COURT FILE NO.: CV-17-580318

MOTION HEARD: 20191122

REASONS RELEASED: 20200210

COSTS SUBMISSIONS FILED: 20200406

COSTS ENDORSEMENT RELEASED: 20200814

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

JEYASINGHAM GABRIALPILLAI

Plaintiff

• and-

CO-OPERATORS GENERAL INSURANCE COMPANY

Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: Y.Song and A. Varno Email: ysong@swlawyers.ca -for the Plaintiff, Jeyasingham Gabrialpillai

R. Dowhan and M.McMahon Email: rdowhan@svlaw.ca -for the Defendant Co-Operators General Insurance Company

COSTS ENDORSMENET RELEASED: August 14, 2020

Costs Endorsement

I. Background

[1] The Plaintiff brought a motion to compel the Defendant Co-Operators General Insurance Company (“CGIC”) to answer 53 undertakings and 101 refusals arising from examinations for discovery (the “Refusals Motion”). The Plaintiff also sought leave to examine a second representative of CGIC (the “Examination Motion”, together with the Refusals Motion, the “Motions”). During 4 often contentious telephone case conferences and 2 court attendances over 9 months together with the parties’ efforts, CGIC satisfied all of the undertakings and many of the refusals. This left approximately 25 refusals in dispute.

[2] As set out in my Reasons for Endorsement dated February 10, 2020 (Gabrialpillai v. Co-Operators General Insurance Company, 2020 ONSC 903)(the “Reasons”), success was divided on the Refusals Motion and the Examination Motion was dismissed. The parties were unable to agree on costs of the Motions and have filed written submissions as provided in the Reasons.

II. The Law and Analysis

[3] The Plaintiff seeks costs of the Motions in the amount of $13,983.34 on a partial indemnity scale. CGIC requests costs of $26,144.52 on a partial indemnity scale. The Plaintiff submits that any costs awarded to CGIC should be payable in the cause.

[4] Section 131(1) of the Courts of Justice Act (Ontario) states that subject to the provisions of an Act or the Rules, 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. In exercising this discretion, the court may consider the factors set out in Rule 57.01(1).

[5] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Deonath at para. 21). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore at paras. 12-14).

[6] Costs rules serve five purposes: (1) indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) facilitate access to justice, including access for impecunious litigants; (3) discourage frivolous claims and defences; (4) discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) encourage settlements (394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at para. 10; Deonath v. Iqbal, 2017 ONSC 3672 at para. 20).

[7] While the relative success of the parties is usually the primary factor in determining costs, the manner in which the Motions proceeded calls for broader considerations. Namely, due to significant case management and court directions, all undertakings and approximately 75 refusals were answered, resolved or withdrawn leaving only 25 refusals and the Examination Motion for argument. In my view, this requires an examination of the necessity of the Motions and the parties’ conduct which contributed to the time and costs of the Motions.

[8] I start with my view that the Refusals Motion was necessary and important to the progress of this litigation. Without the Refusals Motion and related case management, I am not convinced that CGIC would have answered the outstanding undertakings in the manner and timeframe in which it did nor would it have agreed to answer some of the refusals. As my Endorsements reflect, the undertakings and refusals were reduced over time with court directions and counsel’s efforts.

[9] The Refusals Motion was also necessary given CGIC’s allegation that the Plaintiff’s water loss claim which is the subject of this action (the “Plaintiff’s Claim”) was staged and its investigation of the Plaintiff’s Claim as part of a potential conspiracy with 5 other similar claims made by other members of the Tamil community (the “Other Claims”). CGIC confirmed that it could not find a connection and is not taking the position in this litigation that the Plaintiff was involved in a conspiracy and asserts that the Plaintiff’s Claim was denied on its own merits. In any event, this line of questioning and related documentation are relevant and necessary for the Plaintiff to pursue.

[10] At the same time, the Plaintiff’s pursuit of certain documentation and information was over-reaching and contributed to unnecessary costs. As I commented in the Reasons, while CGIC was under-delivering, the Plaintiff was over-asking. This is reflected in many of the remaining 25 refusals, 22 of which were related to the Other Claims. In addition to documents related to CGIC’s investigation of the Plaintiff’s Claim on its own merits and those related to its investigation into whether there was a connection between the Plaintiff’s Claim and the Other Claims (which I held were relevant), the Plaintiff also sought the entirety of the investigative files and full particulars of the Other Claims. As CGIC is not asserting a conspiracy or connection, I held that the Plaintiff’s request for all documents and particulars related to the Other Claims was overbroad and disproportionate. However, to ensure that all relevant documents were produced, CGIC was still ordered to make all necessary inquiries to determine if there are any other relevant documents with respect to its investigations and inquiries into whether a conspiracy or connection existed.

[11] Taking all of the applicable factors and circumstances into consideration, I conclude that the Plaintiff is entitled to some costs. This is based largely on my finding that the Refusals Motion was necessary and that the efforts of the court and the Plaintiff were required to have the undertakings answered and reduce the number of refusals. However, in determining an amount to award the Plaintiff, this must be balanced against the divided success on the Refusals Motion and CGIC’s complete success on the Examination Motion (which consumed significantly less time and effort than the Refusals Motion). I do not find the amounts sought by either party to be very helpful in determining the quantum of costs. The amounts claimed are too high given the significant case management and the conduct of each party which contributed to the length and costs of the Motions.

[12] In all of the circumstances, I conclude that it is fair, reasonable, proportionate, consistent with Rule 1.04(1) and within the reasonable expectations of the parties for CGIC to pay costs tothe Plaintiff fixed in the amount of $3,500 payable within 30 days.

Costs Endorsement Released: August 14, 2020

Master M.P. McGraw