Fridays with Rogers Partners

At our weekly meeting, Emmanuel Couture-Tremblay discussed the recent decision of the Ontario Superior Court of Justice in Co-operators General Insurance v. Doobay, 2023 ONSC 4075.

Overview

This costs hearing followed an action that involved two claims, one where the insurer claimed the return of benefits paid, plus damages, and one where the insured claimed income replacement benefits and other statutory accident benefits.

Background

There were two claims tried in this case. In one claim, Co-operators General Insurance Company claimed the return of benefits paid, plus punitive and exemplary damages against the defendant, Bagwandat (Ron) Doobay. In the other claim, Mr. Doobay, as plaintiff, claimed income replacement benefits and other statutory accident benefits from Co-operators.

At trial, the jury found that Mr. Doobay was not catastrophically impaired and was not entitled to income replacement benefits. Co-operators was awarded $52,499.58 for repayment of benefits and $7,500.42 for punitive damages.

This hearing dealt with costs. Co-operators argued that it was entitled to costs of the proceeding on a partial indemnity basis up to the date an offer to settle was made and on a substantial indemnity basis afterwards. Mr. Doobay argued that the costs award should be limited given his limited financial means.

Plaintiff’s Limited Funds

In Kesete v. Gaspar, 2022 ONSC 6860, it was noted that in Baines v. Hehar, 2013 ONSC 849, the court had held there was no utility in making an award of costs against an unsuccessful plaintiff who did not have the financial ability to pay an award of costs. In Nassab (Litigation Guardian of) v. Erinoakkids, 2017 ONSC 2740, the court noted that the circumstances in which the inability of a party to pay costs may be a relevant factor are rare.

In this case, the plaintiff owned a rental property and a home. The plaintiff also had adverse cost insurance.

Law

Section 131 of the Courts of Justice Act states that, subject to the provisions of an Act or the rules of the court, costs are in the discretion of the court. The judge may consider the result of the trial, any offers to settle, and the factors enumerated in Rule 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.

Case law states that costs must be fair and reasonable (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA); Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA)).

Offers to Settle

On February 22nd, 2023, Co-operators made a Rule 49 offer to settle the two proceedings on the basis of a payment of $10,005.00. There were also attempts to resolve the claim during the course of the trial. Co-operators offered $50,000 which was rejected by Mr. Doobay.

Co-operators, as a plaintiff, was awarded $60,000. In the normal course, Co-operators, as plaintiff, would be entitled to costs on a substantial indemnity basis from the date of the initial offer.

An offer to settle by a plaintiff that is less than the amount awarded at trial entitles the plaintiff to substantial indemnity costs from the date the offer was made: rule 49.10(1). On that basis, Co-operators is entitled to costs on a substantial damage basis for the trial of that action.

For an offer to settle by a defendant, if the plaintiff recovers less than the defendant offered, this results in the defendant obtaining partial indemnity costs from the date the offer was made: rule 49.10 (b). A defendant is not entitled to more than partial indemnity costs.

Mr. Doobay’s claim as plaintiff was deemed meritless. His evidence was rejected by the jury as he was not a credible witness. For example, he refused to acknowledge that he was the person identified in a surveillance video, he claimed that his withered arm was as a result of the subject accident when it was really a pre-existing condition, and he claimed to have a severely limited ability to engage in any activities when the opposite was found during surveillance.

Of the total trial days (19 days), Co-operators, as plaintiff and defendant, used 5 days for its evidence, for which it was awarded substantial indemnity. Substantial indemnity was also awarded for the preparation time after the offer to settle was made, amounting to 5 days.

The judge stated that this was a straightforward credibility case, and that the plaintiff had no credibility. Costs were not awarded to Co-operators for the years before the claims were issued.

Quantum of Costs

Mr. Doobay did not provide a Bill of Costs or challenge the amount claimed. He instead argued that he could not pay Co-operators’ costs.

A quantum of $3,000.00 was allowed for pleadings on a partial indemnity basis. The legal fees up to the initial offer to settle were fixed at 65% of full indemnity costs, amounting to $13,000.

The defendant’s counsel spent 60 hours for trial preparation, 75% of that time being fixed at the partial indemnity rate and 25% at the substantial indemnity rate. Therefore, the quantum of $14,234 was fixed for this pre-trial preparation.

The per diem for trial time was set at 10 hours per day for 20 days. The partial indemnity rate was fixed at $2,500 per day for 15 days and at $3,500 per day on a substantial indemnity basis for 5 days for a total of $55,000. Co-operators disbursements were set at $39,100, excluding the arbitration disbursements.

As such, Co-operators was entitled to its fees of $96,300, plus disbursements of $39,100 for a total of $135,400.

Mr. Doobay purchased adverse cost insurance, which provides coverage of up to $100,000. The judge did not address whether Co-operators has any rights to the proceeds because Mr. Doobay concedes and consents that the $100,000 under the Policy should be paid to Co-operators.

Seeing as the plaintiff’s insurer had no notice of this hearing, no determination was made as to whether the insurer is obligated to pay. Based on Mr. Doobay’s consent, any proceeds that are payable to Mr. Doobay shall be paid to the Co-operators.

Takeaway

This decision provides insight in how the courts assess costs. The costs are within the court’s discretion, but the decision must be fair and reasonable. The court may consider the result of the trial, any offers to settle, the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Whether a party’s inability to pay the costs, or whether they obtained adverse cost insurance, will be considered in the costs assessment on a case-by-case basis.