Estate Planning

Cost Award for Successful Motion for Summary Judgment

By Hull & Hull LLP

Successful motions for summary judgment are rare occurrences, and any guidance on costs awards is welcome.  Justice Mesbur's costs endorsement in the personal injury case Asmassu v. John (2009), 2009 CanLII 58579 (On S.C.) is a straightforward application of costs principles on a successful motion for summary judgment by co-defendants.   

This motion arose in a claim that was one of a series of lawsuits by the plaintiff against the co-defendants, all arising out of the same set of facts.  As the pleadings disclosed no reasonable cause of action, in that context, the proceeding amounted to an abuse of process.  The claim included allegations of serious professional conduct and the relief sought included damages of $50 million.  As Justice Mesbur wrote,

"He cannot make claims like this without expecting that they will be vigorously defended, with significant costs being incurred as a result.  Given the level of the claim, the importance of the issues to the parties, and all the other factors enumerated under the rules, I am of the view that the amounts claimed for costs are fit and just in all the circumstances."

Justice Mesbur awarded the full partial indemnity costs claimed by both co-defendants.  The hospital's solicitors had reduced their partial indemnity rates from $32,000 to $20,000, and Justice Mesbur emphasized this reduction in awarding the full $20,000.  The doctor's solicitor was awarded claimed partial indemnity costs of $10,393.35, lower than the hospital since the hospital's solicitor had made most of the submissions.    

Have a great day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

Full post as published by Toronto Estate Law Blog on November 04, 2009 (boomark / email).