or no effort to comply with the timetable orders and answer undertakings. Prior to the within motion having been brought, the defendants answered 69 of 77 undertakings. I am not satisfied of conduct on the part of the defendants that warrants an award of substantial indemnity costs.

[9] Relief was consented to and relief was withdrawn. Success was divided success on the contested relief.

[10] For these reasons, the parties shall bear their own costs of the motion. There shall be no costs of the motion payable to any party.

[11] Order to go as follows:

1. There shall be no costs of the motion payable to any party.

Master B. McAfee

Date: October 2, 2019