COURT FILE NO.: Beach v. Royal and SunAlliance Insurance Company, 2026 ONSC 4901
COURT FILE NO.: CV-15-53830
DATE: August 26, 2026
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Christopher Beach, Plaintiff
- and -
Royal and SunAlliance Insurance Company, Defendant
BEFORE: MacNeil J.
COUNSEL: James A. Scarfone and Jacob Sazio – Lawyers for the Plaintiff
Vanda A. Santini – Lawyer for the Defendant
REASONS FOR DECISION ON COSTS
[1] This is my decision on costs as it relates to three motions brought by the parties in this proceeding (collectively, “the Motions”).
[2] Motion #1, dated December 13, 2017, was made by the plaintiff seeking an order to compel the defendant to deliver a further and better affidavit of documents, to provide answers to outstanding undertakings and refusals, and to reattend for examination for discovery. The motion was eventually abandoned.
[3] Motion #2, dated May 16, 2019, was made by the plaintiff and primarily focused on challenging the defendant’s claim of litigation privilege over documents the plaintiff wanted produced. The defendant was the successful party on that motion.
[4] Motion #3, dated November 25, 2019, was made by the defendant seeking an order for the fulfilment of certain undertakings and refusals made by the plaintiff at his examination for discovery. In my decision on that motion, I commented that, in my view, success had been divided but still gave the parties the opportunity to make costs submissions.
General Principles
[5] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an award of costs is in the discretion of the court.
[6] Rule 57.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that, when the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. Tariff A establishes the fees and disbursements that are allowable under Rules 57.01 and 58.05.
[7] Rule 57.01(1) sets out factors to be considered by the court in exercising its discretion to award costs, including:
the result in the proceeding;
any offer to settle or to contribute made in writing;
the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
the amount claimed and the amount recovered in the proceeding;
the complexity of the proceeding;
the importance of the issues;
the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
whether any step in the proceeding was: (i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
a party’s denial of or refusal to admit anything that should have been admitted; and
any other matter relevant to the question of costs.
[8] Rule 1.04(1.1) provides that, in applying the rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[9] Modern costs rules are designed to advance five main purposes: (1) to indemnify successful litigants for the cost of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants; and (5) to encourage settlements: Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 128 O.A.C. 2 (Ont. C.A.), at para. 22; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10.
[10] Ultimately, in fixing costs, the primary principles remain fairness, reasonableness and proportionality.
[11] As stated by the Ontario Court of Appeal in Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” (See also Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), 2002 CarswellOnt 4020, [2002] O.J. No. 4495 (Ont. C.A.), at para. 4.)
[12] Rule 57.03(1)(a) provides that, on the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall fix the costs of the motion and order them to be paid within 30 days.
[13] Rule 37.09(3) states that where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.
Position of the Defendant
[14] The defendant submitted a detailed Costs Outline setting out its costs incurred with respect to the Motions in the amount of $47,225.58 in fees (inclusive of HST) and $3,891.33 in disbursements, for a total of $51,116.91.
[15] With respect to Motion #1, specifically, the defendant submits that there was unnecessary duplication in the relief sought between Motions #1 and 2. The defendant delivered responding materials to defend Motion #1. The plaintiff ultimately abandoned Motion #1 on the eve of the hearing date. The defendant submits that it is entitled to its costs for Motion #1 under Rule 37.09(3).
[16] With respect to Motion #2, the defendant submits that this was a complicated motion as the claim for litigation privilege is fact-driven and the law of litigation privilege is complex. To discharge its onus, the defendant prepared and submitted extensive and detailed affidavit materials to support its claim for litigation privilege as the claims handling proceeded. The defendant was wholly successful on this motion in defending its asserted litigation privilege date and succeeded in upholding litigation privilege for 25 out of 33 of its inspected Schedule B documents.
[17] With respect to Motion #3, the defendant submits that it was successful in obtaining an order for the continued examination of the plaintiff and production of a further and better affidavit of documents and itemized Schedule B. This motion should not have been necessary in light of the parties’ obligations under the Rules of Civil Procedure. It was only after Motion #3 was served that the plaintiff delivered answers to undertakings and productions. The plaintiff continued to deliver productions up to the day prior to the motion hearing date. In its ruling, the court commented that there was divided success on the motion. The defendant submits that the parties should each bear their own costs of Motion #3.
[18] On February 20, 2020, the defendant proposed to settle the Motions on terms and a without costs withdrawal of all motions. After the release of the decision in Motion #2, the defendant made a further proposal to settle the Motions on terms and payment of $20,000 in costs. Both proposals were rejected by the plaintiff. The defendant submits it was more successful than its settlement proposals.
[19] The defendant contends that this action involves a complicated first-party insurance claim and that the legal work undertaken was justifiable given that the plaintiff claims damages of $4,750,000. Its motion materials were reasonable. As it relates to the litigation privilege motion, the defendant had to address the facts and evidence for each circumstance supporting litigation privilege dates, as the claims handling evolved, in the event that the initial proposed date was not accepted by the court. The court ultimately did accept the defendant’s proposed litigation privilege date. The Motions were labour-intensive, involving multiple court attendances, cross-examinations, and addressing numerous substantive and procedural issues. The defendant’s costs are reasonable, warranted, and proportional. Costs should follow the event.
Position of the Plaintiff
[20] It is the position of the plaintiff that, in context, no party was clearly successful on the Motions and that the costs of same should be reserved to the trial judge. Alternatively, the parties should bear their own costs. In the further alternative, the amount sought by the defendant is excessive and, if costs are awarded, the award should be in the range of $5,000 to $10,000.
[21] The plaintiff submits that the three Motions were “inextricably intertwined”. The defendant was ordered to produce documents over which it claimed privilege. The defendant did not obtain all of the relief requested on its motion. It is impractical, if not impossible, to allocate time between the issues. There was one cross-examination of each witness by the opposing party that addressed all of the Motions. The motion materials were used in the other motions.
[22] The plaintiff argues that Motion #1 was not “truly abandoned” but was subsumed by Motion #2. Parties should not be penalized for narrowing the issues. Undertakings were answered after Motion #1 was made, so a hearing was ultimately unnecessary. Very little time was dedicated to it.
[23] The plaintiff submits that the approach taken in Fincantieri v. Anmar Energy, 2015 ONSC 2395, would be appropriate to apply in the present circumstances. In that case, the main issue to be decided was whether a settlement agreement and release had to be produced by the defendant. There had initially been two motions made, one by each of the parties, seeking answers to undertakings and refusals. By the time the motions were heard, only the one issue remained outstanding. The court ordered the costs of both motions to be in the cause. Fincantieri was followed in Dunning v. Colliers Macaulay Nicolls Inc., 2021 ONSC 6795, where there was also divided success in producing additional documents, and the motion costs were ordered to be in the cause.
[24] The plaintiff argues that the defendant’s materials were excessive and that it filed extraneous materials for relatively simple motions. It is not fair and reasonable to expect the opposing party to pay for such excessive materials. The plaintiff further contends that the defendant’s Costs Outline appears to include time for everyday handling of the file, not necessarily work specific to the Motions.
[25] The plaintiff disputes that the defendant achieved a more favourable result to their February 20, 2020 offer. The defendant did not obtain the documents sought in that offer, specifically the tax returns, phone records and oral communications between counsel and witnesses. The plaintiff had offered some of these documents in its own offer to settle, dated February 13, 2020. Further, the plaintiff had offered to settle the Motions on June 29, 2022, offering more than the defendant received.
[26] The plaintiff did not submit any costs outline or bill of costs for the court’s review.
Analysis
[27] With respect to the plaintiff’s request that costs be reserved to the trial judge, I decline to order this. There are no compelling reasons for me, as the motions judge, not to determine the costs of the Motions at this time. As the predominantly successful party, the defendant is presumptively entitled to costs. Its success was not so nominal that it is appropriate to make costs in the cause or reserve them. The defendant should not have to wait longer to receive a costs determination, especially since this action may not get to trial in as timely a manner as the parties hope (it has taken more than 7 years for the parties to complete the Motions).
[28] With respect to the case Fincantieri, as cited by the plaintiff, in that case Master MacLeod held that the costs of both motions before that court should be costs in the cause and dealt with by the trial judge as it was not clear that either of the parties “won” the motions but if one of the parties is successful in the action, then they should have the opportunity to persuade the trial judge that the motions were necessary and costs should be awarded. Here, I find that it is clear that the defendant was the more successful party on the Motions. There is no ambiguity like was found in Fincantieri.
[29] In the other case relied on by the plaintiff, Dunning, the court was dealing with the issue of costs on a motion where it found that success had been divided. Given that, Associate Justice McGraw concluded that the trial judge would be in a better position to gauge the reasonableness and necessity of that plaintiff’s motion and the parties’ conduct and assess costs on a complete record. Again, here, there is no ambiguity as to the necessity or reasonableness of the Motions.
[30] Therefore, I will order costs of the Motions at this stage of the proceeding, as I am not satisfied that a different order would be more just (Rule 57.03(1)(a)).
[31] It is noted that the Costs Outline submitted by the defendant includes the time spent on Motion #3 in the $47,225.58 fees claimed. When that time is removed, the fees amount claimed for the remaining two Motions is $41,113.75.
[32] I agree with the plaintiff’s submission that the court’s determination should focus on costs clearly identifiable to the Motions themselves and not include fees for legal work done for general handling of the file. So, I have removed those fees in the amount of $8,258.76 from the equation and the fees claimed at issue now total $32,854.99.
[33] The plaintiff’s motion dealing with the issue of privilege, Motion #2, was the first motion heard. The defendant’s motion, Motion #3, respecting the fulfilment of undertakings and refusals from the plaintiff was the second to be heard. At the hearing of the second motion, counsel for the plaintiff confirmed that the plaintiff was abandoning Motion #1, wherein he had sought an order for the defendant’s delivery of a further and better affidavit of documents and provision of answers to outstanding undertakings.
[34] Regarding Motion #2, I accept the defendant’s submission that this was a significant motion as it related to the plaintiff’s request for documents over which the defendant claimed privilege. The defendant prepared and filed extensive responding materials in defending against this motion. In my view, the steps taken by the defendant and its filed materials were not improperly excessive. The defendant was ultimately successful in defending its asserted litigation privilege date. In reviewing the defendant’s Costs Outline, I find the hourly rates to be reasonable. However, some of the legal work claimed is duplicative as between the senior lawyer and the junior lawyer; and it was the senior lawyer alone who argued the motion at the hearing. Accordingly, I have reduced the hours to account for this. All things considered, I find that a fair and reasonable amount of costs to award the defendant is $15,000.00, all inclusive.
[35] Regarding Motion #1, while the plaintiff argues that it was not truly abandoned but rather subsumed within Motion #2, until the motion was formally abandoned, it was a separate, discrete motion which the defendant had to address. I accept the plaintiff’s submission that many of the defendant’s undertakings were answered only after the motion was served, thereby showing it to be a necessary step and disentitling the defendant to its full costs since it had an ongoing obligation to answer its undertakings. However, the motion also sought answers to refusals given at the examination for discovery of Susan Griffin to which the defendant had to respond. In light of this, in my view, the defendant ought to be entitled to some of its costs claimed for Motion #1. I find that a fair and reasonable amount of costs to award the defendant in these circumstances is $2,000.00, all inclusive.
[36] Regarding Motion #3, my view that success was divided on that motion has not changed. Accordingly, I order that each party shall bear their own costs.
[37] I find the disbursements claimed by the defendant to be reasonable and necessarily incurred for the purpose of the Motions, and so they should be paid by the plaintiff.
Disposition
[38] Having regard to all of the above-noted factors, and considering the balancing exercise required under Rule 57.01 and the guidance provided by the Boucher decision of the Ontario Court of Appeal, I find that it is fair, reasonable and proportionate to order that the plaintiff shall pay to the defendant costs of Motions #1 and 2 fixed in the amount of $20,891.33, all inclusive, payable within 30 days; and that the parties shall each bear their own costs of Motion #3.
____________________________
MacNEIL J.
Released: August 26, 2026