CITATION: Mitts v. Bell Aliant Regional Communications Income Fund, 2014 ONSC 7147
DIVISIONAL COURT FILE NO.: 290/14
DATE: 20141209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MURRAY MITTS Plaintiff (Responding Party)
– and –
BELL ALIANT REGIONAL COMMUNICATIONS INCOME FUND carrying on business as BELL ALIANT TELECOM INC. and DONALD OSCAR GEORGE LAWRENCE, SHIRLEY JOAN LAWRENCE, TAMMY LYNN LAWRENCE-CYMBALIST, DAVID JOHN LAWRENCE Defendants (Moving Parties)
COUNSEL:
Kenneth M. Arenson, for the Plaintiff (Responding Party)
James R. Jones and Kati E. Aubin, for the Defendant, Bell Aliant Telecom Inc.
HEARD at Toronto: December 9, 2014
HARVISON YOUNG J. (orally)
[1] Notwithstanding the able submissions of Mr. Jones, the application is dismissed.
[2] Cost decisions are highly discretionary and leave to appeal is granted very rarely and only in the most obvious cases: see Brad-Jay Investments v. Szijjarto, 2006 42636 (ON CA), [2006] O.J. No. 5078 at para. 21; see also McNaughton Automotive Limited v. Co-operators General Insurance Co. 2008 ONCA at paras. 23-27. This is not one of those obvious, rare cases.
[3] The test for leave to appeal interlocutory orders is set out at Rule 62.02(4)(a) and (b). Beginning with 62.02(4)(a), I am not persuaded that there are conflicting decisions on costs. Bell complains not of the law or principles that were applied but of the actual amount awarded. This cannot constitute conflicting decisions within the meaning of the rule. There is no conflict, in my view, of the principles as articulated in the cases before the Court.
[4] Turning to 62.02(4)(b), there is no doubt that the amount of $25,000 awarded was high for what was, in essence, an undertakings order. However, while the motion judge did not specifically itemize the factors set out in Rule 57, it is clear that he was alive to them. He considered the quantum to be justified “by reason of the defendant’s conduct in obstructing the plaintiff’s efforts and attempting to delay the progress of the action”. On the facts of the case at bar, discoveries had been held in 2009. The undertakings had been outstanding since then, and there had been at least a couple of orders made for compliance which had not been satisfied at least to the plaintiff’s satisfaction. There was evidence before the motion judge to support his view that the defendants had been delaying the progress of this personal injury action for some time. The motion was ultimately settled on the return date in early 2014, some 5 years after the discoveries which gave rise to the undertakings.
[5] I note that the motion judge declined to award the quantum of costs actually sought by the plaintiff in the range of $49,000 to $90,000. In doing so he stated that this amount was “grossly excessive, unreasonable and beyond reasonable expectation of the parties”. Thus, at least implicitly, the motion judge considered these factors in reaching his conclusion that $25,000 was the appropriate amount of costs to be awarded.
[6] In summary, having read the materials and heard the applicant’s submissions, I am not satisfied that this is one of those rare cases where it is obvious that the motion judge’s discretion was wrongly exercised. However, even if there is “reason to doubt the correctness” of his decision, the proposed appeal is not of such importance that, in my opinion, leave to appeal should be granted. This was a “one-off” case and not one that purports to apply new considerations or principles. It is a case in which the motion judge exercised his discretion by applying settled principles to a particular set of circumstances, which led to a particular result on these facts, a result with which the defendants are unhappy.
[7] The appeal is therefore dismissed.
[8] I have endorsed the Motion Record, “Application dismissed for reasons delivered orally. Costs in the amount of $2,000 to the respondent.”
HARVISON YOUNG J.
Date of Reasons for Judgment: December 9, 2014
Date of Release: December 12, 2014
CITATION: Mitts v. Bell Aliant Regional Communications Income Fund, 2014 ONSC 7147
DIVISIONAL COURT FILE NO.: 290/14
DATE: 20141209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
MURRAY MITTS Plaintiff (Responding Party)
– and –
BELL ALIANT REGIONAL COMMUNICATIONS INCOME FUND carrying on business as BELL ALIANT TELECOM INC. and DONALD OSCAR GEORGE LAWRENCE, SHIRLEY JOAN LAWRENCE, TAMMY LYNN LAWRENCE-CYMBALIST, DAVID JOHN LAWRENCE Defendants (Moving Parties)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: December 9, 2014
Date of Release: December 12, 2014