



COURT OF APPEAL FOR ONTARIO

CITATION:
Burhoe v. Mohammed, 2012
    ONCA 499

DATE: 20120711

DOCKET: C55059

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Derrick Burhoe

Plaintiff (Respondent)

and

Abdenuce Mohammed, Budget Car Rentals Toronto
    Ltd.

Defendants (Appellants)

Chris G. Paliare, for the defendants (appellants)

Mark A. Klaiman, for the plaintiff (respondent)

Heard & released orally: June 29, 2012

On appeal from the order of Justice Gordon Lemon of the Superior
    Court of Justice, dated August 15, 2011, with reasons reported at 2011 ONSC
    4853.

ENDORSEMENT

[1]

The plaintiff claimed damages in excess of $1 million as a result of a
    motor vehicle accident.  Included were claims for general damages, past income
    loss, past housekeeping loss, future income loss and future housekeeping loss.

[2]

After a 16 day trial, the jury awarded the plaintiff general damages of
    $54,000 and past income loss of $11,000.  Nothing was awarded for the remaining
    three heads of damages.  In addition, there was a $15,000 deductible pursuant
    to s. 267.5(7)3 of the
Insurance Act
, R.S.O. 1990 c. I.8, that was to
    be applied to reduce the award of damages to $50,000.

[3]

The trial judge set aside the jury verdict as perverse and ordered a new
    trial.  The trial judge then proceeded to fix the costs in favour of the
    plaintiff in the amount of $196,695.

[4]

The defendants appealed to this court on both the setting aside of the
    jury verdict and on the issue of costs.  The appellants advanced two arguments
    on the costs appeal.  First, they argued that costs should not have been
    determined until after the second trial.  Second, they argued that due regard was
    not paid by the trial judge to the principle of proportionality given the
    limited amount awarded by the jury.

[5]

This court reinstated the jurys verdict, set aside the costs award and
    remitted the matter of costs to the trial judge.  The trial judge then carried
    out a new assessment of costs and once again assessed costs at $196,695.

[6]

The appellants ask that this second costs order be set aside and that
    this court fix the costs.  They suggest a sum of $50,000 plus disbursements of
    $53,290.  They argue that the second costs order is inconsistent with this
    courts decision in the earlier appeal and that the trial judge failed to
    consider and apply the proper principles, in particular, the principle of
    proportionality.

[7]

The trial judges reasons in large measure repeated the reasons he gave
    when he made the first costs award.  In support of his decision he referred to
    the case of
Dennie v. Hamilton
(2008), 89 O.R. (3d) 542, a case
    similar to the present case.  In
Dennie
, recovery by the plaintiff at
    trial was for an amount substantially below the amount claimed, but exceeded any
    offer made by the defendant in that case.  In
Dennie
, the trial judge
    recognized that a trial was necessary because of the inadequate settlement
    offer.  Although the plaintiff only recovered about $40,000, balancing the
    interests on the issue of costs the trial judge nonetheless awarded approximately
    $106,000 in costs.  This represented a reduction in the costs sought by the
    plaintiff of about $34,000.

[8]

In the present case we agree with the trial judge that having recovered
    more than the offers of settlement, the plaintiff is entitled to costs.  However,
    in our view, the amount awarded by the trial judge cannot stand.  In light of
    the previous decision of this court setting aside his earlier costs award, the
    principle of proportionality made a reduction in the plaintiffs costs, similar
    to the reduction made in
Dennie
, necessary and appropriate.

[9]

The appeal is allowed and the award of costs is reduced from $196,695 to
    $166,695.  The appellants are awarded costs of the appeal fixed at $7,500
    inclusive of disbursements and applicable taxes.

Paul Rouleau J.A.

David Watt J.A.

S.E. Pepall J.A.


