Lawson v. Viersen, 2012 ONCA 25

JudgeSharpe, Armstrong and Rouleau, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateSeptember 06, 2011
JurisdictionOntario
Citations2012 ONCA 25;(2012), 287 O.A.C. 107 (CA)

Lawson v. Viersen (2012), 287 O.A.C. 107 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JA.011

Martha Lawson (plaintiff/respondent) v. Maria Viersen and John Viersen (defendants/appellants)

Martha Lawson and James Lawson (plaintiffs/respondents) v. Scott Robert Hart (defendant/respondent)

(C52688; 2012 ONCA 25)

Indexed As: Lawson v. Viersen

Ontario Court of Appeal

Sharpe, Armstrong and Rouleau, JJ.A.

January 16, 2012.

Summary:

Lawson was involved in two motor vehicle accidents seven months apart. The first involved the Viersens. The second was with Hart. Lawson and her son sued Hart. Lawson also sued the Viersens. Lawson's position was that both accidents contributed to the same damages and injuries. The actions were tried together as a consolidated action. Hart offered to settle by paying $300,000 to the Lawsons. The Viersens offered to settle or contribute by making a $100,000 payment to Lawson. The offers were not accepted. The jury found that the injuries suffered by Lawson in the two accidents were separate and distinct and it made separate damages assessments respecting each accident. The court found that the total net amount awarded against the Viersens was $7,926.71 and the total net amount awarded against Hart was $344,260.37. The Lawsons sought costs. The Viersens argued that they should not pay costs, but rather they were entitled to recover their costs on the basis of rule 49.10(2). The trial judge held that because the defendants were alleged to be jointly and severally liable for Lawson's injuries, only a joint offer to settle constituted an offer that complied with rule 49.11. The judge therefore declined to apply the costs consequences of rule 49.10(2) with respect to the Viersens' offer and found that the Lawsons were entitled to their costs. The trial judge awarded the Lawsons $482,278.09 in fees and disbursements and apportioned costs 35 per cent against the Viersens and 65 per cent against Hart. The Viersens had also sought to recover their costs from Hart pursuant to rule 49.12 on the basis that Hart ought to have accepted their offer to contribute $100,000 towards settlement of the consolidated action. The trial judge rejected that submission. The Viersens appealed the costs order.

The Ontario Court of Appeal allowed the appeal. The trial judge was correct to conclude that, because the defendants were alleged to be jointly and severally liable to Lawson for indivisible injuries, rights of contribution or indemnity "may" exist between them. The Viersens' offer therefore did not engage the costs consequences of rule 49.10 as the offer did not comply with rule 49.11 respecting a joint offer from multiple defendants. However, rule 49.13 gave a trial judge residuary discretion to consider offers to settle that did not meet the specific requirements of rules 49.10 and 49.11 and the Viersens offer ought to have been considered in arriving at a costs award. Further, rule 49.12(2) provided that the court could consider an offer to contribute in making an award of costs. The Viersens offer to contribute to Hart should have weighed heavily in favour of ordering that Hart pay the Viersens' costs as contemplated by rule 49.12(2)(a). As a result, the court varied the costs order to provide that the Viersens were to pay 35 per cent of the Lawsons' costs incurred, but only up to the date of the Viersens offer. The court also ordered that Hart pay the Viersens' partial indemnity costs incurred from the date of the Viersens' offer to contribute in the amount of $149,071. The court awarded the Viersens their costs of the appeal fixed at $33,000 (Hart was to pay $16,500 and the Lawsons were to pay $16,500).

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7250 ].

Practice - Topic 7245.3

Costs - Party and party costs - Offers to settle - Where more than one offer to settle - [See Practice - Topic 7250 ].

Practice - Topic 7245.7

Costs - Party and party costs - Offers to settle - Cases where liability apportioned - [See Practice - Topic 7250 ].

Practice - Topic 7249.1

Costs - Party and party costs - Offers to settle - Where multiple parties (incl. non- severable offers) - [See Practice - Topic 7250 ].

Practice - Topic 7250

Costs - Party and party costs - Offers to settle - Joint offers - Lawson was involved in two motor vehicle accidents seven months apart - The first involved the Viersens - The second was with Hart - Lawson and her son sued Hart - Lawson also sued the Viersens - Lawson's position was that both accidents contributed to the same damages and injuries - The actions were tried together as a consolidated action - Hart offered to settle by paying $300,000 to the Lawsons - The Viersens offered to settle or contribute by making a $100,000 payment to Lawson - The offers were not accepted - The jury found that the injuries suffered by Lawson in the two accidents were separate and distinct and made separate damages assessments respecting each accident - The court found that the total net amount awarded against the Viersens was $7,926.71 and the total net amount awarded against Hart was $344,260.37 - The Lawsons sought costs - The Viersens argued that they should not pay costs, but rather were entitled to recover their costs on the basis of rule 49.10(2) - Rule 49.11 provided that where two or more defendants were alleged to be jointly and severally liable and rights of contribution or indemnity "may" exist between the defendants, they had to make a joint offer to settle to attract the costs consequences of rule 49.10(2) - The trial judge held that because the defendants were alleged to be jointly and severally liable for Lawson's injuries, only a joint offer to settle constituted an offer that complied with rule 49.11 - The judge therefore declined to apply the costs consequences of rule 49.10(2) with respect to the Viersens' offer and found that the Lawsons were entitled to their costs - The trial judge awarded the Lawsons $482,278.09 in fees and disbursements and apportioned costs 35 per cent against the Viersens and 65 per cent against Hart - The Viersens had also sought to recover their costs from Hart pursuant to rule 49.12 on the basis that Hart ought to have accepted their offer to contribute $100,000 towards settlement of the consolidated action - The trial judge rejected that submission - The Viersens appealed the costs order - The Ontario Court of Appeal allowed the appeal - The trial judge was correct to conclude that, because the defendants were alleged to be jointly and severally liable to Lawson for indivisible injuries, rights of contribution or indemnity "may" exist between them - The Viersens' offer therefore did not engage the costs consequences of rule 49.10 as the offer did not comply with rule 49.11 respecting a joint offer from multiple defendants - However, rule 49.13 gave a trial judge residuary discretion to consider offers to settle that did not meet the specific requirements of rules 49.10 and 49.11 and the Viersens offer ought to have been considered in arriving at a costs award - Further, rule 49.12(2) provided that the court could consider an offer to contribute in making an award of costs - The Viersens offer to contribute to Hart should have weighed heavily in favour of ordering that Hart pay the Viersens' costs as contemplated by rule 49.12(2)(a) - As a result, the court varied the costs order to provide that the Viersens were to pay 35 per cent of the Lawsons' costs incurred, but only up to the date of the Viersens offer - The court also ordered that Hart pay the Viersens' partial indemnity costs incurred from the date of the Viersens offer to contribute in the amount of $149,071 - The court awarded the Viersens their costs of the appeal fixed at $33,000 (Hart was to pay $16,500 and the Lawsons are to pay $16,500).

Torts - Topic 7142

Joint and concurrent tortfeasors - Concurrent tortfeasors - What constitutes - [See first Torts - Topic 7375 ].

Torts - Topic 7375

Joint and concurrent tortfeasors - Contribution between tortfeasors - General principles - Section 1 of the Negligence Act provided for a right of contribution and indemnity between concurrent tortfeasors - The appellants argued that the Ontario Court of Appeal decisions in O'Neil v. Van Horne and Misko v. John Doe had limited the application of s. 1 of the Negligence Act to cases where the tortfeasors were concurrent in time, that is, the torts occurred at the same time - The Ontario Court of Appeal did not agree - O'Neil and Misko did not narrow the concept of concurrent tortfeasors - See paragraphs 36 to 44.

Torts - Topic 7375

Joint and concurrent tortfeasors - Contribution between tortfeasors - General principles [See Practice - Topic 7250 ].

Cases Noticed:

Niagara Structural Steel (St. Catharines) Ltd. v. LaFlamme (W.D.) Ltd. (1987), 19 O.A.C. 142; 58 O.R.(2d) 773 (C.A.), refd to. [para. 20].

Rooney v. Graham (2001), 144 O.A.C. 240; 53 O.R.(3d) 685 (C.A.), refd to. [para. 20].

Walker Estate et al. v. York Finch General Hospital et al. (1999), 118 O.A.C. 217; 43 O.R.(3d) 461 (C.A.), affd. [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 20].

Pilon v. Janveaux et al. (2006), 211 O.A.C. 19 (C.A.), refd to. [para. 22].

Rider et al. v. Dydyk (2007), 231 O.A.C. 169; 87 O.R.(3d) 507; 2007 ONCA 687, leave to appeal refused (2008), 385 N.R. 400 (S.C.C.), refd to. [para. 22].

Alderson et al. v. Callaghan et al. (1998), 111 O.A.C. 141; 40 O.R.(3d) 136 (C.A.), refd to. [para. 32].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 32].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 33].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333, refd to. [para. 33].

Martin v. Listowel Memorial Hospital et al. (2000), 138 O.A.C. 77; 51 O.R.(3d) 384 (C.A.), refd to. [para. 23].

O'Neil v. Van Horne - see A.O. v. J.V. et al.

A.O. v. J.V. et al. (2002), 158 O.A.C. 188; 59 O.R.(3d) 384; 212 D.L.R.(4th) 558 (C.A.), consd. [para. 36].

Misko v. John Doe et al. (2007), 229 O.A.C. 124; 87 O.R.(3d) 517; 2007 ONCA 660, consd. [para. 36].

Misko v. John Doe et al., [2006] O.T.C. Uned. 946;82 O.R.(3d) 535 (Sup. Ct.), refd to. [para. 40].

Sale v. O'Grady's Restaurant et al., [2011] O.T.C. Uned. 2837; 2011 ONSC 2837 (Sup. Ct.), refd to. [para. 42].

Statutes Noticed:

Negligence Act, R.S.O. 1990, c. N-1, sect. 1 [para. 29].

Rules of Civil Procedure (Ont.), rule 49.11, rule 49.12, rule 49.13 [para. 1]; rule 49.10(2) [para. 2].

Authors and Works Noticed:

Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988), p. 8-9 [para. 31].

Williams, Glanville, Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (1951), p. 1 [para. 31].

Counsel:

Jeffrey M.K. Garrett, for the appellants;

Mason Greenaway, for the respondents, Martha Lawson and James Lawson;

Gordon L. Robson, for the respondent, Scott Robert Hart.

This appeal was heard on September 6, 2011, before Sharpe, Armstrong and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rouleau, J.A., and was released on January 16, 2012.

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26 practice notes
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...to Settle, Rules of Civil Procedure, Rules 49.19(2), 49.13, Moore v. Sweet, 2018 SCC 52, König v. Hobza, 2015 ONCA 885, Lawson v. Viersen, 2012 ONCA 25 Bowman v. Martineau, 2020 ONCA 330 Keywords: Contracts, Real Property, Agreement of Purchase and Sale of Land, Representations and Warranti......
  • Top 5 Civil Appeals From The Court Of Appeal (December 2014)
    • Canada
    • Mondaq Canada
    • December 29, 2014
    ...more or less favourable than an offer to settle. Moreover, in Pilon v. Janveaux, [2006] O.J. No. 887 (C.A.) and Lawson v. Vierson, 2012 ONCA 25, 346 D.L.R. (4th) 518, the Court held that when comparing a judgment with an offer to settle, the court is not to consider the judgment awarded by ......
  • Tarrington v. Havcare Investments Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • October 18, 2022
    ...Appeal has held that r. 49.13 calls for a holistic approach to determining costs regardless of technical deficiencies: Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 46; Elbakhiet v. Palmer, 2012 ONCA 544, 121 O.R. (3d) 616, leave to appeal to S.C.C. refused [2014] S.C.C.A. No......
  • Dawod v. Jasey, 2016 ONSC 7427
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 9, 2016
    ...Igbokwe v. Price, [2004] O.J. No. 4667 Keam v. Caddey, 2010 ONCA 565, 103 O.R. (3d) 626 Lakew v. Munro, 2014 ONSC 7316 Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771 Loffredi v. Simonetti, [1988] O.J. No. 1340 Magnone v. Dawson, 2014 ONSC 3548 Mayer v. 1474479 Ontario Inc., 2014 ONSC 26......
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24 cases
  • Rutt v. Meade,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • April 6, 2022
    ...the damage allegedly caused by Mr. Meade and Synergy from that allegedly caused by Ms. Ramirez and Valley United. See Lawson v. Viersen, 2012 ONCA 25, at paras.30-44 and Sale v. O’Grady’s Restaurant, 2011 ONSC 2437 (Ont. S.C.J.) at paras.32 and [22]     ......
  • Tarrington v. Havcare Investments Inc.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • October 18, 2022
    ...Appeal has held that r. 49.13 calls for a holistic approach to determining costs regardless of technical deficiencies: Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 46; Elbakhiet v. Palmer, 2012 ONCA 544, 121 O.R. (3d) 616, leave to appeal to S.C.C. refused [2014] S.C.C.A. No......
  • Dawod v. Jasey, 2016 ONSC 7427
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 9, 2016
    ...Igbokwe v. Price, [2004] O.J. No. 4667 Keam v. Caddey, 2010 ONCA 565, 103 O.R. (3d) 626 Lakew v. Munro, 2014 ONSC 7316 Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771 Loffredi v. Simonetti, [1988] O.J. No. 1340 Magnone v. Dawson, 2014 ONSC 3548 Mayer v. 1474479 Ontario Inc., 2014 ONSC 26......
  • Welton v. United Lands Corporation Limited,
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    • Court of Appeal (Ontario)
    • May 27, 2020
    ...a “holistic approach”: König, at para. 35. In my view, the respondents did not comply with “the spirit of rule 49”: Lawson v. Viersen, 2012 ONCA 25, at para. 46. Accordingly, this is not an appropriate case where the r. 49.10(2) costs consequences should apply against the [53] The costs con......
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2 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...to Settle, Rules of Civil Procedure, Rules 49.19(2), 49.13, Moore v. Sweet, 2018 SCC 52, König v. Hobza, 2015 ONCA 885, Lawson v. Viersen, 2012 ONCA 25 Bowman v. Martineau, 2020 ONCA 330 Keywords: Contracts, Real Property, Agreement of Purchase and Sale of Land, Representations and Warranti......
  • Top 5 Civil Appeals From The Court Of Appeal (December 2014)
    • Canada
    • Mondaq Canada
    • December 29, 2014
    ...more or less favourable than an offer to settle. Moreover, in Pilon v. Janveaux, [2006] O.J. No. 887 (C.A.) and Lawson v. Vierson, 2012 ONCA 25, 346 D.L.R. (4th) 518, the Court held that when comparing a judgment with an offer to settle, the court is not to consider the judgment awarded by ......

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