COURT FILE NO.: CV-16-526310
WRITTEN COSTS SUBMISSIONS FILED: 20210125
COSTS ENDORSEMENT RELEASED: 20210427
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
CLAUDIA RIBOTTA
Plaintiff
- and-
PHUNG VAN THACH, ASHLEY NAZIR, MICHELLE SOOKOO and HARPAL SINGH DADI
Defendants
-and-
AVIVA INSURANCE COMPANY OF CANADA, added by order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c.I.8, as amended
BEFORE: MASTER M.P. McGRAW
COUNSEL: D. Ong and E. Faion
Email: dennis.ong@aviva.com
- for Aviva Insurance Company of Canada (“Aviva”)
G. Mazin
Email: gmazin@mazinlawyers.com
- for the Plaintiff
R. Bickford
Email: sgaete@bickfordlaw.com
- for the Defendant, Phung Van Thach (the “Defendant”)
COSTS ENDORSEMENT RELEASED: April 27, 2021
Costs Endorsement
I. Introduction
[1] In her Case Conference Endorsement dated August 6, 2020 (the “Endorsement”), Master Jolley ordered that Aviva’s motion for leave to be added as a Statutory Third Party to this action be heard by her for 45 minutes on October 26, 2020. At paragraph 2 of the Endorsement, Master Jolley states: “at least counsel for Ribotta and Thung (sic) oppose the motion.” At paragraph 1 of the Endorsement Master Jolley notes that Aviva had already served its motions materials and at paragraph 4 she states: “to ensure that date is met, the parties have agreed to the following timetable”. The timetable provides that “any responding party who wishes to file materials shall do so by 21 August 2020”. Aviva was required to serve any factum and brief of authorities by September 18, 2020 and any other parties by October 2, 2020. Aviva served its Amended Motion Record, Supplementary Affidavit, Factum and Book of Authorities on August 25-26, 2020. No other parties served materials.
[2] Due to a schedule change, I heard the motion on October 26, 2020. As set out in my Endorsement that day, counsel for the Plaintiff and the Defendant advised that their clients did not oppose the motion and that they never had. Aviva’s counsel advised that this was the first time that the Plaintiff and Defendant had communicated that they were unopposed. I granted the order sought and Aviva advised that it was seeking costs given the additional steps related to an opposed motion. Further to my Endorsement that day, I conferred with Master Jolley then in my Endorsement dated October 27, 2020, invited the parties to make written costs submissions.
[3] Aviva seeks $10,000 on a substantial indemnity scale or alternatively, $9,020.53 on a partial indemnity scale. The Plaintiff and the Defendant submit that no costs should be awarded.
II. Law and Analysis
[4] 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 (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).
[5] The general rule is that costs on a partial indemnity scale should follow the event. This 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 Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14). 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 v. Iqbal, 2017 ONSC 3672 at paras. 20-21). The court must also consider Rule 1.04(1) to secure the just, most expeditious and least expensive determination on the merits and Rule 1.04(1.1) to make costs orders which are proportionate to the importance and complexity of the issues and to the amount involved (Deonath at para. 21).
[6] The Plaintiff and the Defendant submit that they advised Master Jolley at the case conference that they were unopposed to the motion and that the Defendant only inquired into the evidence and efforts made by Aviva to locate and serve the Defendants Michelle Sookoo and Ashley Nazir. Aviva submits that Plaintiff’s and Defendant’s counsel advised Master Jolley that they sought to oppose the motion on the basis that Aviva had not performed a skip trace search or had an investigator locate Ms. Nazir and Ms. Sooko and that the motion was an attempt by Aviva to inappropriately reduce its insurance limits.
[7] In my view, Aviva is entitled to some costs of its motion on a partial indemnity scale. The record does not support the version of events as described by the Plaintiff and the Defendant. Not only did Master Jolley expressly state in the Endorsement that counsel for the Plaintiff and the Defendant were opposed to the motion, she scheduled 45 minutes for what is typically a routine 10-15 minute unopposed motion and ordered a timetable for the delivery of materials which was agreed to by the parties. There is no evidence that counsel for the Plaintiff or the Defendant made any effort to communicate to the court or Aviva that the Endorsement was incorrect. In fact, in an email to Aviva’s counsel sent on October 22, 2020, after receiving Aviva’s draft order and motion confirmation form confirming the motion as opposed, and after Aviva’s counsel stated his understanding that the motion remained opposed, Defendant’s counsel advised: “if you wish to proceed in this matter, we will be seeking costs”. All of this is inconsistent with an unopposed motion. The fact that the Plaintiff and the Defendant did not deliver responding materials carries little weight given that parties can and do oppose motions without responding materials and in any event, the decision not to deliver materials could have been made after Aviva had already incurred the expense of delivering its additional materials in accordance with the timetable agreed upon by the parties and ordered by Master Jolley.
[8] Even accepting the Plaintiff’s and Defendant’s positions that they never opposed the motion, it is not unreasonable to expect that at least one of them should have attempted to correct the express statement in the Endorsement that counsel opposed the motion with the court office or with Aviva’s counsel. In my view, it was reasonable in the circumstances for Aviva to rely on the Endorsement that the motion was opposed and whether they opposed or failed to communicate their non-opposition, the Plaintiff and the Defendant added unnecessary steps and costs and unnecessarily lengthened the motion (Rules 57.01(1)(e) and (g)). At the same time, neither the Plaintiff nor the Defendant acted in an abusive, reprehensible or egregious manner and I deny Aviva’s request for costs on a substantial indemnity scale (Standard Life Assurance Co. v. Elliot, 2007 CanLII 18579 (ON SC), [2007] O.J. No. 2031 (S.C.J.) at paras. 9-10).
[9] As Aviva was required to bring a motion for leave to be added as a Statutory Third Party in any event, it is not entitled to all of the costs it seeks. The amount must be reduced to reflect only the additional costs associated with an opposed motion, namely, the Supplementary Affidavit, Factum, Book of Authorities and related preparation and correspondence. Having reviewed Aviva’s Costs Outline and considered all of the relevant factors and circumstances, I conclude that it is fair and reasonable and within the reasonable expectations of the parties for the Plaintiff and the Defendant to pay costs to Aviva fixed in the total amount of $5,000, $2,500 each, payable within 30 days.
Costs Endorsement Released: April 27, 2021
Master M.P. McGraw