Full Decision
Plaintiff counsel: John W. Wowk at Wallbridge, Wallbridge
Defence counsel: Robert K. McCartney
The court ordered costs for the plaintiffs on a substantial indemnity basis following their successful motion against the defendant, Aviva Insurance Company.
In the initial motion, Lambert v. Maracle, 2019 ONSC 7003, previously summarized here, Aviva’s affidavit of documents and argued that it was deficient and incomplete as it had failed to include highly relevant documents. Aviva had attempted to rely on the fact that it had served its affidavit of documents first in order to assert their right to conduct the examination for discovery of the plaintiff first. Justice Macleod-Beliveau found in favour of the plaintiffs. She found that the defendant’s affidavit of documents was incomplete and therefore struck Aviva’s notice of examination.
In the cost submissions. the plaintiffs argued that costs should be on a substantial indemnity basis due to the importance of fair and fulsome disclosure, the fact that the defendant had knowingly omitted witness statements and documents and had delayed serving their sworn affidavit of documents for approximately two years as a tactic to try and claim priority in examinations for discovery.
The defendant argued that costs should only be awarded on a partial indemnity basis and that no costs should be awarded for any travel related expenses despite the fact that plaintiffs’ counsel had travelled from New Liskeard to Belleville to argue the motion (approximately 600 km).
Justice MacLeod-Beliveau agreed with the plaintiffs and awarded costs on a substantial indemnity basis. In her prior decision on the motion, she had concluded that Aviva had failed to comply with the basic discovery rules and had found that they had done so for a tactical purpose to be able to examine for discovery first in a case where liability was a seriously contested issue. In the costs decision, her Honour stated:
[13] This tactic of swearing and serving an inappropriate and deficient affidavit of documents must be clearly condemned by the court as being completely inappropriate. Lack of disclosure of documents strikes at the very foundation of the integrity of our civil litigation system designed to ensure parties have all the relevant evidence in relation to their case at an early stage in the proceedings.
Her Honour further stated that substantial indemnity costs in this exceptional case should reflect the courts “admonishment” of Aviva’s tactics and serve as a “chastisement” for its conduct.
Lastly, Justice MacLeod-Beliveau rejected Aviva’s submission regarding travel costs. She found that litigant’s choice of counsel should be respected and not limited by proximity of their counsel’s place of business to the court house. She found that counsel in this case should be awarded costs for their travel time and expenses (approximately $3,000).
The plaintiffs had claimed $10,177.05 in costs on a substantial indemnity basis. Justice MacLeod-Beliveau ordered that $10,000 was a fair and reasonable amount to be paid by the defendants.
