The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/54029
Law Times • march 22, 2010 NEWS Judge orders $75,000 in costs on $5,000 award to plaintiff Court makes unusual cost award in insurance case H BY JULIUS MELNITZER For Law Times ere's an unlikely sce- nario: in a case in which a jury awards $5,000 to a plaintiff on a $22,000 theft claim on an in- surance policy, the defendant off ers $300 for costs, but the judge instead increases that amount to $75,000. Th at's what happened re- cently in Sandra Bonaiuto v. Pilot Insurance Co., a case that demonstrates the strange results that a combination of punitive damage claims countered by a fraud allega- tion can produce. It also rais- es the spectre of whether in- surers are approaching these types of claims in the most cost-eff ective way at a time when the public is angry about increased property and car insurance premiums. Th e case arose when San- dra Bonaiuto claimed about $22,000 on her policy for theft and damage to her car and ste- reo equipment. Pilot countered with an allegation of fraud, which it pursued vigorously without making a settlement off er of any kind. Not long be- fore trial, however, the plaintiff off ered to settle the case for $15,000, inclusive of interest and costs. At the outset of the weeklong trial, defence counsel Mark El- kin of Toronto's Th ompson Tooze McLean & Elkin named a number of witnesses in his opening statement to the jury and indicated that he intended to call them to testify on the fraud issue. But he called only one witness, whose evidence the trial judge subsequently de- scribed as "thin" on the fraud matter. Th e only other evidence of fraud was circumstantial and related largely to the plaintiff 's fi nancial circumstances. Th e jury returned a $5,000 verdict for the plaintiff , well short of the claim, and declined to award punitive damages. Shane Katz of Singer Kwinter, who represented Bonaiuto, pre- sented two bills of costs: one for $75,923 on a substantial in- demnity basis and one totalling $54,403 on a partial indemnity basis. He rejected an off er of $300 for costs from Elkin. Elkin submitted the plaintiff wasn't entitled to any costs as the case should have proceeded either under the jurisdiction of the Small Claims Court or un- der the simplifi ed procedure. He also argued the plaintiff 's bill was disproportionate to the recovery. But Ontario Superior Court Justice Alison Harvison Young, the trial judge, held that the plaintiff was entitled to costs on a substantial indemnity basis. To begin with, the defen- dant was unsuccessful in its fraud allegation. "Despite the paucity of evi- dence of fraud [apart from the and proceed to trial." At the same time, while costs had to be fair and rea- sonable, the mere fact that they exceeded the damages didn't render such an award inappropriate. After lawyer Shane Katz rejected the $300 cost offer from the defendant, the judge awarded $75,000. circumstantial evidence], the defendant asserted the fraud claim vigorously and made no attempts to settle the litiga- tion," Harvison Young noted. It was also signifi cant that the plaintiff made what Harvi- son Young called a "reasonable" settlement off er of $15,000. "While, as it turned out, this off er was more than the amount received by the plain- tiff at trial, the plaintiff did show a willingness to settle for a reasonable amount if [a] rea- sonable off er was made," Har- vison Young wrote. "None was forthcoming. As the plaintiff submits, the absence of any off er to settle, particularly in light of the allegation of fraud, left her with little choice but to continue with litigation As for the defendant's ju- risdictional argument, rule 57.05 of the Rules of Civil Procedure gave the court discretion as to costs in the event a recovery fell within the monetary jurisdiction of the Small Claims Court. But this was a case, Harvison Young noted, "in which the plaintiff had a case which the jury could have believed and that would have fallen within the jurisdiction of the ordinary procedure." Finally, Harvison Young ruled the costs claim wasn't excessive despite the defen- dant's submissions that the weeklong trial was a "short one" and that costs should be mini- mal. Th e action took almost six years to get to trial, and the defendant examined both the plaintiff and her husband. "As I have noted above, the position taken by the defen- dant made the decision to press on to trial reasonable," Harvi- son Young concluded. "I also note that the defendant did not submit a bill of costs and, accordingly, the court has no way of knowing what costs it would have sought had it been successful." Th e decision will please the plaintiff 's bar. It suggests that in the event of what a judge de- termines to be an intransigent defence position and allega- tions of fraud, plaintiff s will still be able to recover costs on a substantial indemnity basis de- spite a minimal award and the outright rejection of a punitive damages claim. In other words, the fact that the jury didn't accept the plaintiff 's claim of egregious conduct won't nec- essarily preclude an award of substantial indemnity costs in $3.55 • Vol. 17, No. 20 It's what's inside that counts! April 12 April 19 April 26 May 3 May 10 It's what's inside that counts! Covering Ontario's Legal Scene QUALITY DOCUMENT SCANNING Scan-to-File StorageLitigation Support/Archive • June 12, 2006 3 Strong Laws For Women 5 Climb Every Mountain 9 Focus On Real Estate Law year-old student Saad Khalid and who has prac- tised criminal law for over 25 years, says he saw no reference to a beheading in the synopsis the Crown provided to him. $3.55 • Vol. 17, No. 20 BY MARK BOURRIE For Law Times Clicquot champagne that a similarly named group of women's clothing claim by the makers of Veuve Court level.Mitchell B. Charness, an intel- Climb Every Mountain of Montreal-area restaurants to keep using Barbie in its name and design. The court also rejected a lectual property lawyer and partner 9 Focus On Real Estate Law that permitted a three-outlet chain Court of Appeal subsequently Federal Court, and the Federal On June 2, the Supreme Court of Canada ruled against toy-maker Mattel Inc., which had been appealing a lower court decision ior Canadian IP lawyers. Strong Laws For Women upheld the board's decision. The owners of Les Boutiques Cliquot were also successful at the Federal 5 representing companies that hold the rights to famous brands will have to prove a real connection between their marks and the prod- ucts of a company that infringes on the original trademark, say sen- the media is puffery," the lawyer said. "I'm not saying there's not a place for it, but it should have been done in a context that OTTAWA — Trademark lawyers Opposition Board of the Canadian In 2002, the Trade-marks house-style food. Barbie's Restaurant won at the consumer confusion with Mattel's dolls. Barbie's Restaurant has grown into a three-outlet chain in the Montreal area serving road- year-old student Saad Khalid and who has prac- tised criminal law for over 25 years, says he saw no reference to a beheading in the synopsis the Crown provided to him. the media is puffery," the lawyer said. "I'm not saying there's not a place for it, but it should have been done in a context that Upcoming Focus Highlights BY MARK BOURRIE For Law Times Clicquot champagne that a similarly named group of women's clothing claim by the makers of Veuve Court level.Mitchell B. Charness, an intel- were also successful at the Federal of Montreal-area restaurants to keep using Barbie in its name and design. The court also rejected a lectual property lawyer and partner that permitted a three-outlet chain Court of Appeal subsequently Federal Court, and the Federal On June 2, the Supreme Court of Canada ruled against toy-maker Mattel Inc., which had been appealing a lower court decision ior Canadian IP lawyers. upheld the board's decision. The owners of Les Boutiques Cliquot representing companies that hold the rights to famous brands will have to prove a real connection between their marks and the prod- ucts of a company that infringes on the original trademark, say sen- OTTAWA — Trademark lawyers Opposition Board of the Canadian In 2002, the Trade-marks house-style food. Barbie's Restaurant won at the since 1992 would not likely create consumer confusion with Mattel's dolls. Barbie's Restaurant has grown into a three-outlet chain in the Montreal area serving road- that its use of the "Barbie" name mark holder, it doesn't mean it's the end of protection of famous marks or that the famous mark holder can never stop anyone from using their trademark," Charness says. "What the cases mean is that we have to now look at how famous is the client's trademark and is there a connection or at least some possi- ble connection between the wares and services normally associated with the famous mark and whatev- Intellectual Property Office accept- ed Barbie's Restaurant's argument "It's not enough to just be famous. That's not going to carry er the third party is doing. See Fame, page 2 The Supreme Court says con- sumers won't confuse Barbie dolls for nachos and steaks served in a Quebec roadhouse restaurant with the same name. Photo: David W. Nees Ontario infringed on its trademark. Ottawa, says the decision does in Ridout & Maybee LLP in stores in Quebec and eastern famous brand. "If our client is a famous trade- not give small businesses a free rein to hitch their business to a www.lawtimesnews.com Upcoming Focus Highlights - Class Actions - ADR/Mediation - IT/Telecommunications Law - Personal Injury Law - Securities Law Informed, Intelligent Content To advertise in an upcoming issue of Law Times, contact our sales team: Kimberlee Pascoe To advertise in an upcoming issue of Law Times, contact our sales team: Karen Lorimer 905-713-4339 klorimer@clbmedia.ca Karen Lorimer 905-713-4339 Informed, Intelligent Content Karen Lorimer 905-713-4339 Klorimer@clbmedia.ca To advertise in an upcoming issue of Law Times, contact our sales team: kpascoe@clbmedia.ca Kimberlee Pascoe 905-713-4342 Kathy Liotta 905-713-4340 kliotta@clbmedia.ca Klorimer@clbmedia.ca Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca The Law of Contracts Sixth Edition Includes more than 4,000 cases A classic text, The Law of Contracts has been cited repeatedly by the courts, including the Supreme Court of Canada. This work looks beyond the surface rules of this complex area of law to identify the underlying conflicting principles, so you're never in doubt about their implications. The sixth edition has been revised and updated to incorporate all the latest developments in contract law. New! Twelve important Supreme Court of Canada cases are referenced as well as relevant provincial Court of Appeal and Superior Court cases. Hundreds of cases and issues are analyzed including: • English and commonwealth cases that could potentially affect Canadian jurisprudence • a number of issues in regards to: ORDER your copy today Hardbound • Approx. 800 pp. May 2010 • Approx. $165 P/C 0819010006 ISBN 978-088804-503-4 - Parol Evidence Rule - Tender Cases - Duty of Good Faith - Limitation of Liability Clauses - Notional Severance - Municipal Immunity from Contractual Liability - Specific Performance - Exemplary and Punitive Damages - Damages for Mental Distress for Breach of Contract Visit Law Times on the web at: www.lawtimesnews.om Visit Law Times on the web at: www.lawtimesnews.com Kathy Liotta 905-713-4340 kliotta@clbmedia.ca Rose Noonan 905-726-5444 rnoonan@clbmedia.ca Visit Law Times on the web at: www.lawtimesnews.om Rose Noonan 905-726-5444 rnoonan@clbmedia.ca Kathy Liotta 905-713-4340 kliotta@clbmedia.ca 905-713-4342 kpascoe@clbmedia.ca A top criminal lawyer, who spoke on condi- tion of anonymity, was of the same mind. "Blurting out the government's theory to ment not only from defence counsel, but also from any human being," he told Law Times. "I find the statement made [about the beheading] quite disturbing." "I would expect a far more responsible state- my way of doing business at such an early junc- ture in the proceedings," says Galati, who repre- sents another of the 17 accused. Arif Raza of Mississauga, who represents 19- the most experience in terrorism-related cases in Canada — questions tactics of this kind. "Reading unsubstantiated allegations is not ally indicated that he wanted to behead the prime minister of Canada," Batasar told media on June 6.But Rocco Galati — one of the lawyers with der them, and blow up the CBC's Toronto head- quarters as part of a massive terrorist plot, is under fire from his criminal law colleagues. C 25-year old restaurant worker Steven hand, intended to take politicians hostage, mur- T "There's an allegation that my client person- that3 its use of the "Fo bie" na since 1992 would not likely create Intellectual Property Office accept- ed Barbie's Restaurant's argument Ontario infringed on its trademark. Ottawa, says the decision does in Ridout & Maybee LLP in stores in Quebec and eastern BY JULIUS MELNITZER he tactics of Gary Batasar, the lawyer who revealed Crown allegations that his client, Bar Law Times mark holder, it doesn't mean it's the end of protection of famous marks or that the famous mark holder can never stop anyone from using their trademark," Charness says. "What the cases mean is that we have to now look at how famous is the client's trademark and is there a connection or at least some possi- ble connection between the wares and services normally associated with the famous mark and whatev- "It's not enough to just be famous. That's not going to carry er the third party is doing. See Fame, page 2 The Supreme Court says con- sumers won't confuse Barbie dolls for nachos and steaks served in a Quebec roadhouse restaurant with the same name. Photo: David W. Nees famous brand. "If our client is a famous trade- not give small businesses a free rein to hitch their business to a A top criminal lawyer, who spoke on condi- tion of anonymity, was of the same mind. "Blurting out the government's theory to ment not only from defence counsel, but also from any human being," he told Law Times. "I find the statement made [about the beheading] quite disturbing." "I would expect a far more responsible state- my way of doing business at such an early junc- ture in the proceedings," says Galati, who repre- sents another of the 17 accused. Arif Raza of Mississauga, who represents 19- in these conditions. This is not a case that calls for hush-hush." Covering Ontario's Legal Scene dinary allegations that call for an abnormal response," he said. "Niceties have to go out the window when the charges against the accused are drawing global media to Peel Region. "Defence counsel should not just stay silent 1998, is adamant that he did the right thing. "These are extraordinary times and extraor- would not create the headlines that it did." For his part, Batasar, a criminal lawyer since 'These are extraordinary times and extraordinary allegations that call for an abnormal response,' says Gary Batasar, right, with lawyer Donald McLeod outside the Brampton courthouse. media crush that followed outside the courtroom. Some well-known members of the defence bar, also speaking off the record, questioned why StorageLitigation Support/Archive • lous." He points out that the issue first arose in the courtroom when he asked prosecutor Jim Leising whether he had any evidence to substan- tiate the sensational allegations in the synopsis. He says he had no choice but to respond to the Batasar says the media's treatment of his remarks and the criticism of his action are "ridicu- Photo: Frank Gunn/CP the most experience in terrorism-related cases in Canada — questions tactics of this kind. "Reading unsubstantiated allegations is not ally indicated that he wanted to behead the prime minister of Canada," Batasar told media on June 6.But Rocco Galati — one of the lawyers with der them, and blow up the CBC's Toronto head- quarters as part of a massive terrorist plot, is under fire from his criminal law colleagues. C 25-year old restaurant worker Steven hand, intended to take politicians hostage, mur- T "There's an allegation that my client person- BY JULIUS MELNITZER For Law Times he tactics of Gary Batasar, the lawyer who revealed Crown allegations that his client, LT QUALITY DOCUMENT SCANNING Scan-to-File See No, page 2 June 12, 2006 www.lawtimesnews.com in these conditions. This is not a case that calls for hush-hush." dinary allegations that call for an abnormal response," he said. "Niceties have to go out the window when the charges against the accused are drawing global media to Peel Region. "Defence counsel should not just stay silent 1998, is adamant that he did the right thing. "These are extraordinary times and extraor- would not create the headlines that it did." For his part, Batasar, a criminal lawyer since 'These are extraordinary times and extraordinary allegations that call for an abnormal response,' says Gary Batasar, right, with lawyer Donald McLeod outside the Brampton courthouse. media crush that followed outside the courtroom. Some well-known members of the defence bar, also speaking off the record, questioned why lous." He points out that the issue first arose in the courtroom when he asked prosecutor Jim Leising whether he had any evidence to substan- tiate the sensational allegations in the synopsis. He says he had no choice but to respond to the Batasar says the media's treatment of his remarks and the criticism of his action are "ridicu- Photo: Frank Gunn/CP See No, page 2 the face of fraud allegations. "Th e decision affi rms that a defendant who alleges fraud and loses will have to pay more in costs if the allegations fail even in the face of a relatively small award," Katz says. Elkin advises that his client is seeking leave to appeal Har- vison Young's decision. Th e hearing, he notes, "is no doubt some time away." PAGE 5 For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0322 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com Professor Stephen M. W addams www.divorcemate.com 1-800-653-0925 • www.docudavit.com "We can cope with this case so long as the federal and provincial government respond to the strains it creates. It's too early to tell how everything will play out, but the lengthier and more complex it gets, the more important it is that we have the resources." — Janet Leiper, LAO's chairwoman See Batasar, page 1 www.divorcemate.com 1-800-653-0925 • www.docudavit.com "We can cope with this case so long as the federal and provincial government respond to the strains it creates. It's too early to tell how everything will play out, but the lengthier and more complex it gets, the more important it is that we have the resources." — Janet Leiper, LAO's chairwoman See Batasar, page 1 Pay-Per-Use or Subscription... It's Your Choice! Inside This Issue Colleagues say statements to press were irresponsible Batasar under fire from other lawyers Quote of the week Pay-Per-Use or Subscription... It's Your Choice! Trademark holders must prove real connection Inside This Issue Colleagues say statements to press were irresponsible Batasar under fire from other lawyers Quote of the week Trademark holders must prove real connection