Court File and Parties

COURT FILE NO.: 58450 DATE: 2020/01/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Johnson by his Litigation Guardian, Julie Johnson, Julie Johnson, and Art Johnson, Plaintiff

– and –

Cody Crouse, James Chadwick Rankin, carrying on business as Rankin’s Garage & Sales, ING Insurance Company of Canada, and Darlene Crouse, Defendants

Counsel: Maia Bent, for the Plaintiffs Jennifer Chapman, for the Minister of Government and Consumer Services of and in the name of Cody Crouse

HEARD: October 9, 2019

REASONS FOR DECISION

GEORGE J.

[1] At the age of 15 the Plaintiff Joshua Johnson (“Joshua”) was involved in a motor vehicle accident that left him with severe and permanent injuries. He suffered a traumatic brain injury and as a result experiences speech deficits, balance issues, and has difficulties with mood regulation.

[2] Joshua is now 28 years old.

[3] On June 8, 2010 Morissette J. found Joshua to be incapable of managing his own property and personal care. Since then his mother, Julie Johnson, has acted as his Guardian of Property and Person. She also acts as Joshua’s litigation guardian in this proceeding.

[4] Before addressing the issue at hand, a brief summary of the facts that gave rise to this action. On July 9, 2006 Joshua was a passenger in a vehicle operated by the Defendant Cody Crouse (“Crouse”). Crouse was travelling southbound on Bruce Rd. in the Township of Brant, Bruce County. At or near the point Bruce Rd. intersects with Concession 6 West, Crouse lost control and rolled the vehicle.

[5] As indicated Joshua suffered a traumatic brain injury. As a result, his demeanour and behaviour changed dramatically. He was unable to control his temper and would act out aggressively. He had difficulty regulating his emotions and lacked all insight into the consequences of his conduct. He was referred to a neurobehavioral rehabilitation clinic.

[6] Joshua’s condition has not improved over the years. In fact, it has worsened. He has been convicted of several criminal offences, shows signs of alcohol and drug dependency, and at one point was admitted to the hospital on a Form 1 which authorized his detention in order to complete a psychiatric assessment. He was diagnosed with substance-abuse psychosis combined with the effects of his traumatic brain injury.

[7] Joshua continues to deteriorate, both cognitively and emotionally, and still has violent outbursts. He has been jailed on several occasions and is now serving a six-year penitentiary sentence after being found guilty in 2018 of attempted murder, armed robbery and aggravated assault.

[8] The Statement of Claim in this matter was issued on June 5, 2008. The Defendant ING Insurance Company served its Statement of Defence and Crossclaim on July 7, 2008. The Defendant Rankin’s Garage served its Statement of Claim and Crossclaim on July 29, 2008.

[9] Pursuant to the Motor Vehicle Accident Claims Act (“MVACA”) a Notice of Default in respect of Crouse was forwarded to the Motor Vehicle Accident Claims Fund (“Fund”). The Fund, on behalf of Crouse, filed a Statement of Defence and Crossclaim on March 30, 2010. The Fund then advised Joshua’s counsel that they were required to bring an action against Crouse’s mother, Darlene Crouse. The Statement of Claim was subsequently amended to include Darlene Crouse as a Defendant, who then served her Defence and Crossclaim on February 8, 2011.

[10] I am told that it became apparent early on that Joshua’s damages would exceed the maximum amounts payable under the MVACA, which is currently $200,000.00, and Rankin’s insurance policy which had a limit of $1,000,000.00. This resulted in a bifurcated trial. It was agreed that once liability was determined the limits would be payable on one of the available policies, depending of course on the result. At that point the action as against ING was discontinued.

[11] The trial on liability proceeded before a jury in September of 2014. The trial judgment - made in accordance with the jury’s verdict - ordered that liability be apportioned as follows:

• Crouse – 23%
• Rankin’s Garage – 37%
• Darlene Crouse – 30%
• Joshua (contributory negligence) – 10%

[12] Rankin’s unsuccessfully appealed to the Ontario Court of Appeal. It then successfully appealed to the Supreme Court of Canada.

[13] A little more should be said about why Rankin’s was in the fold in the first place. It carries on the business of automobile sales and service. Crouse and Joshua had stolen from Rankin’s the vehicle that was ultimately involved in the motor vehicle accident. Joshua’s theory of liability was that Rankin’s was negligent in that it failed to take reasonable steps to ensure that vehicles left on its premises were secured when it knew or ought to have known that vehicles it had possession of were routinely being taken by local youths for “joy rides”. This had apparently happened before. It was specifically alleged that Rankin’s had engaged in the practice of leaving keys in some of its vehicles overnight even after learning of the problem.

[14] The Supreme Court ultimately found that Rankin’s was one step removed from tort liability. The majority held that it owed no duty of care, concluding that there was nothing in the factual matrix of this case that connected the theft to the unsafe driving.

[15] The Defendants Crouse and Darlene Crouse are impecunious and have no access to an insurance policy that would satisfy Joshua’s damages. As such, it has been agreed that Joshua will receive the maximum amount of coverage available under the MVACA which, as indicated, is $200,000.00. While not nearly enough to compensate Joshua for his injuries, this is, in the circumstances, in Joshua’s best interests. The proposed settlement is approved.

[16] That leaves this question: Who is responsible for Joshua’s legal fees and disbursements throughout this action? This is further complicated by the fact that, given Rankin’s success at the Supreme Court, Joshua has been ordered to pay its costs in the agreed upon amount of $135,000.00 inclusive of HST and disbursements. I am told that the Plaintiffs could only satisfy this from the damage award that will flow from the Fund which, when you consider their own costs and fees, will not only leave Joshua with nothing but will saddle the Plaintiffs with a costs obligation they will likely never be able to satisfy.

[17] I was advised that following service of this motion – that seeks judicial approval of the settlement - counsel for the Fund advised that the costs issue should be placed before an Assessment Officer. That led to the motion being adjourned sine die. I was further advised that once the Plaintiffs filed for that assessment the Fund then took the view that an Assessment Officer lacked jurisdiction and that costs must be addressed in the judgment or a court order. Counsel for the Fund, I believe, denies that, but not much turns on this.

[18] The Fund has agreed it is liable for Joshua’s costs at the trial stage, but denies all responsibility for the Plaintiff’s costs associated with any of the appeals, and opposes a Sanderson or Bullock order that would have it pay Rankin’s costs.

[19] There are two issues:

1. Is Crouse liable for Joshua’s costs, payable by the Fund, throughout this entire action (including appeals) or is his liability limited to costs incurred at the trial level?
2. Is Crouse liable for Rankin’s costs, payable by the Fund, by way of a Sanderson or Bullock order?

[20] On the first issue, the Plaintiffs take the view that the MVACA compelled them to respond to the appeals. Section 7(1) and (3) provides that:

7(1). Subject to section 8, where a person recovers in any court in Ontario a judgment for damages on account of injury to or the death of any person or loss of or damaged property occasioned in Ontario by a motor vehicle owned or operated by the judgment debtor within Ontario, upon the determination of all proceedings, including appeals, the person may apply, in the form prescribed by the Director, for and the Minister shall pay the amount of the judgment or of the unsatisfied portion thereof out of the Fund, provided that, in respect of a judgment for loss of or damage to property, only that amount by which the judgment exceeds $100 is payable out of the Fund.

(3) The Minister shall not pay out of the Fund any amount in respect of the judgment unless the judgment was given in an action brought against all persons against whom the applicant might reasonably be considered as having a cause of action in respect of the damages in question and prosecuted against every such person to judgment or dismissal.

[21] The Plaintiffs submit that Rankin’s is a person (entity) “against whom the applicant might reasonably be considered as having a cause of action”. They note that, as against Rankin, they were successful before a Superior Court jury, a decision upheld by the Court of Appeal, and that two Supreme Court justices dissented by agreeing that Rankin’s was liable in negligence. The more important point they attempt to make is that the MVACA required them to prosecute Rankin’s and that s. 7(1), in requiring that pursuit until judgment or dismissal, must include all appeals. In other words, this action was not dismissed as against Rankin’s until the Supreme Court released its judgment. Meaning, the Plaintiffs would not have had access to the Fund unless they remained involved to that point.

[22] The Plaintiffs also point out that the Fund supported their defence of the jury’s verdict throughout the appeal process and contend that it stood to gain considerably by pursuing Rankin’s. It represents the difference between the Fund paying out the maximum amount allowable under the law, and paying nothing at all.

[23] The Plaintiffs argue that the court not only has inherent authority to award costs but that the Courts of Justice Act (CJA) expressly permits it. Section 131 provides that:

131(1). 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 the costs shall be paid.

[24] They argue that this confers a broad discretion and that the term “proceeding” must include any step in the action, including appeals.

[25] As to the interaction between what they say is the court’s inherent and statutory authority to award costs and court rules that dictate how costs should be addressed, the Plaintiffs referred me to C.R. v. Children’s Aid Society of Hamilton where the presiding Justice writes this:

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are rules of court governing the circumstances of such cases. The powers conferred by rules of court are, generally, addition to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative and not mutually exclusive so that, in any given case, the court is able to proceed under either or both heads of jurisdiction. Any statutory framework addressing the regulation of court proceedings, whether by rules or practice directions, does not supplant the inherent jurisdiction of the court, unless the exercise of such jurisdiction contravenes a statute.

[26] The Fund argues that the Plaintiffs are seeking these costs in the wrong forum and in any event are out of time. It points me to s. 47 of the Supreme Court Act which allows that court to “order the payment of costs of the courts appealed from” and “of the appeal”. It also referred me to r. 83(2) of the Rules of the Supreme Court which requires that “the party awarded costs shall, within six months after the order setting out the final decision on costs, serve on all parties who are liable to pay, and file with the Registrar, a notice of taxation in Form 83A together with a bill of costs in Form 83B”.

[27] It cites the Court of Appeal’s decision in Bannon v. Thunder Bay, 2003 CarswellOnt 1158 (C.A.) where at paras. 2 to 3 the court writes:

Kozak J. did not have the authority to order that the costs of the appellate proceedings be assessed on a “risk plus premium” basis. We reject the submission that the breadth of jurisdiction of the trial judge pursuant to rule 57.01 is such that it can extend to treat appellate proceedings as incident to the trial. Moreover, having given the power to award costs of appellate proceedings to the Supreme Court of Canada, there is no gap that would justify giving the trial judge some type of residual discretion to order such a premium. The basis upon which costs were to be awarded in the appellate proceedings was a matter to be argued before the Supreme Court of Canada. Even if Kozak J. had had the authority to make the order that he did – which he did not – the matter of costs having already been decided by the Supreme Court of Canada, he could not adjudicate upon it again.

[28] This means, it argues, that the only available route for the Plaintiffs was to seek a costs assessment for the appeals with the Registrar of the Supreme Court of Canada, which it did not do, and for which they are now out of time.

[29] As indicated earlier the Plaintiffs counter this position by reference to s. 131 of the CJA. They argue that the authority I possess to award costs is not in conflict with the Supreme Court’s rules. They say that it simply augments the court’s inherent and discretionary authority. The Plaintiffs further argue that r. 83(2) does not apply in this situation as they are not a party awarded costs at that level.

[30] The Fund takes the further position that the Plaintiffs are not entitled to costs under the MVACA as there exists no judgment that sets out the costs payable as between the Plaintiffs and Rankins. It submits that as the judgment is silent on this issue no costs can be payable to the Plaintiffs from the Fund.

[31] The Fund disputes the Plaintiff’s assertion that they were required to pursue Rankin’s in this action. It argues that the MVACA does not require a plaintiff to pursue all claims against all potential tortfeasors to judgment or dismissal in order to have access to the Fund. Section 7(3) requires only that plaintiffs pursue all persons whom they “might reasonably consider to have a cause of action in respect of the damages in question”. The Fund characterizes the Plaintiff’s claim against Rankin’s as novel. It appears as if the Fund takes the position that it was unreasonable to believe that there existed a cause of action against Rankin’s, although counsel did not state it quite so starkly.

[32] At paras. 33 through 35 of its factum the Fund frames the issue this way:

33. The Fund cannot be expected to pay the costs associated with the risks borne by the Plaintiffs in advancing their litigation. In Ellis v. Gillan, the court held [as follows]:

I do not believe the fund should pay the costs of the original action of the plaintiff against the insurance company or the plaintiff’s costs of the appeal in that action to the Court of Appeal for Ontario, for while these were encouraged and almost insisted upon by the Attorney General’s Department, nevertheless they were taken at the risk of the plaintiff as he could first have made an application against the fund. As to the appeal to the Supreme Court of Canada, however, the Department not only encouraged but actually financed this final step, and I see no reason why it should not bear the burden of the costs, particularly in view of the fact that had it been successful the fund would have benefitted substantially.

34. The Minister submits that the maximum limit payable for damages, inclusive of pre-judgment interest, from the Fund is $200,000.00. Given the Plaintiff’s damages as a result of Joshua Johnson’s injuries are well in excess of these limits, in order to maximize the potential compensation for the Plaintiffs, they sued Rankin’s Garage in an attempt to gain access to Rankin’s Garage’s insurance policy with limits of $1,000,000.00 for the payment of their damages. If the Plaintiffs were successful against Rankin’s Garage, they stood to gain substantially more than they would if their only resort was to the Fund. This was the primary consideration for the Plaintiffs when deciding to advance a claim as against Rankin’s Garage and not because they were compelled by the provisions of the MVAC Act.

35. The Minister submits that appeals to the Court of Appeal and Supreme Court of Canada were advanced by the Defendant, Rankin’s Garage, not the Minister. The Minister did not insist that the Plaintiffs respond to the appeals, nor did they finance the Plaintiffs responses to the appeals.

[33] The Fund’s alternative position is that if it is required to pay the Plaintiff’s costs it should be for no more than its proportion of the judgment. That is, even if the entirety of Rankin’s proportion of liability is shifted to Crouse, its level of responsibility would only be for 60% of the damages in this case. Recall that the jury apportioned damages against Crouse in the amount of 23%, and the other defendants (excluding Rankin’s) were to share liability in the combined amount of 40%.

[34] I, first, accept that the Plaintiffs had no choice but to add Rankin’s as a party to this action. Given the outcome at both the Superior Court and Court of Appeal, and in light of the dissenting opinion at the Supreme Court, it has been well established that Rankin’s fits within the language of s. 7(3) of the MVACA. Of course I make this assessment with a fair dose of hindsight, but this action’s outcome and the judicial opinions that have been rendered confirm conclusively that the action against Rankin’s was not fanciful nor did it hang only on the hopes of establishing a novel claim. Rankin’s was indeed a person/entity against whom the applicant might reasonably have a cause of action in respect of the damages in question. And, as they were required to do, the Plaintiffs prosecuted Rankin’s until the Supreme Court ultimately dismissed the action against it.

[35] In some instances it will be fairly evident that a novel claim stretches all reasonableness and credibility. This is not such a case. Not only that but the Plaintiffs are not prescient. How were they to know that the Fund would ultimately take the position, when it was all said and done, that they needn’t have added Rankin’s to this action? They would have then faced the prospect of the Fund taking the position that Rankin’s needed to be added and that they did not have access to the Fund.

[36] This comes into sharp focus when you consider the Fund’s position at each appeal stage. It certainly did not then view the Plaintiffs action against Rankin’s as unsupported. In fact, it stood to gain a lot by the Plaintiffs succeeding in their position. Which makes the Fund’s current position that Rankin’s does not fall within the purview of s. 7 inconsistent with its overall approach to this litigation.

[37] On the question of whether I have the authority to award costs for the appeals, I find that I do. I discussed earlier what some may see as the conflict between s. 131 of the CJA and the Supreme Court’s rules. I appreciate the Plaintiff’s position which is there is no conflict, but assuming for a moment there is, there is important context to consider, and this is captured in paras. 26 to 30 of the Plaintiff’s factum where counsel elaborates on the Interpretation Act and the dangers of an overly narrow judicial interpretation:

26. Section 10 of the Interpretation Act states that every Act shall be deemed to be remedial, and every act is to receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the objective of the Act according to its true intent, meaning and spirit.

27. The Fund was created to avoid hardship and, as a result, the Motor Vehicle Act Claims Act has to be liberally and beneficially interpreted to ensure payment to persons injured by uninsured vehicles. The “rights created are not to be frittered away by a narrow judicial interpretation”.

28. The Act is to be given “a fair and liberal interpretation of the remedial legislation intended to prevent or alleviate financial hardship by reason of loss or damage caused by certain uninsured motorists.”

29. The question of the Fund’s liability does not arise until the liability of all the other potential parties are determined. If the Plaintiff was successful against any party with an insurance policy that would respond to the action, the issue of whether the Fund should pay costs and the quantum thereof never arises. As the Plaintiffs were successful at every step until the last one, they had no right to request costs from the Fund until now. It would be manifestly unfair to deprive the Plaintiffs of their costs for following the protocols required under the legislation.

30. Further, facilitating access to justice, including access to justice for impecunious litigants, is the fundamental objective in assessing costs. Access to justice includes access to legal representation. If lawyers cannot give a meritorious but difficult claim the time and effort it requires because of the fear of not recovering costs for their time and disbursements, fewer lawyers will recommend pursuing these claims or be willing to provide legal representation to the impecunious.

[38] I adopt this reasoning. To accept the Fund’s position on this point would be to apply an overly narrow judicial interpretation that would defeat entirely the purpose of the MVACA.

[39] Having found that the Plaintiffs had no choice but to pursue Rankin’s, necessarily means that the Plaintiffs had no claim against the Fund until all avenues had been exhausted, including the completion of appeals. The further context is this, and I briefly touch upon this earlier, but the Supreme Court was addressing only the issue of costs as between Rankin’s and the Plaintiffs. Meaning, had it specifically addressed the issue of costs as between the Plaintiffs and the Fund, or any other defendant for that matter, I would likely be barred from considering the issue of costs. But that was not an issue that arose in that forum. I appreciate and fully understand the Fund’s position, but when you consider the purpose of the MVACA (which is to avoid hardship), and s. 131 of the CJA, all factors weigh in favour of me making a costs award for all stages of this litigation, including appeals.

[40] I reject the Fund’s position that should costs be awarded against it that it should be limited to, at most 60%, which represents the jury’s verdict in respect of the combined responsibility of Crouse and Rankin’s. While the court has discretion to apportion costs in that way, it only makes sense when all responsible parties have the means to pay. That is not the case here, evidenced by the Fund’s involvement. The general rule is that unsuccessful parties are jointly and severally liable for costs unless the court says otherwise. In this case there is no reason to deviate from the general rule.

[41] On this question – whether the Fund, on behalf of and in the name of Crouse, is liable for the Plaintiffs’ costs throughout the entire action or just for those costs incurred at the Superior Court level – I find in favour of the Plaintiffs. The Plaintiffs are therefore awarded their costs, payable by the Fund (on Crouse’s behalf), throughout this action including both appeal proceedings.

[42] That leaves this issue: Whether the Fund, on behalf of and in the name of Crouse, should be liable for Rankin’s costs by way of a Sanderson or Bullock order.

[43] In Moore v. Weinecke, 2008 ONCA 162, the Court of Appeal set out a two part test for determining whether such an order should be made. I must, first, determine whether it was reasonable to join the Defendants together in one action. Second, if it was, should I exercise my discretion and make the order?

[44] The Fund argues that there is no basic entitlement to payment of costs to Rankin’s provided for in s. 7(1) of the MVACA. It contends that Rankin’s does not fall within the purview of the section because it did not recover a “judgment for damages on account of injury to or death of any person”. What it did secure was a dismissal of the Plaintiffs’ claim as against it, with costs. This is not a judgment to recover damages. Its primary position is that the Plaintiffs cannot recover these costs unless they can bring Rankin’s within the terms of the section.

[45] It further points to s. 26(1) of the MVACA which provides that:

The Minister shall pay out of the Fund costs of an action but not more than the actual disbursements and fees as awarded in the judgment as between the parties to the action.

[46] It relies upon these comments from the Court of Appeal in Fireman’s Fund Insurance Co. of Canada v. Minister of Consumer & Commercial Relations, 48 O.R. (2d) 138:

…notwithstanding the positive opening words of this provision, its function in the Act is to define the limit of the costs properly payable out of the Fund respecting an action expressly or implicitly recognized in the Act, and not to give an independent right to costs more or less.

[47] The Fund reminds the court that the basic rule and general principle is that, when a plaintiff succeeds against some defendants but not others, the unsuccessful defendant pays the plaintiff’s costs while the plaintiff pays the successful defendant’s costs. In other words, a Sanderson or Bullock order is the exception not the rule.

[48] The first part of the test is clearly met. It was entirely reasonable to join Rankin’s in this action, evidenced by the verdict in the Superior Court, Rankin’s unsuccessful appeal to the Court of Appeal, and the dissenting voices at the Supreme Court. The question then is, whether it would be appropriate for me to exercise my discretion and make the order. Put another way, would a Sanderson or Bullock order be fair and just in the circumstances of this case?

[49] In answering this question I am to consider four factors. First, whether the defendants at trial attempted to shift responsibility onto each other. Second, whether the unsuccessful defendant (Crouse) caused the successful defendant (Rankin’s) to be added as a party. Third, whether the two causes of action were independent of each other. Fourth, I must consider each party’s ability to pay.

[50] With respect to the first factor, the Fund argues that when Crouse testified at trial, he accepted complete responsibility and in no way attempted to blame Rankin’s. Furthermore, at no point has the Minister tried to shift responsibility to Rankin’s.

[51] With respect to the second factor, the Fund stresses the fact that it is the Plaintiffs who commenced this action against Rankin’s. I address this aspect of the Fund’s position earlier in these reasons, but to repeat it, the Fund takes issue with the Plaintiff’s assertion (and my finding) that in order to comply with s. 7 of the MVACA the Plaintiffs had to include Rankin’s.

[52] With respect to the third factor, the Fund argues that while the Plaintiff’s action is in relation to a series of sequential events, the claims against each defendant are quite distinct. It was alleged that Crouse negligently operated a motor vehicle, that Darlene Crouse negligently supervised minors, and that Rankin’s failed to keep its vehicles locked and secured.

[53] With respect to the fourth factor, the Fund argues that in light of the fact the Plaintiffs will receive from the Fund $200,000.00 for damages and prejudgment interest, they have the ability to satisfy a costs order. It further contends that Joshua’s mother Julie Johnson, in deciding to act as his litigation guardian, knowingly assumed the risks associated with advancing this litigation and must bear the consequences for Rankin’s success.

[54] The Fund asks me to consider one additional factor. I am advised that prior to the Court of Appeal hearing Rankin’s made a settlement offer to the Plaintiffs in the all-inclusive amount of $650,000.00, which was not accepted. The Fund claims it was not made aware of this offer and points out that it far exceeds the $200,000.00 Joshua will now receive. Plaintiff counsel disputes this advising that the Fund was well aware of the offer. I am unable to resolve this factual dispute. However, in my view, while the refusal to accept a settlement offer as good as or better than the final result is relevant, little depends on whether the Fund knew about it or not.

[55] I have carefully considered counsel’s submissions, both those delivered orally at the hearing and as set out in their respective factums. In the result I find that, notwithstanding the ultimate outcome at the Supreme Court, it was reasonable to include Rankin’s and indeed all of the defendants in the same action.

[56] I recognize that the Fund did not specifically request that Rankin’s be added as a party. In fact, Rankin’s was already a named defendant before the Fund’s involvement. That said, I will simply repeat that which I indicated earlier in these reasons, which is, the governing legislation required that Rankin’s be added as it was a “person (entity) against whom the applicant might reasonably be considered as having a cause of action”. I appreciate that hindsight is 20/20 but when you consider the judicial treatment of Rankin’s responsibility throughout this action, that fact has been borne out. The Supreme Court’s decision does not change this.

[57] On the question of whether the Fund attempted to shift responsibility to Rankin’s, I agree with the Plaintiffs. The Fund argues that it is the Plaintiff who stood to gain by including Rankin’s in this litigation. While this is true, and while Rankin’s, as an insured party, may have been a “deep pocket”, the Fund also stood to benefit from a finding against Rankin’s. It is clear to me that the Fund was highly motivated to establish Rankin’s liability and cooperated with the Plaintiffs in this regard throughout the action. It is also worth noting that the Fund cross-claimed against Rankin’s.

[58] I agree with the Fund that the causes of action as against Crouse, Darlene Crouse, and Rankin’s are in some respects different. That said, they arise from the same event and are clearly overlapping.

[59] As to the fourth factor, the Fund is the only party with the ability to pay costs. To burden Joshua with bearing his own costs would deprive him of everything he was entitled to as a result of the negligence of others. It would also defeat the purpose of the MVACA. Moreover, I have the ability to decide that the typical cost consequences of refusing to accept a settlement offer that was as good as or better than the final outcome – which did occur here – do not apply in certain cases. In light of Joshua’s injuries, his plight, and current circumstances, I ask myself this question: If not for Joshua, and if not this case, when would it ever be appropriate to deviate from the typical cost consequences?

[60] The bottom line is this. To do as the Fund suggests would be to create an injustice. It would inflict exceptional hardship on the Plaintiffs, in particular Joshua, who would be deprived of his entire damage award.

[61] I accept that a Sanderson or Bullock order is available as against the Fund, and should be made as it is the fair and just thing to do.

[62] As such, a Sanderson Order will issue requiring the Fund, on behalf of Crouse (the unsuccessful defendant) to pay Rankin’s (the successful defendant) its costs directly. As I understand it these costs have already been agreed upon and fixed in the all-inclusive amount of $135,000.00. In the unlikely event that these costs have already been paid by the Plaintiffs I make a Bullock Order in the same amount.

[63] Returning to my decision that the Fund pay to the Plaintiffs their costs throughout this action, including appeals, I am somewhat unclear as to the parties respective positions on quantum. Plaintiff counsel made reference to her costs outline, and the motion record references it as well. I, however, do not see it in the file. If I am being asked to fix an amount I would ask that Plaintiff counsel provide a costs outline to me, through my staff. If it was filed it has been misplaced. She is also permitted to file accompanying written submissions (on the issue of quantum only) not to exceed five pages in length. This is to be served and filed within 25 days of receipt of these reasons. The Fund may provide a written response – on the same issue and with the same page restriction – within 15 days of its receipt of the Plaintiff’s submissions. There is no right of reply.

[64] In addition, with respect to the proceedings at the Superior Court stage it is my understanding that the Fund acknowledges it should reimburse the Plaintiffs for their costs, or some portion of them. If an agreement has been reached as to the quantum of those costs, I would ask counsel to address this within their written submissions.

[65] Lastly, as indicated earlier in these reasons, I make an order approving the settlement of this action on behalf of Joshua who is a party under a disability.

Justice Jonathon C. George

Released: January 7, 2020

COURT FILE NO.: 58450 DATE: 2020/01/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Johnson by his Litigation Guardian, Julie Johnson, Julie Johnson, and Art Johnson, Plaintiffs

-and-

Cody Crouse, James Chadwick Rankin, carrying on business as Rankin’s Garage & Sales, ING Insurance Company of Canada, and Darlene Crouse, Defendants

REASONS FOR DECISION George J.

Released: January 7, 2020