COURT FILE NO.: CV-19-59043
DATE: 20191227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF GERALD RIGGS, by its ESTATE TRUSTEE, CLARA RIGGS
Applicant
– and –
INTACT INSURANCE COMPANY
Respondent
S. Train, for the Applicant
M. Lefave, for the Respondent
HEARD: November 22, 2019; Costs submissions due December 20, 2019
THE HONOURABLE JUSTICE ROBERT B. REID
REASONS FOR DECISION ON COSTS
[1] The applicant (the “Estate”) requested an order enforcing the purported settlement of an accident benefits claim made by Gerald Riggs against his insurer, the respondent (“Intact”). The matter came before me as a summary judgment motion brought by the respondent seeking to have the application dismissed for lack of jurisdiction.
[2] The undisputed facts disclosed that, after reaching an agreement to settle the accident benefits (“SABS”) claim, but before personally signing final documents, Mr. Riggs died. The settlement was not paid by Intact because of the lack of personal signature by Mr. Riggs on the settlement documents. It did not accept the signature of Mr. Riggs’ personal representative.
[3] By decision dated November 27, 2019 (ONSC 6846), I granted summary judgment in favour of the respondent, based on my conclusion that the court did not have jurisdiction since the enforceability of the settlement as between the Estate and Intact constituted a dispute in respect of entitlement to SABS. That being the case, s. 280 of the Insurance Act gives exclusive jurisdiction over the matter to the Licence Appeal Tribunal (the “LAT”).
[4] By way of obiter dicta, I also observed that, but for my conclusion that the court does not have jurisdiction to determine the issue, I would have found the settlement between Gerald Riggs and Intact to be binding and enforceable.
[5] I encouraged the parties to settle the issue of costs. They were not able to do so, and made written submissions according to the timetable set out in my decision.
[6] The respondent claims costs. It submits that an appropriate all-inclusive award of costs on a partial indemnity scale would be $7,990.20, and on a substantial indemnity scale the amount would be $13,157.
[7] The applicant submits that no award of costs is appropriate. All-inclusive costs incurred by the Estate on a partial indemnity basis were $8,195.35.
[8] My discretion to award costs arises from s. 131 of the Courts of Justice Act. The factors which guide the exercise of my discretion are found in rule 57.01 of the Rules of Civil Procedure.
[9] Success is a presumptive factor. The respondent was successful on the jurisdiction issue, which was determinative of the result. Therefore, the matter of enforceability of the settlement was deferred to the LAT. Whether the respondent will be successful in resisting payment at the LAT is of course unknown at this time.
[10] The matter was of reasonable complexity involving statutory interpretation, and a novel fact situation.
[11] The amount of the settlement – $350,000 – was a substantial sum, especially from the perspective of the Estate.
[12] Based on the comparative partial indemnity costs incurred by each party, there is no disparity which might affect what an unsuccessful party might have expected to pay. Likewise, the amounts claimed were appropriately proportional to the amount at stake.
[13] There is no factual basis to justify the quasi-punitive scale of substantial indemnity costs. The question is whether the respondent should receive an award of partial indemnity costs.
[14] The applicant was not wrong to seek enforcement of the settlement, but was wrong in its choice of forum. As I observed in my decision, a lack of success in the application does not mean that the Estate will be unsuccessful in enforcing the settlement. I conclude that on the specific facts of this case, there in effect was divided success. It is reasonable to assume that some work undertaken by both parties in the application will be re-used in support of their respective submissions to the Licence Appeal Tribunal. As I noted, the issue of jurisdiction in this fact situation was novel.
[15] For those reasons, there will be no order as to costs.
Reid J.
Released: December 27, 2019
COURT FILE NO.: CV-19-59043
DATE: 20191227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF GERALD RIGGS, by its ESTATE TRUSTEE, CLARA RIGGS
Applicant
– and –
INTACT INSURANCE COMPANY
Respondent
REASONS FOR DECISION ON COSTS
Reid J.
Released: December 27, 2019