Selleck v. Stanutz (Estate) et al., 2026 ONSC 4219
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lindsay Selleck and Sally Selleck, Plaintiffs
AND:
The Estate of Timothy J. Stanutz, by his estate trustee, Sandy Stanutz, Grenville Mutual Insurance Company, the dominion of Canada general insurance company and certas homje and auto insurance company, Defendants
BEFORE: C. MacLeod RSJ
COUNSEL: Joseph Obagi and Sarah E. Russell, for the Plaintiffs
K Bruce Chambers, for the Defendants
HEARD: April 17, 2026
Endorsement
1On April 17, 2026 I gave partial judgment in this matter. (See 2026 ONSC 2313) I found that the parties had entered into a binding agreement requiring the defendant to pay $1,195,100.00. plus additional costs of the action incurred from June 21, 2021 to the date of acceptance “on a substantial indemnity basis”.1 It remains for the court to fix the amount of the costs. I must also deal with the claim for interest and the costs of the appearance on April 17, 2026.
2In my view it makes no difference whether the appearance on April 17th is regarded as a trial date or as a motion. The objective of the hearing was to determine all remaining issues between the parties, and the defendants could not be taken by surprize by the issues of interest and costs. The trial date was fixed prior to the settlement. When the matter was removed from the trial list, counsel asked to appear before the court to deal with the outstanding issues. The purpose of the hearing was never in doubt.
Interest on the Settlement Amount
3Turning firstly to the question of interest, in my view interest should be payable on the settlement. The offer was accepted unequivocally on December 22, 2025 and the plaintiff delivered a release. It is normal for a brief period of time to elapse between settlement and payment. Even when funds are delivered, they are commonly held in escrow until steps such as approval, dismissal of the action or signing of a release take place. In such cases there is usually no claim for interest.
4Interest should be paid, however, if there is a substantial delay between settlement and payment. In this case, it took a ruling and a court order to have the settlement funds released. In those circumstances, interest should be paid from the date of the settlement until the date of payment.2 Conceptually, this is post-judgment interest awarded as if the judgment had been given on the date of the settlement. It will run from the date of the settlement until the settlement funds are (or were) paid.
5The plaintiffs argue for a rate of interest equivalent to the plaintiff’s carrying costs for their litigation loan. The rate was known to the defendant because plaintiff’’s counsel had advised of this fact when requesting an advance payment. The rate disclosed to the defendants was 19.9%. which was the borrowing rate for the Bridgepoint litigation loan at that time. The advance payment was denied. That claim for interest during the intervening period (when litigation loans were used in the absence of an advance payment) would have been included in the settlement itself. No further claim for interest up to the settlement date is sought.3
6The plaintiffs, however, argue that this higher rate should be used when calculating the interest due on the settlement funds. To do otherwise, rewards the defendant for delaying payment and penalizes the plaintiffs by eroding the value of the settlement. I agree with this analysis. The court has discretion in setting the interest rate to avoid unfairness and to reach a just result.4
7On the other hand, the litigation loans were not for the full amount of the settlement. All of these loans were advanced after the date of the offer to settle and for loans incurred after 2023, the interest rate actually rose to 21.9%. Interest also compounded semi annually. The principal borrowed was $129,152.75. Even with accrued and compounded interest, the balance owing as of March 13, 2026 was $212,222.39 and the per diem rate was $115.38. At its highest, this amount is less than 18% of the settlement.
8I am only dealing with interest from December 22, 2025 until the date of payment. It seems that a fair outcome would be to require interest at 19.9% on the sum of $200,000.00 and interest at the Courts of Justice Act, post judgment interest rate, which would have been 3% in December of 2025, on the balance and I so order.
9I expect the parties can do the math.
Costs of the Action
10The settlement agreement included an amount for costs up to June 21, 2021 in the amount of $150,000.00 for fees, $22,500.00 for HST on fees, and $22,600.00 for disbursements (inclusive of HST).
11In addition, the agreement provided for additional costs from the date of the offer to the date of acceptance (that is from June 21, 2021 to December 22, 2025) on a substantial indemnity basis. It is necessary to quantify this amount.
12The plaintiff is seeking the sum of $297,101.62 comprised of $183,862.80 for fees and the balance being disbursements and HST. I have reviewed the bill of costs. I would not take issue with the disbursements, given that the action was on the eve of trial.
13A portion of the fees involved proceeding at the LAT and the Grenville summary judgment motion. I would allow these because both were necessary to pursuing the action and the LAT proceeding was necessary as the accident benefits must be taken into account in the tort action. Approximately $5,303.25 in fees related to negotiations and discussions with Bridgepoint in relation to the litigation loans. I would not allow that amount. Consequently, I would reduce the substantial indemnity amount for fees to $178,559.55 and the HST would be reduced accordingly.
14Again, I anticipate the parties can do the math.
Costs of the Day
15The plaintiff seeks costs of the hearing on April 17th, 2026. There is no doubt that my ruling is closer to the position of the plaintiff than that of the defendants. Accordingly, the plaintiff is entitled to costs. The plaintiff seeks costs of $17,500.00 on a substantial indemnity scale.
16Despite the agreement to pay costs from the date of the offer to the date of trial at the elevated scale, costs of the day remain discretionary. The overarching principle is reasonableness. 5I do not consider that substantial indemnity costs are appropriate and instead I award costs of the motion or trial on a partial indemnity scale.
17Considerable work was required to put the record before the court, to research the law and to present the matter. I do not consider the costs actually incurred to be inflated or extreme. The plaintiff shall have costs of the day fixed at $11,000.00.
Justice C. MacLeod
Date: April 17, 2026
Footnotes
- See Olivieri v. Sherman, 2007 ONCA 491 with respect to settlement forming a binding and enforceable contract.
- G.M. v. Alter,
- For a case in which the cost of litigation loans was awarded, see Drennan v. Drennan, 2024 ONSC 3905 and in the context of motor vehicle litigation see Stewart et al. v. Wood et al., 2019 ONSC 3931
- Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615
- Wilkinson-Moore v. United Floors, 2019 ONSC 3711