Court File and Parties

COURT FILE NOs.: CV-21-006700440-0000, CV-22-00686470-0000 DATE: 2024-06-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria Cristina Azevedo AND: Everly L. Rumball and WTH Car Rental ULC and Royal & Sun Insurance Company of Canada

AND RE: Maria Cristina Azevedo AND: Kyle Murray

BEFORE: J.T. Akbarali J.

COUNSEL: Alex Flesias, for the plaintiff/responding party Brigette A. Morrison, for the defendants/moving parties WTH Car Rental ULC and Kyle Murray Michael Courneyea, for the defendant/responding party Royal & Sun Insurance Company of Canada

HEARD: May 30, 2024

CORRECTED ENDORSEMENT

Overview

[1] These actions relate to a motor vehicle accident in which the plaintiff’s car was struck by a car owned by the moving party, WTH Car Rental ULC (“WTH”), rented to the moving party/lessee Kyle Murray, and driven by the defendant Everly Rumball. WTH and Murray move for partial summary judgment dismissing these actions against them on the basis that Rumball did not have consent to possession of the car, such that there is no vicarious liability against WTH or Murray under s. 192 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

[2] No one suggests that WTH or Murray gave Rumball express or deemed consent to possession of the car. Nor does anyone suggest that WTH, through its actions, impliedly consented to Rumball having possession of the car. The real dispute between the parties relates to whether Rumball had Murray’s implied consent to possession of the car. If she did, everyone agrees that under s. 192 of the HTA, Murray and WTH are vicariously liable for her actions.

[3] The moving parties argue that I ought to determine the issue of consent one way or the other on this motion. If Rumball was in possession of the car with consent, it is WTH’s and Murray’s insurer which will have to respond to the plaintiff’s claim. Alternatively, if Rumball did not have consent to possession of the car, the claim is an uninsured claim, to which the plaintiff’s insurer, the defendant Royal and Sun Insurance Company of Canada (“Royal”) will have to respond. Thus, determining the consent issue will necessarily lead to the removal from the litigation of either WTH and Murray on the one hand, or Royal on the other.

[4] The plaintiff and Royal resist the motion on the basis that the question of consent engages significant credibility issues and requires a trial. In response to a question from me, Royal indicated that it would welcome a determination that Rumball had consent to possession of the vehicle, but it did not take the position in its written or oral argument that I ought to reach that determination. It thus seems to take the view that the evidence on this motion does not permit me to reach a conclusion on the question of consent, even in its favour.

Brief Conclusion

[5] For the reasons below, I grant the moving parties’ motions and dismiss all claims and cross-claims against WTH and Murray because I conclude that the moving parties have established that Rumball was not in possession of the vehicle with the consent, express or implied, of either of them.

Issues

[6] The fundamental question on this motion is whether Rumball was in possession of the car with the implied consent of Murray, the lessee.

[7] Relatedly, I must consider whether that fundamental question is appropriate for determination on a summary judgment motion.

The Test for Summary Judgment

[8] The test for summary judgment is well-known. It was enunciated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Summary judgment must be granted when there is no genuine issue requiring a trial. This will be the case when the process (i) allows me to make the necessary findings of fact; (ii) allows me to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.

[9] Where partial summary judgment is sought, as it is here, the motion judge is required to determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely and affordable justice or, instead, cause delay and increase expense: Malik v. Attia, 2020 ONCA 787, at para. 61. A court asks (i) how dividing the determination of the case in several parts will prove cheaper for the parties; (ii) how partial summary judgment will get the parties’ case in and out of the court system more quickly; and (iii) how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case: para. 62.

[10] In this case, I am satisfied that partial summary judgment is appropriate, for the following reasons:

a. Given the provisions of s. 192 of the HTA, it is apparent that either WTH and Murray’s insurer, on the one hand, or Royal, on the other, will have to respond to the plaintiff’s case. There is no possibility that both insurers will bear liability.

b. Determining which insurer has exposure, and correspondingly which insurer need not participate in the litigation further, will decrease the costs of the proceeding, both by letting out one set of lawyers thus making the trial, and any other future steps, shorter and cheaper, and by limiting exposure to an adverse costs award in favour of the insurer who underwrote the policy that does not respond to the plaintiff’s claim.

c. The removal of one set of counsel will shorten the time required for the steps remaining in the action and lead to the action getting through the court system faster.

d. I do not see a realistic risk of inconsistent findings in this case. The factual evidence suggests that the plaintiff was struck when Rumball, who was alone in the car, had a medical event while driving, perhaps became unconscious, went over the median, and struck the plaintiff’s car. Rumball was a G1 driver, meaning she was not permitted to drive a vehicle without a licensed driver beside her. Rumball’s liability does not appear to be an issue in this case. Thus, once consent is determined, there will be no need to consider factual or legal questions that could result in inconsistent findings relating to how she came into possession of the car. To the extent issues remain, they will be focused on the plaintiff: any allegation of contributory negligence, and damages, none of which have anything to do with consent. Alternatively, if there are any liability issues that remain, those will focus on Rumball’s actions qua driver.

[11] I am also satisfied that I can make the necessary findings of fact, apply the law to the facts, to achieve a just result that is proportionate, more expeditious, and less expensive than a trial would be.

Analysis

[12] The parties largely agree about the legal principles that govern this motion.

[13] Section 192 of the HTA provides, in part:

(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

(3) A lessee of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the lessee’s consent in the possession of some person other than the lessee or the lessee’s chauffeur.

(4) Where a motor vehicle is leased, the consent of the lessee to the operation or possession of the motor vehicle by some person other than the lessee shall, for the purposes of subsection (2), be deemed to be the consent of the owner of the motor vehicle.

(6) The driver, owner, lessee and operator that are liable under this section are jointly and severally liable.

[14] Sections 192(2)-(4) collectively speak to a claim against the owner of a vehicle (here, WTH), and the lessee of a vehicle (here, Murray) that is in the possession of someone else. The owner or the lessee is vicariously liable unless the person in the possession of the vehicle did not have the consent of the owner (s. 192(2)) or the lessee (s. 192(3)). However, where there is a lessee, consent of the lessee is deemed to be consent of the owner (s. 192(4)). Where liability arises, it is joint and several as between the driver, owner, and lessee (s. 192(6)).

[15] Of note, the focus is on consent to the possession of the vehicle, not consent to the operation of the vehicle.

[16] The public policy reasons behind the provision are discussed in Ligaj and Ligaj v. Ismail et al., 2017 ONSC 2056, at paras. 58, aff’d 2018 ONCA 271, citing Thompson v. Bourchier, 1933 CanLII 106 (ON CA), that is, “to protect the public by imposing upon the owner of a motor vehicle the responsibility of the careful management thereof and of assuming the risk of those to whom he entrusted possession that they would observe the law, and that if they failed in the discharge of that duty the owner … would be responsible [for all damages].” See also Fernandes v. Araujo, 2015 ONCA 571, at para. 20.

[17] There is no dispute that Murray was not in possession of the vehicle.

[18] As I have noted, there is no evidence that Rumball had express consent to possession of the vehicle from either WTH or Murray, nor evidence that she had implied consent from WTH. The issue is whether she had the implied consent of Murray to be in possession of the vehicle.

[19] The test to determine whether a driver is in possession of a vehicle with the implied consent of the owner or lessee is set out in Palsky et al. v. Humphrey et al., 1964 CanLII 96 (SCC), [1964] S.C.R. 580, described in Fyfe v. Bassett, 2012 ONSC 5125 at paras. 13-14, quoting Crangle v. Kelset (2003), 41 M.V.R. (4th) 232 (O.S.C.J.), at para. 19:

[T]he proper approach was a subjective one from the point of view of the driver, namely, whether the driver, under all the circumstances, would be justified in deeming that he had implied consent to drive.

[20] The test is not a subjective test as to whether the driver actually believed she had consent. “The test is objective as to whether it was reasonable in the circumstances that the driver would have been justified in deeming he had consent.”: Korody v. Bell, 2009 CanLII 20351 (ON SC), at para. 12, citing Canada (Attorney General) v. Mason, 1990 CanLII 7843 (NB QB), at para. 16.

[21] In Fernandes, at para. 28, the Court of Appeal accepted that there is a subjective component to the test for implied consent, but held that the court must give “careful consideration to all the evidence”; the court rejected the notion that the driver’s subjective belief was the determining factor.

[22] In Seegmiller v. Langer, 2008 CanLII 53138 (ON SC), at para. 34, Strathy J. (as he then was) articulated the following well-settled principles [cites omitted]:

1. The question of whether a motor vehicle is in the possession of some person without the consent of the owner is a question of fact to be determined by the evidence in a particular case.

2. The meaning of possession is a question of law but the application of that definition to any particular set of facts is not a question of law alone.

3. Possession is a concept capable of different meanings and there are different types of possession. The primary definition of possession contemplates power, control or dominion over property.

4. Once ownership of a vehicle is established, the onus passes to the owner to establish that the vehicle was, without the consent of the owner, in the possession of some person other than the owner.

5. The owner’s vicarious liability under s. 192 is based on possession, as opposed to operation of the vehicle.

6. “[C]onsent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction.”.

7. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle.

8. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession.

[23] I pause here to note what appears to be an inconsistency, in that the Palsky test speaks to “implied consent to drive” when it is clear from the statute that it is consent to possession of the vehicle, not consent to the operation of the vehicle, that grounds liability. However, the Palsky test identifies the lens of the question to be asked, that is, whether in all the circumstances, the driver would have been justified in deeming he had the implied consent of the owner to possession of the vehicle.

[24] To determine whether consent to possession can be implied, the court will look at all of the relevant circumstances, including the relationship between the parties and their course of conduct: Conners v. D’Angelo, 2017 ONSC 1104, (2017) 276 A.C.W.S. (3d) 940, at para. 50.

[25] An owner or lessee cannot avoid vicarious liability simply because the operator breached conditions or restrictions placed upon him: Naghash v. Pashahzahiri, 2023 ONSC 609, at para. 12.

[26] The parties put before me numerous examples of cases where courts have considered whether the facts as found establish implied consent to possession of a vehicle. Of note:

a. The unexplained failure of an owner to report his or her vehicle stolen in a timely fashion is a circumstance to consider when determining the issue of implied consent: Korody, at para 14. However, in at least some cases, it is unnecessary for criminal charges to be laid; vicarious liability may be negated regardless of the outcome of criminal proceedings: Conners, at paras. 64-66;

b. Other relevant factors include: (i) whether the driver has driven the vehicle prior to the date of the accident; (ii) whether the driver and the owner/lessee had ever discussed the driver driving or possessing the vehicle; (iii) the relationship between the parties; (iv) the location of the keys, whether they were safeguarded, whether the driver knew where they were, and whether they had easy access to them; (v) the owner/lessee’s reaction on discovering their car missing, and in particular, whether they telephoned police or their insurer, telephoned or tried to reach the driver, and whether they concluded that the driver had taken the car: Sparks v. Cushnie, 2021 ONSC 213 at paras. 83-84; Naghash, at paras. 15-21; Joseph v. Coxall-Mejia, 2021 ONSC 2508, at para. 12

c. In Bonter v. Estate of Nathan Laird et al., 2019 ONSC 2604, at para. 31, the court found that giving the keys to a car to someone to retrieve their personal property from it is not giving possession of the car to them, but only giving them the keys to get something out of it. See also Ligaj, at paras. 61-63, where the court found that it “stretches common sense and the rationale behind the public policy reasons” behind s. 192(2) to suggest that a father’s consent to his son “possessing” the vehicle to grab an item from the trunk could later be construed as consent to possess the vehicle to drive it, particularly when the son was not fully licensed.

[27] I now turn to an examination of the facts, many of which are uncontroverted. No one disputes that:

a. On January 31, 2021, at approximately 6 p.m., Rumball was the driver of a car proceeding southbound on Weston Road, when it crossed the median on Weston Road and struck the driver’s side of the plaintiff’s car, which had been travelling northbound on Weston Road.

b. Rumball was the sole occupant of the car she was driving.

c. The car Rumball was driving had been rented by Murray from WTH, through its agent Payless Car Rental.

d. Rumball was not a party to the rental agreement, nor was she an authorized driver under the rental agreement. As a result, she did not have express consent of WTH to possession of the rental vehicle.

e. Rumball could not have been a party to the rental agreement nor an authorized driver under the agreement because she held only a G1 licence.

f. Because Rumball was not authorized to drive a car without a properly licensed individual in the front seat of the car with her, she was charged with careless driving and with being a Class G1 licence holder unaccompanied by a qualified driver.

g. There is no evidence that Rumball had the express consent of Murray to drive the car.

h. There are no independent allegations of negligence against Murray or WTH. The claim against them is based on vicarious liability only.

i. Rumball and Murray were in a relationship and had been for about two to two-and-a-half years. They were living together at the time of the accident, although there is some question about the length of their relationship, which I address below.

j. At the time of the accident, Murray was asleep in his condominium.

k. Shortly before the accident on January 31, 2021, Rumball took the keys to the car from the condominium while Murray was asleep, and without Murray’s knowledge.

l. Rumball admits that she knew that if, on the day of the accident, she had asked Murray if she could take the car out on her own, he would have refused her request.

m. When Murray awoke, he made a number of calls and sent a number of text messages to Rumball before she responded to him from the hospital.

n. When Murray awoke and found Rumball absent, and noticed the car and the keys were missing, he concluded that Rumball had taken the car.

o. Murray never reported the car stolen to the police.

p. Murray frequently rented cars, but Rumball was never a party to the car rental contracts, nor did she contribute to the cost of the car rentals.

q. Rumball had not before driven any vehicle available to Murray without his knowledge or permission. Nor did she drive any other vehicle during their relationship, such as her mother’s.

r. Murray had permitted Rumball to drive one of his rental cars in the past when he was present in the car. There is some dispute about how often this occurred, which I address below.

s. When Murray rented a car, he would hang the car keys on a magnetic hook attached to the fridge in his condominium. The keys were thus not secured, and in plain sight. He continued to hang the keys to the cars he rented on the fridge after the accident, including during the time Rumball and Murray remained in a relationship.

t. Murray would permit Rumball to access any car he had rented for purposes of retrieving her belongings. There is some contradictory evidence as to how she accessed the cars.

[28] The evidence in dispute, which the responding parties allege raise serious issues of credibility, is:

a. Rumball testified that, at the time of the accident, she and Murray had been living together for six months to a year. At examination for discovery, Murray testified that, at the time of the accident, Rumball would be at his resident twice per week. Subsequently, on cross-examination, Murray testified that Rumball had been living at his residence for time for about two to three months prior to the accident.

b. Rumball testified that she drove Murray’s rental cars one or two times, but only when Murray was in the car. Murray testified that she drove his rental car once when he was in the car. At another point, he testified that he drove the car 99% of the time.

c. Rumball testified that if she had to collect something from a car Murray had rented, she would take the keys to let herself into the car. Murray’s evidence was that she did not require the keys to get into the car, because she or he could open the car from inside the residence using the key fob, or the vehicle would have been left unlocked.

d. Murray testified that Rumball would pay for gas for the rental car perhaps once a week, but Rumball denied contributing to gas costs.

[29] The moving parties argue that Murray and Rumball have made formal admissions that cannot be withdrawn without leave of the court: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946, (2000) 51 O.R. (3d) 97 (C.A.), at para. 77. They argue that the formal admissions are dispositive of the factual issues in this case.

[30] While I accept the ruling in Marchand, I disagree that the admissions are dispositive. The admissions speak to express consent to operate the vehicle, as opposed to implied consent to possession of the vehicle. To the extent that Rumball formally admits that she knew that if she had asked for Murray’s consent or permission to take the car out on her own, permission would have been denied, she speaks to her subjective belief. However, it is not her subjective belief that answers the question of implied consent. The question that must be asked is whether she would have been justified in deeming that she had consent.

[31] The facts I accept that support the moving parties’ position that there was no implied consent are:

a. Rumball had never taken one of Murray’s rental cars before;

b. Rumball had only driven one of Murray’s rental cars once or twice with his express consent and while he was in the car;

c. Both Rumball and Murray’s evidence is that, had Rumball asked for consent to have the car, he would not have given it;

d. Murray had no reason to suspect that Rumball would take the car without his consent or knowledge.

[32] The facts I accept that support the responding parties’ position that there was implied consent, or alternatively, that a trial is required to determine the issue are:

a. Murray left his keys unsecured and readily available;

b. Murray never reported the car stolen;

c. Murray concluded that Rumball had the car after he awoke, noticed she was not at home, and then noticed the car and keys were missing.

[33] Certain facts that were heavily relied on by the parties are, I have concluded, irrelevant to the determination. These are:

a. Murray and Rumball did not agree, and Murray’s evidence shifted on, the question of how long they lived together. How long they lived together is not a material fact to the question of implied consent; the fact that they were living together at the time of the accident is what is important. I note that Rumball’s evidence was that she continued to receive her mail at her mother’s house; thus while she was living with Murray, and in a serious relationship with him, their commitment was not such that Rumball had updated her identification or address. There was likely some fluidity to their living arrangements which explains the discrepancy in the estimates of how long they lived together; the inconsistencies in the evidence about the length of their cohabitation are unrelated to the issues on this motion.

b. Rumball was able to retrieve her items from Murray’s rental cars, either by unlocking the car physically with the key, or opening the car remotely using the key fob, or opening the car if it had been left unlocked. I agree with the courts in Bonter and Ligaj that a finding that retrieving belongings from a car is sufficient to ground implied consent to possess a vehicle stretches common sense and is inconsistent with the policy rationale behind s. 192. I place no weight on this evidence.

c. Rumball paid for gas for Murray’s rental cars. In my view, this is not an indication of possession of the vehicle, but rather, reflective of the fact that Murray would use the rental car to drive Rumball places, and she was contributing to gas costs to defray his expenses of doing so.

d. Murray continued to leave the car keys on a hook on his fridge, unsecured, after the accident, including while his relationship with Rumball continued. This may have been unwise, as by that time, Rumball had a history of having taken the car without Murray’s knowledge. However, the discovery transcript where this evidence is elicited reveals only that Murray continued to leave his keys unsecured. There is no exploration as to why. It is possible, as counsel alleges, that Murray was comfortable with Rumball accessing the car. It is more likely, in my view, that after the accident, Murray was not worried about Rumball taking the car, given the problems that had resulted the first time she had done so. I note Rumball’s testimony that she made a stupid decision in taking the car, and at the time of her examination, was still dealing with the ramifications and consequences. She stated that it had “a huge, huge, impact on [her] life”.

[34] In my view, the areas that the responding parties allege create credibility issues do not go to the heart of the issues on these motions.

[35] The evidence that Murray’s keys were left unsecured and available prior to the accident is a fact that supports the responding parties’ position; however, it is also consistent with my finding that Murray had no reason to think that Rumball would take the car. I thus do not place great weight on this factor.

[36] The fact that Murray concluded Rumball took the car when he awoke, but did not report the car stolen, are factors that can be considered in determining implied consent. However, in my view, they do not warrant significant weight in the analysis of implied consent. Murray did not discover the car missing first, and then immediately conclude that Rumball had taken it, as was the situation in Sparks. Rather, Murray first noticed that Rumball was not home. When he thereafter noticed that both the car and the keys were gone, the conclusion that she took the car was obvious.

[37] Moreover, I would not have expected Murray to call the police in those circumstances. At the time, he would not have understood why Rumball took the car, and while he may have thought that he had a domestic problem on his hands, in that she took the car without his permission, most people do not escalate non-violent domestic disagreement to the police, especially before having had a chance to speak to their partner about it. Moreover, I do not find it surprising that Murray did not telephone the police after the accident. Rumball was injured in the hospital, and the two remained in a relationship. She had made, as she described, a stupid decision, but that would not lead Murray to conclude that he ought to compound the problem by seeking to press charges against his partner.

[38] In this case, I find that: (i) after a relationship of two years or more; (ii) during which Murray frequently rented cars; (iii) which Rumball did not drive apart from one or two occasions with Murray’s express permission and while he was in the car with her; (iv) when Rumball had only a G1 license and did not drive any other cars, including her mother’s; (v) when Rumball was not a party to the rental contract, and only contributed to gas costs to defray costs of Murray driving her places; and (vi) when Rumball had been free to access the keys or retrieve her belongings from the rental cars throughout this time without ever having taken the car; that Murray would not have reason to conclude she would take the car, and as such, would not have taken steps to secure the keys. Rumball had not given Murray any reason over the duration of their relationship to think she could not be trusted not to take the car were he to leave the keys in an accessible location.

[39] I find that the moving parties have established, on a balance of probabilities, that Rumball took possession of the car without express or implied consent from either WTH or Murray.

Costs

[40] The issue that remains is costs. I asked the parties to upload their costs outlines and any relevant offers to settle, clearly marked, to CaseLines, and suggested I would review them and determine costs after determining the issues on the merits. The parties were content with my proposal, and this is the process I have followed.

[41] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[42] Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

[43] The moving parties are the successful parties on these motions, and they are presumptively entitled to their costs. Because summary judgment has been granted in their favour, they are presumptively entitled to both, costs of the motion and costs of the action.

[44] The moving parties delivered offers to settle these actions. On February 3, 2022, WTH offered to settle the action against it on the basis that the action and all cross claims be dismissed, and if accepted within 90 days, the dismissal would be on a without costs basis. On March 13, 2023, both WTH and Murray delivered an offer to settle on the basis that the actions and cross claims against them be dismissed, and if the offer were accepted within thirty days, the dismissal would be without costs. If the offers were accepted after 90 and 30 days respectively, the dismissal would be a with costs dismissal. At other times, WTH and Murray offered to contribute 50% of a nominal settlement of the plaintiff’s claims.

[45] The dismissal offers were made as r. 49 offers, but in my view, it is only within the 90 and 30 day period after the offers were made that there existed offers that were better than the moving parties’ result on the motion. However, the moving parties have obtained a result as good as or better than their offer. The offers are appropriate considerations under r. 49.10 and 49.13. I note that WTH has filed a bill of costs seeking costs of the action on a partial indemnity scale up to March 13, 2023, and substantial indemnity costs thereafter. In view of that fact, I will treat March 13, 2023 as the date after which WTH is entitled to substantial indemnity costs.

[46] Murray seeks substantial indemnity costs, not just on the basis of his offer, but because he alleges that the action against him was an unnecessary duplication of proceedings. The liability of Murray and WTH is the same by virtue of the provisions of s. 192 of the HTA. Although Murray’s counsel made efforts to address evidentiary issues regarding Murray in the context of the action against WTH, including obtaining formal admissions and proposing a r. 31.10 examination of Murray, the separate action against Murray was commenced.

[47] I conclude that the action against Murray was not necessary in the circumstances, and substantial indemnity costs of that action throughout are warranted.

[48] With respect to quantum, WTH’s bill of costs in respect of the motion supports partial indemnity costs of $15,808.08 and substantial indemnity costs of $20,565.57. both amounts all inclusive. Its bill of costs in respect of the action supports partial indemnity fees up to March 13, 2023 and substantial indemnity costs thereafter of $13,549.79 all inclusive.

[49] Murray filed a single bill of costs which seeks substantial indemnity costs of $8,703.32, or alternatively, partial indemnity costs up to March 13, 2023 and substantial indemnity costs thereafter, in the amount of $6,650.26, both amounts all inclusive.

[50] With respect to the appropriate quantum of costs, I note the following:

a. Counsel’s hourly rate is reasonable, and the time spent is also reasonable;

b. Plaintiff’s counsel’s agent sought to cross-examine two of the moving parties’ witnesses, Tamara Kirschner and the manager from WTH’s agent, although it is not clear why either of their evidence was in issue. The day before the scheduled examinations, the agent called to cancel the examinations, leading to costs thrown away;

c. The responding parties did not take unreasonable positions on the summary judgment motion. They were not successful, but there was nothing improper in advancing the positions they advanced;

d. The plaintiff’s partial indemnity costs on the motion, exclusive of disbursements, are $15,676.49. The plaintiff filed no evidence on the motion, but only a factum;

e. Royal’s costs outline discloses partial indemnity costs on the motion, exclusive of disbursements of $10,234.41. Royal filed an affidavit and a factum;

f. The moving parties bore the responsibility (as moving parties usually do) for the bulk of the evidentiary record.

[51] In these circumstances, I have no hesitation in concluding that the costs sought by both moving parties are fair and reasonable. Their collective costs of the action, including the motion, are barely more than the plaintiff’s costs of the motion, when the plaintiff filed no evidence. The moving parties’ costs are well within the reasonable expectations of the unsuccessful parties.

[52] Accordingly, I make the following orders:

a. The moving parties’ motions are granted;

b. The claims and cross-claims against WTH are dismissed;

c. The action against Murray is dismissed;

d. Royal and the plaintiff are jointly and severally liable to pay costs to WTH and the plaintiff is liable to pay costs to Murray as follows:

i. To Murray, $8,703.32 all inclusive within thirty days;

ii. To WTH, $13,549.79 all inclusive within thirty days.

J.T. Akbarali J.

Date: June 3, 2024

ADDENDUM

[53] On releasing these reasons, counsel for WTH and Murray enquired about my inadvertent failure to address the costs of the motion claimed by WTH. She is correct that I addressed only the costs of the motion, and omitted my determination of WTH’s costs of the action. I address that omission in this addendum.

[54] Given the factors I enunciated above, WTH’s costs of the motion are within the reasonable expectations of the defendants, in particular since it was WTH that adduced the bulk of the evidence.

[55] Accordingly, I order that the Royal and the plaintiff are jointly and severally liable to pay costs to WTH as set out above in para. 52(d) and jointly and severally liable to pay costs of the action to WTH, fixed at $20,565.57 within thirty days.

Date: June 3, 2024