COURT FILE NO.: CV-09-387789
MOTION HEARD: 20230119
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nallaiah Sinnappu and Navarathy Chandrababu, Plaintiffs
AND:
Sutha Tharmalingam, Defendant
BEFORE: Associate Justice Jolley
COUNSEL: David Wilson, counsel for the moving party plaintiffs
Daniel Himelfarb, counsel for the responding party defendant
HEARD: 19 January 2023
REASONS FOR DECISION
[1] The plaintiffs bring this motion for payment of costs of a settled action and for an increase in the pre-judgment rate beyond that provided for in the Courts of Justice Act.
[2] At issue with respect to costs is both the reasonableness of the amount sought and the inclusion in that amount of the unpaid portion of the costs incurred by the plaintiffs in the SABs hearings they initiated.
A. Background Facts
[3] This action arose from a motor vehicle accident that occurred on 3 October 2007. Neither the plaintiff Chandrababu nor her father Sinnappu returned to work after the accident.
[4] The action was ready to be set down for trial in May 2016 when it was discovered that it had been dismissed by way of registrar’s order. The order was set aside on consent and the trial record served in October 2016. The matter was set for trial to commence on 7 October 2019 for three weeks. At the pre-trial held 2 July 2019, plaintiffs’ counsel advised that he did not believe that the trial could be completed in three weeks and sought an adjournment. The pre-trial judge agreed and, as a result, the trial was rescheduled to 27 September 2021 for five weeks, with a further pre-trial set for 17 June 2021.
[5] Ultimately, the defendant served offers to settle on 7 September 2021, which the plaintiffs accepted on 15 September 2021. It was a term of the accepted offers that the defendant would pay costs “on a partial indemnity scale, calculated up to and including the date of the plaintiffs’ acceptance of the offer to settle, such costs to be agreed upon or assessed.”
[6] Parallel to this tort action, the plaintiffs commenced a number of applications for payment of statutory accident benefits (collectively, the “SABs proceedings”). When the insurer terminated payment of the IRBs, attendant care and certain medical treatments in 2008, the plaintiffs commenced an application for mediation, which was resolved on 12 February 2009, with the insurer continuing payments and making good on the back payments. The insurer terminated Chandrababu’s IRB payments a second time on 7 October 2009 and she commenced an application for arbitration. The hearing was set for November 2020 but was adjourned to July 2011 so that Chandrababu could obtain additional medical reports.
[7] That dispute settled on the eve or at the commencement of the hearing with the insurer paying virtually all the claims in dispute as well as $50,592.87 in costs and disbursements. In 2013 Chandrababu commenced a further SABs proceeding over her treatment plans, which resolved upon payment of $375,000 divided among IRBs, med/rehab benefits, assessments, costs and disbursements.
[8] In total, Chandrababu received just under $600,000 in her SABs proceedings. The Sinnappu SABs matter followed a similar route with a failed mediation, a commenced arbitration and a settlement. Sinnappu received a total of $66,898.00.
B. The costs related exclusively to the civil action
(i) Claim for Costs
[9] The plaintiffs seek total costs of $293,789.09, comprised of $164,105.72 for costs of the civil action, inclusive of disbursements, and costs of $115,252.07 and $14,431.30 for the SABs proceedings.
[10] The costs claimed for civil action total $65,104.11, being $57,614.25 plus HST. The defendant argues that those costs should not exceed $40,000 plus HST, based on a comparison of the time she spent and taking into account the plaintiffs’ delay.
[11] Rule 57.01(1) sets out the factors the court is to consider when awarding costs, including the importance and complexity of the issues, the amount claimed and the amount recovered in the proceeding, the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, the reasonable expectations of the parties, and whether any step in the proceeding was improper, vexatious or unnecessary.
[12] The action took twelve years to reach trial, and settled two weeks before the scheduled trial date. The defendant argues that the 165.7 hours spent on the action was unreasonable and was, in good part, due to the plaintiffs’ failure to move their case forward in any kind of timely manner.
[13] There is no disputing that the action took an inordinate amount of time to get to trial. However, there is no evidence before me that it could have been settled earlier. The defendant led evidence that the plaintiffs did not respond to inquiries about settlement but it was always open to her to make an offer, which she ultimately did, and which resulted in the settlement on the eve of trial.
[14] The plaintiffs’ bill of costs covers four periods. The first covers the period shortly after the date of the accident to the conclusion of examinations for discovery in February 2011 and comprises 26 hours. This does not seem an unreasonable number and the partial indemnity rate of $300 is also reasonable for counsel who was charging $465 an hour at that time and was called in 1972.
[15] The second is comprised of 34.7 hours spent from February 2011 to the conclusion of the mediation in July 2015. According to the bill of costs, the time was spent primarily on answering undertakings, following up on answers from the defendant and obtaining medical documentation and reports. The total based on $325 an hour is also reasonable.
[16] The third tranche of the bill of costs covers the period from July 2015 to 16 July 2019, just after the first pre-trial. Plaintiffs’ counsel spent 53.95 hours, half of which was on 280 pieces of correspondence, and the bill of costs has used a partial indemnity rate of $350. The total time is not out of line for a period of four years for follow up with undertakings, assessments and attendance at one trial scheduling court and one pre-trial.
[17] The last tranche covers the period from the adjourned trial in July 2019 to settlement in September 2011. Plaintiffs’ counsel spent 51.05 hours, again almost half of that on 211 pieces of correspondence. While the partial indemnity rate used is $385, it is not out of line given the decisions that note that the $350 rate set in 2005 may be adjusted for inflation.
[18] The defendant argues that the costs incurred from 2019 to 2021 were due only to the plaintiffs’ request for an adjournment of the 2019 trial and should not be visited on the defendant.
[19] The record indicates that in July 2019 the plaintiffs requested an adjournment of the October 2019 trial on that basis that they had underestimated the trial time required. The defendant opposed the adjournment request. The trial was adjourned for two years, to September 2021. As a result, the defendant required updated medicals. The plaintiffs produced 12 additional expert reports starting in March 2021, which were part of the reason that three weeks of trial time was no longer believed to be sufficient. As the plaintiffs also refused to attend defence medicals, the defendant was put to the expense of a motion to compel their attendance. I cannot find, however, that this motion caused delay, as there was a fixed trial date. Nor did the refusal to attend cause any costs that were not dealt with by the motions associate judge, who ordered the plaintiffs to attend to be examined and to pay costs of the motion, as agreed or submitted.
[20] I agree that a significant portion of this last tranche must be reduced as those costs would not have been incurred had the trial proceeded as scheduled. While I was not provided with a breakdown of costs, I note from the description that time was spent on arranging for further assessments, reviewing defence assessments and preparing an updated pre-trial memo. Had the trial not been adjourned, these further assessments and other steps would not have been required. I have reduced this portion of the costs claim by roughly half, to $9,654.25 to take this into account.
[21] The defendant argues that the costs sought are disproportionate considering the result obtained. I am mindful that the claim sought significant general and special damages for each plaintiff and took twelve years to resolve. In addition to their general damages claim, the civil action also advanced the plaintiffs’ claim for loss of income, med/rehab, attendant care, housekeeping and home maintenance. Exposure for those heads of damage was significantly reduced as a result of the SABs proceedings payments. Chandrababu alone received $469,513.38 for IRBs, $9,964.29 for housekeeping and home maintenance, $19,531.43 for attendant care and $98,913.57 for med/rehab. Those payments allowed Chandrababu to settle her civil action for $75,245.69 and Sinnappu for $35,245.69. I do not find the costs disproportionate to the outcome, considering the defendant’s exposure and the overall recovery. I am also mindful that the costs are significantly less than those incurred by the defendant, who spent a substantially greater amount of time over a significantly shorter period of time.
[22] As noted in paragraph 12, above, the defendant also argues that the costs were increased due to the slow pace at which the plaintiffs prosecuted their action. While there was significant delay, aside from the costs caused by the trial adjournment, for which I have accounted, I cannot find that the delay was exclusively the fault of the plaintiffs. Some of the delay can be attributed to the named defendant’s failure to cooperate, which resulted not only in a motion by the plaintiffs to compel her to answer her undertakings but also a motion by the defendant’s insurer to be added as a statutory third party and a separate claim by the plaintiffs against their own insurer. While considerable time was spent debating whether the two actions should then be consolidated or tried together, the defendant’s failure to cooperate was the root cause of that issue even arising. Ultimately, given the disparate stages of the actions, they were not ordered consolidated.
[23] I do not discount that the action was dismissed twice by the registrar for delay, but there is no evidence that those dismissals increased the costs of the litigation. The first dismissal was rectified on consent within three weeks and the second occurred unbeknownst to any of the parties. When it was discovered, an order was taken out on consent setting aside the dismissal.
[24] Reducing the time as set out in paragraph 20 brings the plaintiffs’ overall partial indemnity costs to $47,614.25 or $53,804.10 inclusive of HST, which I find to be a fair and reasonable sum for the defendant to pay for the costs exclusive to the civil action.
(ii) Claim for Disbursements
[25] The plaintiffs seek payment of $95,238.19 in disbursements, in addition to the $500 in disbursements which Wilson, J. ordered the defendant to pay in September 2019. They have not attempted to separate disbursements related to the civil action from disbursements related to the SABs proceedings. The disbursements totalled $143,380.25, from which the plaintiffs have deducted payments made by various law firms and by the plaintiffs’ accident benefits insurer. The defendant argues that disbursements should be in the $40,000 range.
[26] The defendant argues that the cost of obtaining the reports after September 2019 was due to the plaintiffs’ requested trial adjournment. I agree that $15,209 of the expert report amounts would not have been incurred but for that adjournment request. Those expenses were incurred in 2021 to provide updated information for trial and are disallowed.
[27] Of the amount sought, $93,026.54 is claimed for reports prepared by Dr. Prutis, Atila Balaban, Dr. Wong, David Antflick, Dr. Fung, Sophie Bielawski, Dr. Garber, Dr. Kanagaratnam, ADS Forensics, Carol Kelly Future Care and Carol Bierbrier Future Care. The defendant argues that there is no evidence that these disbursements were incurred for the civil action, as opposed to the SABs proceedings.
[28] While reports of Drs. Prutis, Garber, Wong and Kanagaratnam as well as reports from Balaban, Bielawski and Antflick were served and used in the SABs proceedings, it appears they were also used in the civil action. These doctors and medical practitioners also continued to provide reports in the civil action after the settlement of the SABs proceedings. There were multiple reports served from Dr. Wong, Carol Bierbrier Future Care and Atila Balaban which, presumably, required an understanding of the plaintiffs’ prior conditions to be both relevant and complete, which information would have been set out in their earlier reports. To the extent the reports were used for both proceedings, the plaintiffs have given a credit for the amounts received from the insurer. I find the fact that they were used for both proceedings is not a bar to recovery of their cost in the civil action, for which they were necessary and were used.
[29] It appears that the medical report of Dr. Kirwin was used exclusively in the civil action, as I did not find any reference to or payment of the Kirwin report in the SABs proceedings accounts.
[30] While the defendant asserted in her factum that the plaintiffs’ delivery of several medical expert reports unnecessarily increased the cost and that they did not provide compelling evidence of a material change, I was pointed to no evidence in the record to support these assertions. I find the costs of the reports are recoverable, other than the $15,209 incurred as a result of the adjournment.
[31] The plaintiffs’ disbursement history list opens with a listing of $23,804.63 in miscellaneous disbursements incurred from January 2009 to June 2021. While neither party reviewed these, it seems that only a few relate to the civil action. There are a number of entries for interpretation fees that relate to the SABs proceedings and related parking, mileage and other expenses. If they are to be considered, they can only be done in the context of the SABs proceedings-related costs claim, discussed below. Of those miscellaneous costs that remain, I allow those related to the civil discovery interpreter and examination fee, the mandatory mediation and those amounts from November 2017 onward to March 2021, as they relate to the civil action exclusively.
[32] Photocopying costs of $5,874.60 are claimed. I have deducted from that amount of $2,980.20 which were incurred exclusively for the SABs proceedings, leaving $2,984.40 allowed.
[33] I have disallowed the courier claims of $582.69 as there is no evidence this was necessary. $301.00 of the total relates exclusively to the SABs proceedings and can only be considered in that context, below. There was no explanation offered as to the need for or quantity of the photocopy charges. I allow half the $690.75 in facsimile charges, after deducting $340.09 of which was incurred exclusively to the SABs proceedings, for a total of $175.33 ($690.75-$340.09/2).
[34] I have allowed the two fees relating to the issuance of the claims. I have disallowed the other filing fees as I have no information about to what they relate.
[35] In conclusion, of the disbursements related exclusively to the civil action, I have disallowed $35,442.74 of the disbursements for the civil action, comprised of (a) $15,645.33 of the miscellaneous first category on the disbursement list relating to the SABs proceedings and the reports post adjournment (allowing the $8,159.30 that appears to relate to the civil action[^1]), (b) the courier fee of $582.69, (c) $515.42 of the facsimile fees; (d) $2,890.20 of the photocopy fees, (e) $15,209 of the expert reports; (f) $247.10 of the process server fees relating to the SABs proceedings; (g) $300 in arbitration fees for the SABs proceedings and (h) $53 related to conduct money. This leaves a total disbursement award in the civil action of $59,795.45.[^2]
(iii) Claim for legal fees related to the SABs proceedings
[36] The plaintiffs incurred legal fees of $212,164.90 in connection with the SABs proceedings. As part of the settlement, the AB insurer paid $72,887.83 toward Chandrababu’s costs and $9,593.70 toward Sinnappu’s costs, at the rate of $150 an hour. There is a shortfall of unreimbursed costs of $129,683.37 which the plaintiffs seek to recoup from the defendant in this civil action.
[37] The plaintiffs argue that the defendant benefited by the SABs proceedings’ payments of $597,922.67 to Chandrababu and $66,898 to Sinnappu, significantly reducing her exposure in this action to the plaintiffs’ claims for income loss, attendant care benefits, housekeeping benefits and med/rehab benefits and that she should contribute to the SABs proceedings costs as a result.
[38] The leading case on the ability to claim costs of a SABs proceeding from a civil defendant is Cadieux v. Cloutier 2018 ONCA 903. The court’s starting point was that “the tort defendant should not be required to pay the costs of the plaintiff’s pursuit of SABs as a general principle or as a matter of course. The issue is fact-driven and depends on the particular circumstances of the case.” (paragraph 130).
[39] Cadieux cited the following from Hoang v Vicentini 2014 ONSC 5893, with approval:
“The Regulations provide a comprehensive scheme for the recovery of benefits associated with motor vehicle accidents, and there are provisions for the payment of costs…. The pursuit of SABs and whether to settle or proceed to the next level is in the discretion of counsel and the injured party…. Tort defendants are not involved in the SABS process and have no ability to control it. It would be unfair as a general proposition, in my view, to lay the costs of the accident benefits pursuit at the feet of the tort defendants. There may be times when a tort defendant derives a clear benefit from the accident benefits matters by way of a deduction of the amounts from damages, and in those circumstances a judge fixing costs in a tort action may consider it appropriate that the tort defendant pay the costs incurred by the plaintiff in securing the benefits. At other times, however, there may be “compelling circumstances,” as described in Moodie v. Greenaway Estate, [1977] O.J. No. 6525 (Ont. Ct. J., Gen. Div.), at para. 4, where it would be inappropriate to visit the costs of dealing with other insurers on a Defendant in a tort claim. There is no hard and fast rule…. As I stated in Ananthamoorthy, at para. 21, "the solicitor for the Plaintiff is bound to pursue his client's entitlement to various benefits . . ." There are limitations on that activity. The statutory scheme which exists for securing accident benefits provides for the payment of costs. In many if not the majority of cases where there is a tort action going forward, the pursuit of accident benefits is quite separate from the tort action, including separate disbursements and expert reports. It is appropriate in these circumstances that the solicitor for the Plaintiff accepts the costs as awarded at FSCO. In other cases, depending on the facts, it may be appropriate for some of the time expended in pursing statutory benefits to be included in the fees sought in the tort action. I do not agree that a Plaintiff can take whatever steps he or she wishes to recover accident benefits and then demand and expect payment from the tortfeasors in a different proceeding.”
[40] The Cadieux court set out several factors to be considered by a trial judge in determining whether to award costs to a plaintiff for the recovery of SABs costs (paragraph 132):
(a) the fees and disbursements actually billed to the plaintiff in pursuit of the SABs;
(b) relevant factors in rule 57.01, including whether the litigation of the SABs claim involved particular risk or effort;
(c) the proportionality of the legal costs and expenses incurred by the plaintiff to the benefit of the SABs reduction to the defendant;
(d) whether the SABs were resolved by way of settlement or by arbitration;
(e) any costs paid as a result of the settlement or arbitration;
(f) whether all or any portion of the costs were incurred as a result of unusual or labor-intensive steps that should not reasonably be visited upon the tort defendant;
(g) whether or not plaintiff's counsel was acting on a contingent fee basis and, if so, the terms of the arrangement; and
(h) the overall fairness of the allocation of the costs of pursuing SABs as between the plaintiff and the SABs insurer and as between the plaintiff and the tort insurer.
[41] I do not accept the defendant’s argument that she did not benefit from the outcome of the SABs proceedings. The plaintiffs obtained a substantial recovery, amounts they otherwise would have sought from the defendant in this tort action. I also accept, as noted by Ramsay, J. in Antony v Kumarasamy 2022 ONSC 6619 at paragraph 43, “a tort defendant will derive some benefit from the plaintiff pursuing their accident benefit claims. However, this is just one factor to be considered.”
[42] It is not clear whether the SABs proceedings involved particular risk or effort. They certainly did involve time and there can be no dispute that effort was required, given the insurer ‘s termination of Chandrababu’s benefits in September 2008 and again in October 2009. There was delay, firstly as a result of the Chandrababu’s delivery of a substantial medical and assessment brief close to the scheduled hearing date. The reports had all been prepared in 2008 but it appears from the record before me that they were not delivered to the insurer until September 2010. The insurer requested and received an adjournment from November 2010 to July 2011.
[43] Because no detailed legal accounts were provided concerning the SABs proceedings, it is difficult to assess whether this adjournment caused unnecessary expense or whether there were unusual or labour-intensive steps taken. The account for Sinnappu simply states “all professional services rendered with respect to resolution of accident benefits claims including drawing and engrossing application for mediation; attendance at mediation; all steps with respect to arbitration hearing including commencement of same; attendance at pre-hearing, all preparation for hearing and all negotiations; all correspondence herein and reporting herein - $17,500 plus GST.” A second bill was rendered to Sinnappu that same day “for professional services rendered herein with respect to arbitration proceeding from and after July 1, 2010 - $5,000 plus HST.”
[44] Chandrababu’s accounts were similar. The first SABs arbitration settled in July 2011 and accounts were rendered in November 2011, the first for all professional services rendered from October 2007 to June 2010 (102.35 hours @ $440 per hour = $45,034 plus GST.) The second account, also dated 7 November 2011 covered the services from July 2010 to date (61 hours @ $440 per hour = $26,840 plus HST).
[45] In November 2013, plaintiffs’ counsel commenced a second arbitration concerning Chandrababu’s disputed treatment plan. That arbitration resulted in the settlement of all of her accident benefit claims at $375,000 ($284,750 for IRBs, $22,500 for med/rehab benefits; $10,000 for assessments, $45,200 for costs inclusive of HST and $12,550 for disbursements inclusive of HST) in exchange for a full and final release.
[46] As the SABs proceedings all ended in a settlement rather than a hearing, it is more difficult to know whether they involved particular risk. This is not to undervalue the work of plaintiffs’ counsel, who was faced with a complete denial and concluded, I am told, with almost complete coverage and payment. This required the assembly of a number of lay and expert medical reports, which seem to have caused the insurer to abandon its original position.
[47] The plaintiffs argue that the defendant made an offer to settle which included “costs on a partial indemnity scale … such costs to be agreed upon or assessed”. Knowing that the plaintiffs were pursing the SABS proceedings costs and knowing what that amount was, the plaintiffs argue that the defendant cannot now take the position that those costs are not payable. I agree with the defendant that having a “reasonable expectation” that the plaintiffs would claim payment of those costs is not the same as a “reasonable expectation” that the defendant would be required to pay those costs. Their disclosure and the subsequent offer to pay costs as agreed does not equate to any agreement to pay the SABS proceedings costs, nor is there evidence that the defendant led the plaintiffs to believe she would do so.
[48] One factor I must consider is the overall fairness of the allocation of the costs of pursuing SABs as between the plaintiff and the SABs insurer and as between the plaintiff and the tort insurer. The SABs insurer paid $82,481.53 in costs. Total incurred legal costs of the SABs proceedings were $212,164.90, leaving a shortfall of $129,683.37.
[49] Plaintiffs’ counsel spent 464.71 hours on the SABs proceedings, none of which went through to a hearing. Without some further information, I cannot assess the reasonableness of the time spent, given their lack of specificity. I cannot assess whether it was reasonable to write 410 pieces of correspondence over the life of the SABS proceedings or what the correspondence concerned. On the other hand, it does not appear that the SABs insurer challenged the time spent. It also appears that some of the time spent by the plaintiffs was on motions that were unsuccessful and which may have necessitated the second arbitration.
[50] The SABs proceedings accounts billed at a rate of $440. If a partial indemnity rate of $350 were used for the 464.71 hours spent, the accounts would total $162,648.50 of which the plaintiffs have been reimbursed all but $80,166.97.[^3]
[51] As noted, the settlement of the SABs proceedings lessened substantially the exposure of the defendant in this action and I find that she received a benefit as a result. I am of the view that some contribution is warranted. However, I echo the concerns expressed in Hoang v Vincenti, supra at paragraph 44 that defendants in tort actions have no ability to control the costs in the SABs proceedings and should not be looked upon as a blank cheque. Further, they should not be called upon to backstop the shortfall caused by the hourly rate that accident benefits insurers pay or by the cap of $1,500 they pay for medical reports.
[52] There is presently a shortfall created by that gap of $80,166.97 using a partial indemnity rate. Of that amount, considering the factors in rule 57.01 and the Cadieux factors, I find it would have been reasonable that the defendant pay $25,000 of these costs. However, I have reduced that figure by $5,000 to account for any premium that plaintiffs’ counsel charged his clients, as that is a matter between the plaintiffs and their counsel and it would not be appropriate or reasonable to expect a defendant to pay that amount. This results in a net payment of $20,000.
(iv) Claim for disbursements related to the SABs proceedings
[53] In reviewing the disbursements in the context of the civil action, above, I found that there were certain expenses claimed that were exclusive to the SABS proceedings. For instance, a number of reports were obtained to respond to the medical assessments of the SABs insurer and were not for or of substantial benefit to the civil action. While they were of benefit in ultimately negotiating payment from the insurer, I have taken that success into account in ordering the defendant to pay a portion of the costs of the SABs proceedings.
[54] I find that no further payment of disbursements is warranted.
C. Claim for Increased Pre-judgment Interest
[55] Under section 127 of the Courts of Justice Act, the applicable pre-judgment rate is 0.5%, subject to the discretion of the court under section 130 to increase the rate. Those factors include (a) changes in market interest rates; (b) the circumstances of the case; (c) the fact that an advance payment was made; (d) the circumstances of medical disclosure by the plaintiff; (e) the amount claimed and the amount recovered in the proceeding; (f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and (g) any other relevant consideration.
[56] The plaintiffs seek an order allowing interest at a higher rate with respect to both their general damages and their special damages. At the time of the accident, the pre-judgment interest rate was 4.8%. By the time the action started, it had fallen to 0.5%. The plaintiffs argue that the pre-judgment rate should be increased as it is disproportionate to the increase in the deductible since the accident, which has eroded the value of their claim over time by roughly 2.32% each year, given the increase in the deductible of roughly 32% from the date of the accident to the date of settlement in 2021. They argue that the pre-judgment interest on the damages portion of their claim should be adjusted to 2.32% to even out this impact and the rate on special damages, which are unaffected by the deductible, increased to 1.359%.
[57] The plaintiffs have confirmed that no decision has accepted this argument to increase the pre-judgment rate on this basis. The argument similarly finds no traction here. Assuming that the increase in the deductible in the face of an historic low interest rate caused some unfairness to the plaintiffs, both the deductible amount and the applicable interest rate are set by the legislature and who would be deemed to know and approve of the consequences of those rates on plaintiffs. It is not a burden that I find, in any event, should be shifted to the defendant. I find no unusual circumstance that would convince me to exercise my discretion to increase the rate of pre-judgment and this portion of the motion is dismissed.
D. Conclusion
[58] I order the defendant to pay the plaintiffs (a) $53,804.10 in costs of this action on a partial indemnity basis, inclusive of HST; (b) $59,795.45 for disbursements in this tort claim on a partial indemnity basis, plus HST as applicable; (c) $20,000 as a contribution to the plaintiffs’ costs of the SABs proceedings; and (d) $0 for disbursements incurred in the SABs proceeding. The plaintiffs are not entitled to an increase in the pre-judgment interest rate.
[59] If the parties are unable to agree on costs, they may file submissions no more than three pages by 28 February 2023. Each party has already filed costs outlines so no new outlines will be permitted.
Associate Justice Jolley
Date: 10 February 2023
[^1]: $50.00, $214.29, $202, $90, $35, $145.99, $176.96, $376.11, $663.72, $309,73, $2,088.00, $3,687.50 and $120.00) [^2]: $95,238.19 claimed - $35,442.74 disallowed) [^3]: $162,648.50 - $82,481.53 paid)