Court File and Parties

COURT FILE NO.: CV-21-765 DATE: 2022-01-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lambrini Kutlarovski and Zoran Kutlarovski, Plaintiffs AND: Aviva Insurance Company of Canada and FirstOnSite Restoration Ltd., carrying on business as FirstOnSite Restoration, FirstOne Site Restoration Inc., carrying on business as FirstOneSite Restoration, FirstService Corporation carrying on business as FirstOnSite Restoration, Defendants

BEFORE: Conlan J.

COUNSEL: Ms. Assuras, Counsel for the Plaintiffs Mr. Cook, Counsel for the Defendant, Aviva Insurance Company

ENDORSEMENT on costs

I. Introduction

[1] On October 13, 2021, this Court heard argument from counsel on a motion brought by the Defendant, Aviva Insurance Company of Canada (“Aviva”). That motion was opposed by the Plaintiffs, Lambrini and Zoran Kutlarovski (“Kutlarovskis”).

[2] The motion sought two things: (i) an order appointing an appraiser pursuant to section 128(5) of the Insurance Act, R.S.O. 190, c. I.8, as amended, and (ii) an order compelling the Kutlarovskis to participate in that appraisal pursuant to Statutory Condition 11 of the policy.

[3] The motion by Aviva was granted, Kutlarovski v. Aviva Insurance Company, 2021 ONSC 6850.

[4] Unable to settle the issue of costs, the parties have filed written submissions. The successful party, Aviva, seeks costs on a partial indemnity basis in the amount of $4,736.25, plus $180.00 for the written submissions on costs themselves. The Kutlarovskis suggest that costs of the motion be reserved to the trial judge or, alternatively, costs be awarded to Aviva in the amount of $900.00, a figure that they submit is more reasonable and more consistent with their own costs outline.

II. Decision

[5] As the successful party, Aviva is presumptively entitled to some costs. In fact, the result of the proceeding is the very first criterion that is mentioned in Rule 57.01(1) of the Rules of Civil Procedure.

[6] On a hearing of a contested motion, unless the court is persuaded that a different order would be more just, the general principle is that the court should fix the costs and order them payable within thirty days: Rule 57.03(1)(a).

[7] The Kutlarovskis have not satisfied me that there is any reason to depart from the general principles outlined above, and in particular I see no utility in reserving the issue of costs to the trial judge. Costs will be fixed and will be made payable to Aviva, on a partial indemnity basis, within thirty days. The only legitimate question is that of quantum. What would be a just, fair, reasonable, and proportionate amount in all of the circumstances including the reasonable expectations of the Kutlarovskis?

[8] I agree with counsel for the Plaintiffs that this was a fairly simple and very efficiently argued motion. It was decided based entirely on the compulsory wording of the relevant statutory condition of the insurance policy in question.

[9] In my view, without criticizing the amount of time spent or the hourly rates charged by counsel for Aviva, $2,500.00, total, is a more appropriate quantum of costs to award in favour of Aviva.

III. Order

[10] This Court orders that the Kutlarovskis shall pay to Aviva, within thirty calendar days of the date of this Endorsement, costs for the motion in the total amount of $2,500.00.

C.J. Conlan

Electronic signature of Conlan J.

Date: January 18, 2022