Court File and Parties

COURT FILE NO.: CV-11-439706 DATE: 20230412 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARY TERENCIA ANTONY, Plaintiff AND: RATNAKUMAR KUMARASAMY and REDDIAR RAGUNATH BAKTHAVACHALU, Defendants AND: THE WAWANESA MUTUAL INSURANCE COMPANY, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and CERTAS HOME AND AUTO INSURANCE COMPANY, added by orders pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, Third Parties

BEFORE: Justice A.P. Ramsay

COUNSEL: David S. Wilson, for the Plaintiff K. Bruce Chambers, for the Defendants

HEARD: In Writing

COSTS ENDORSEMENT

Overview

[1] The plaintiff was involved in a motor vehicle accident on November 20, 2009. State Farm Mutual Insurance Company and Certas Home and Auto Insurance Company (collectively, “State Farm”) was the liability insurer of the defendant, Ratnakumar Kumarasamy. State Farm denied coverage to the defendant and had added itself as a statutory third party pursuant to s. 258(14) of the Insurance Act, R.S.O. 1990 c. I.8. Shortly before a scheduled trial date, the plaintiff accepted a r. 49 offer to settle delivered by State Farm. The parties were unable to resolve the issue of costs, and, in the result, the plaintiff moved to have costs assessed.

[2] In my decision dated December 12, 2022, as well in a supplementary endorsement dated January 3, 2023, I awarded the plaintiff the full amount that she sought for her partial indemnity costs of $84,075 for the action. The parties settled the disbursements, after the motion was underway. I denied the claim for costs related to the recovery of the plaintiff’s collateral statutory accident benefits (SABS) and Canada Pension Plan (CPP) disability benefits.

[3] The parties were unable to resolve the issue of costs with respect to the assessment and written submission were received from counsel. The plaintiff subsequent sought, and received leave, to deliver reply to submissions, which were also reviewed.

Parties’ Positions

[4] Both parties are seeking costs.

[5] The plaintiff seeks costs in the amount of $20,258.85 inclusive of HST and disbursements. The plaintiff submits that it was awarded the full amount of the costs claimed and argues that the matter of disbursements was only resolved after the commencement of the motion. The plaintiff argues that the issues raised on the assessment were complex.

[6] State Farm seeks costs in the amount of $7,720.00. It argues that it was predominantly successful, and points to the fact that the plaintiff claimed a total amount of $415,786.17 for costs, of which $259,250.46 related to costs for pursuing the plaintiff’s SABS and $2,547.46 related to pursuing CPP benefits, both of which were denied.

[7] In my view, neither party is entitled to costs for the reasons below.

Analysis

[8] There were four issues to be determined in the plaintiff’s motion/assessment of costs: the quantum of legal fees related to the tort action, disbursements, recovery of costs related to pursuing her accident benefit claim, and costs related to her recovery of CPP benefits.

[9] The first issue, the quantum of the legal fees was complicated by the position taken by State Farm with respect to the limits under s. 258 of the Insurance Act, R.S.O. 1990, c. I.8. In my view, the arguments raised by State Farm were significant and complex. Neither party provided the court with any authority on this issue.

[10] On the first issue, the quantum of the legal fees was complicated by arguments raised by State Farm with respect to the limits under s. 258 of the Insurance Act. The plaintiff ultimately recovered the full amount that she claimed for costs of the action.

[11] With respect to the second issue, State Farm only agreed to the plaintiff’s disbursements after the hearing had commenced.

[12] As for the third issue, the plaintiff was not successful in recovering any costs associated with pursuing her SABS. While the plaintiff was not successful, in Cadieux v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, supplementary reasons at Cadieux v. Cloutier, 2019 ONCA 241, 432 D.L.R. (4th) 759, the Court of Appeal provided clarity on the factors to be considered by the court in determining whether a plaintiff involved in a motor vehicle accident may recover the costs of pursuing statutory accident benefits under the relevant regulation under the Insurance Act. In the result, both parties contributed to the lengthening of the proceeding.

[13] With respect to the fourth issue involving recovery of costs for pursuing CPP benefits, this appears to have been a novel issue. Counsel was unable to direct the court to any authority on point. In the result, I am not inclined to penalize the plaintiff in costs for advancing a novel argument with respect to the potential deductibility of other collateral benefits.

[14] In my view, this is an appropriate case not to award costs to either party as success was divided. Both parties advanced arguments which lengthened the proceedings. In Gardiner v. Mulder, 2007 ONSCDC 15473, [2007] 224 O.A.C. 156 (Ont. Div. Ct.), Cusinato J., at para. 17, cites Orkin on The Law of Costs, 2nd ed. (Ontario: Canada Law Book, 2005) at pp. 8-16, which referred to the general rule that a party is entitled to costs where he or she has substantially succeeded, but no costs where the party succeeds only partially, or success is divided. While the text refers to an “appellant”, the same principles apply to motions. As success was divided between the parties, I find it is fair and reasonable that each party bear their own costs.

[15] In this case, the plaintiff did not substantially succeed. She succeeded in recovering the full amount for her costs. She failed to recover her costs for pursuing her collateral benefits. I disagree with State Farm that the amount of costs being sought in relation to pursuing the SABS claims relative to the entire costs recovered, means that it was State Farm which was predominantly successful. The quantum involved reflects the importance to the parties, but it remains only one issue upon which the law was now settled. As for State Farm, it failed in its arguments in resisting the quantum sought by the plaintiff for her partial indemnity legal fees, and only agreed upon the disbursements after the hearing was well underway. The law is fairly settled in this area. In my view, success was divided. In general, where success is divided there should be no order as to costs: Gates v. The Humane Society of Canada, 2015 ONSC 107 (Ont. Div Ct.); Cox Construction Ltd. v. 1232046 Ontario Inc., [2009] 80 C.L.R. (3d) 29 (Ont. S.C.); Ferrelli v. Grilli, 2005 ONSC 363 (Ont. S.C.).

[16] Arguably, the issue of the recovery of costs for CPP was a novel issue, and given the principles articulated in Cadieux and the amounts involved, this was not a significant part of the assessment proceeding.

[17] The plaintiff’s Costs Submissions sought an order that the defendant pay post judgment interest from January 4, 2022, at a rate of 2%. That issue was not argued before me, but there is no reason why counsel for the parties cannot agree on this issue in settling the terms of the order.

A.P. Ramsay J. Date: April 12, 2023