Bishop-Gittens v. Lim, CV-11-00107056-0000

In considering the issue of costs, factors taken into account include: 1) the rates charged and the hours spent by the plaintiff’s counsel; 2) the amount claimed and the amount recovered by the plaintiff; 3) the complexity of the proceeding and the importance of the issues; 4) the conduct of any party that tended to shorten or lengthen the proceeding; 5) whether the action should have been brought under the simplified rules pursuant to Rule 76; and 6) the reasonableness of the costs.

Heard August 2, 2016  | Reasons [OTLA Document Bank]

This action arose out of the injuries sustained by the Plaintiff as a result of a motor vehicle accident. At trial, the jury awarded the Plaintiff $40,000 in general damages. No amounts were awarded for loss of competitive advantage or for loss of income. Subsequently, the parties attended before Justice McKelvey with respect to the issue of costs. The parties agreed that the Plaintiff was successful and is therefore, presumptively, entitled to her costs. No offers were made by either party that would trigger any costs consequences under the rules.

In considering the issue of costs, Justice McKelvey took various factors set out in Rule 57.01 into account: 1) the rates charged and the hours spent by the plaintiff’s counsel; 2) the amount claimed and the amount recovered by the plaintiff; 3) the complexity of the proceeding and the importance of the issues; 4) the conduct of any party that tended to shorten or lengthen the proceeding; 5) whether the action should have been brought under the simplified rules pursuant to Rule 76.

Justice McKelvey accepted the defence position that some adjustment needed to be made to reduce counsel fees based upon what was perceived to be an excessive number of hours docketed on the file. Justice McKelvey also noted that the jury awarded the Plaintiff $40,000, which was within the jurisdiction of the simplified rules; however, he accepted that it was reasonable to start and continue the action under the regular rules as the Plaintiff could not predict how the jury would respond to the evidence. A substantial claim was advanced and there was at least some evidence to support it.

The Plaintiff also sought a remediation penalty of $50,000 because of an alleged breach by Aviva of its obligation under s. 258.5 of the Insurance Act to attempt to settle the claim as expeditiously as possible. The Plaintiff argued that Aviva took a hard-nosed position and placed the case in their threshold-defensible program and made no settlement offers. The Rule 49 offer was a dismissal without costs. Justice McKelvey had difficulty with this argument and noted that Aviva did participate in mediation and the defendant offered a dismissal without costs. Justice McKelvey did not find this position to be unreasonable as the jury also rejected all the pecuniary loss claims and provided an award of general damages well below what the Plaintiff submitted to the jury was reasonable. Nevertheless, Justice McKelvey stated that “a case like this should serve as a reminder to the insurers like Aviva of their obligation to abide by section 258.5 of the Insurance Act.”

The final principle Justice McKelvey considered is that of reasonableness. As noted in Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (C.A.), “the 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.”

Taking all the aforementioned factors into account, Justice McKelvey concluded that the Plaintiff is entitled to its partial indemnity costs in the sum of $120,000 plus HST, plus disbursements.

Read the full decision in the OTLA Document Bank
Einav Shlomovitz
Written by

Einav practices exclusively in civil litigation. Her practice focuses on motor vehicle accident, accident benefits, occupier’s liability, slip/trip and falls, dog bites, medical malpractice, solicitor negligence, class action, employment and sexual assault claims.

During her free time, Einav takes improv and Spanish lessons. She enjoys being active, traveling, and spending time with family and friends.