CITATION: Douglas v. Adams, 2018 ONSC 6329
DIVISIONAL COURT FILE NO.: DC-18-2366
DATE: 2018/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISONAL COURT
B E T W E E N:
Jonathan Edwards Douglas
Appellant (Plaintiff)
– and –
David Frederick Adams
Respondent (Defendant)
James Anderson for the Appellant
Marc Y. Simard for the Respondent
HEARD: September 19, 2018
REASONS FOR DECISION
o’bonsawin J.
Background
[1] This is an appeal by the Appellant, Jonathan Edwards Douglas (“Mr. Douglas”), from the Judgement and Decision of Deputy Judge Gilbert (“trial judge”) of the Ottawa Small Claims Court dated November 30, 2017. He dismissed JED’s claim against the Respondent, David Frederick Adams (“Mr. Adams”). The trial took place on November 21, 2017. After the trial judge issued his Judgment and Decision, he invited counsel for the parties to file written submissions on costs. Only Mr. Adam’s counsel provided his written submissions. Consequently, Deputy Judge Gilbert awarded costs in the amount of $8,679 against Mr. Douglas. These costs have not been paid by Mr. Douglas.
[2] Mr. Douglas filed his claim against Mr. Adams for his failure to file a Notice of Intent to Defend (“NOID”) in a separate civil action in which Mr. Douglas was a Defendant. For the trial before the trial judge, the parties filed an Agreed Statement of Facts (“ASF”) with 12 attached exhibits. I will not go through the facts extensively since I have attached them without the exhibits as Appendix “A” to these Reasons for Decision. There was no viva voce evidence provided at trial since the parties agreed to limit the evidence to the ASF.
[3] Mr. Douglas was represented by counsel in the other civil matter at one point but at the time that the issues arose in this matter, he was self-represented. He prepared his own NOID. Mr. Adams was a process server at the time. On November 29, 2013, Mr. Douglas prepared a NOID and contacted Mr. Adams to retain his services to file the document at the Ottawa courthouse by the end of the same day. Mr. Adams quoted a service fee of $117.63. Mr. Douglas transferred the fee in advance to Mr. Adams for his services and sent him the NOID.
[4] Mr. Douglas did not know the cost for filing a NOID and did not know he required an Affidavit of Service (“AOS”) in order to file a NOID. Mr. Adams did not know this information either.
[5] Mr. Adams did not ask Mr. Douglas for the court filing fee and an AOS and Mr. Douglas did not provide them to Mr. Adams.
[6] Mr. Douglas did not instruct Mr. Adams to re-serve the NOID.
[7] Mr. Adams attended the courthouse to file the NOID. He was not asked to pay the filing fee by the counter clerk and he did not pay the fee. In the past, the counter clerk normally advised Mr. Adams if there were any defects in the documents. In this matter, the counter clerk stamped the document with the date, checked his computer and pulled up the file on the computer screen and entered data therein. The counter clerk then wrote a note on the form regarding the pending dismissal and made no further comments to Mr. Adams. The NOID had in fact not been filed.
[8] Due to his mistaken belief and his reliance upon the court clerk to point out deficiencies, Mr. Adams truly believed that he had field the NOID.
[9] On November 29, 2013, Mr. Adams telephoned Mr. Douglas and reported that he had completed the task.
[10] On December 2, 2013, Mr. Cyr, one of the lawyers for the Plaintiff in the other civil matter, e-mailed Mr. Douglas and advised him that “no documents have been filed with the court”. Mr. Cyr provided Mr. Douglas with another extension until the next day, December 3, to serve and file his NOID. Mr. Cyr also instructed Mr. Douglas that he had to ensure that the form complied with the Rules and file the document at the courthouse by paying the applicable filing fee accompanied by the AOS confirming that he had served the document on Vincent Dagenais Gibson LLP. In response, Mr. Douglas forwarded Mr. Cyr’s email to Mr. Adams to inquire about the filing. Mr. Adams responded two hours later to Mr. Douglas by e-mail: “Here is what I got from the Court on Friday” and attached a copy of the Form 18B with the counter clerk’s date stamp and note.
[11] Mr. Douglas sent Mr. Cyr the copy of the NOID with the counter clerk’s note. Mr. Cyr did not respond to him afterwards and Mr. Douglas did not follow up with Mr. Cyr. In addition, Mr. Douglas did not make any further inquiries into the status of the file with the Court.
[12] Until Mr. Adams was served with this action, he was under the mistaken belief that he had filed the NOID.
Position of the Parties
[13] Mr. Douglas argues as follows:
• the proper standard of review in this appeal is that of “correctness”;
• the trial judge erred in law by failing to find an implied or express term of the contract between the parties, that Mr. Adams would conduct himself with due skill and care;
• the trial judge erred in law in determining that Mr. Adams does not owe a duty of care to Mr. Douglas, his instructing client;
• the trial judge erred when he found that Mr. Adams reported to Mr. Douglas that he filed the NOID and sent it to him therefore the former’s mistake did not cause the latter grief;
• Mr. Adams breached his duty of care by not having the basic skills necessary to report accurately to his instructing client and this is what cause Mr. Douglas his grief;
• the trial judge erred in rejecting an expert report out of hand on arbitrary and unfounded grounds; and
• the trial judge erred in law in his treatment of causation of damages.
[14] Mr. Adams argues as follows:
• the proper standard of review in this appeal is not “correctness” as argued by Mr. Douglas, it is rather “a palpable and overriding error”;
• the trial judge did not commit any errors;
• Mr. Adams’ duty of care is limited to following his client’s instructions;
• contrary to Mr. Douglas’ argument, the trial judge provided reasons for rejecting the expert report; and
• there is no evidence in the FAS that demonstrates any causal connection.
Issues
[15] This matter raises the following issues:
Did the trial judge err in failing to find an implied or express term of the contract between the parties that Mr. Adams would conduct himself with due skill and care?
Did the trial judge err in determining that a process server does not owe a duty of care to his/her client?
Did the trial judge err in rejecting the “expert” report?
Did the trial judge err in finding there was no causation of damages?
Analysis
[16] The standard of review for decisions in the Small Claims Court is outlined in Housen v. Nikolaisen, 2002 SCC 33. At paragraphs 8, 10 and 37, the Supreme Court states:
8 On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness…
10 The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” …
37 … [A question of mixed fact and law] is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the [legal] standard or its application, in which case the error may amount to an error in law.
[17] Since this appeal deals with issues of mixed fact and law, the standard of review is whether the trial judge made a palpable and overriding error.
[18] In reviewing this appeal, I will only refer to the facts listed in the ASF since it was the only evidence before the trial judge. Any further facts that were provided by the parties cannot form part of this appeal since there had not been any application for fresh evidence.
- Did the trial judge err in failing to find an implied or express term of the contract between the parties that Mr. Adams would conduct himself with due skill and care?
[19] The trial judge did not err in finding that there was not an implied or express terms of the contract between Mr. Douglas and Mr. Adams.
[20] There was no written contract between the parties and there were no express or implied warranties which were tendered as evidence for the verbal contract. The trial judge correctly stated: “It is therefore the task of this court to determine what the parties agreed to in these circumstances” (para. 10 of Order). Mr. Douglas takes the position that there was a contract in place and Mr. Adams had a responsibility to properly file the NOID. This means that Mr. Adams was responsible to ensure that the NOID conformed to the Rules of Civil Procedure (“Rules”). Therefore, the NOID had been properly drafted and served, etc. Mr. Adams’s position, on the other hand, is that he was only required to attempt to file the NOID and report back to his client.
[21] Mr. Douglas argues that it is settled law that an implied term of a contract for service is to perform the service with reasonable care and skill. He refers this Court to cases that deal with skills and abilities. These cases are not relevant in this appeal. The trial judge properly observed: “process servers are unregulated and do not have any form of expertise, or are expected to take courses or have special knowledge beyond that of a layman. Anyone regardless of background, training, knowledge or experience can set up shop as a process server”. A process server offers services as an agent for his/her client. There is no special relationship between the process server and the client. Otherwise, the process server would be in the business of providing legal advice to clients and/or legal review about how to properly meet the requirements of the Rules. This is the work of a paralegal or a lawyer, not a process server. A process server does not provide warranties to his/her client.
[22] Mr. Douglas concedes that there are no reported cases in Canada that relate to the duty of care of a process server in relation to his/her client. The likely reason for this is that no duty of care exists.
2)Did the trial judge err in determining that a process server does not owe a duty of care to his/her client?
[23] The trial judge did not err in determining that a process server does not owe a duty of care to his/her client.
[24] In addition to my comments in Issue #1, I add the following with regards to this issue. In his Judgment and Reasons, the trial judge referred to the case of Fine’s Flower Ltd. et al. v. General Accident Assurance Co. of Canada et al., 1977 1182 (ON CA), [1977] O.J. No. 2435, in which the Court of Appeal reviewed whether an agent was liable to the plaintiff. According to his Judgment and Reasons, the trial judge referred to this case because Mr. Douglas was asking the Court to extend a special relationship between a layperson and a process server. In Fine’s Flower Ltd., the Court of Appeal stated as follows at para. 10:
The relationship giving rise to a finding of negligence, arose by reason of the undertaking by the defendant agent to provide the plaintiff with insurance protection against “foreseeable” loss or to see that he was “adequately covered with insurance”. The trial Court has found that such a relationship had arisen between the plaintiff and the defendant agent.
[25] Mr. Douglas argues that this was an error since the parties did not argue this point. In addition, he argues that the trial judge did not apply the appropriate test in determining whether a duty of care should be imposed based on the facts before him. Instead, the trial judge should have applied the test set out by the Supreme Court in Deloitte & Touche v. Livent Inc., 2017 SCC 63, [2017] 2 SCR 855, which involves a two-step inquiry. Firstly, the Court must determine if a prima facie duty of care exists between the parties. At this stage, the Court must review the issues of proximity and foreseeability. Secondly, the Court must determine whether there are any residual policy considerations that may negate the imposition of a duty of care.
[26] It is clear that the trial judge did not apply the test stated by the Supreme Court in Deloitte. He did, however, review the issue of proximity by going through the issue of special relationships. With regards to foreseeability, Mr. Douglas knew from his correspondence with Mr. Cyr that he had to file a defence. The evidence before the trial judge clearly established that Mr. Douglas did not take any steps to set aside the noting in default after December 2, 2013 until he learned of the Default Judgment.
[27] More specifically, the trial judge noted at paras. 7-8:
[T]he plaintiff was on many occasions warned of the consequences of not filing a notice of intent to defend or a defence itself both by counsel for the other party and by the notice of intent itself…The plaintiff knew this had to be done…It was his obligation to follow up on this, and not his agent, the process server, who was hired to do anything but file the notice.
In addition, the plaintiff had ample notice and knowledge of what had to be done to preserve his rights. He had earlier attempted to file a notice on September 2, 2013 and a rudimentary defence on September 16, 2013. He was also for a time represented by counsel. The lawyers representing the other party in the main action were more than patient with the plaintiff and frequently put him on notice of what would happen in the event of default and by when that would happen if [what] was required was not done. One material fact must be alluded to and that is that counsel for the other party made it clear to the plaintiff that the document was improper and that in reality it had not been filed as presumed by the defendant. And so, the plaintiff was given one last chance to comply. Furthermore, and perhaps most telling the plaintiff on a cross examination admitted that he understood he had to filed a Statement of Defence…At that point, he had the responsibility to protect his own interests and but for his failure to do anything, he would not have been saddled with costs he now chooses to recover from the defendant.
[28] In the end, I am unable to conclude that the trial judge made any palpable and overriding error with regards to his factual conclusions. There was ample evidence to support his conclusion that Mr. Douglas had no reasonable basis to rely on Mr. Adams to file the NOID. There was no reasonable reliance on Mr. Adams because of Mr. Douglas’ own stated knowledge of the need to file a NOID.
3)Did the trial judge err in rejecting the “expert” report?
[29] The trial judge did not err in rejecting the “expert” report.
[30] The trial judge provided the following reasons for rejecting the report at para. 9:
The second is that the plaintiff tendered a letter couched as an expert report from a local process server. I dismiss the statements in the letter as firstly nothing more than what that process server might have done. The instructing letter contained closed ended questions and particularized ones as to what that process server would have done. It did not ask with open ended questions what the practice was in these circumstances. Accordingly, I do not give it any weight on the issue of establishing what the industry practice as a whole might be in discerning what duties and report back to the client as to what has or has not been done.
[31] Rule 18.02(2) of the Small Claims Court Rules provides that the trial judge has discretion to accept or reject evidence. Based on the evidence before him, the trial judge had the discretion to reject the report, appropriately exercised his discretion and provided proper reasons for his decision.
4)Did the trial judge err in finding there was no causation of damages?
[32] The trial judge did not err in finding there was no causation of damages.
[33] Mr. Douglas did not demonstrate that Mr. Adams caused the damages suffered by him. To the contrary, it is clear based on the evidence before the trial judge that it was Mr. Douglas’ own failure to act on the facts that he was aware of that caused his loss. This was appropriately addressed by the trial judge in paras 7-8 of his Judgment and Decision.
Costs
[34] Mr. Adams was successful in this matter and argues that he is entitled to receive his reasonable costs. I invited both parties to make submissions on this issue.
[35] The parties each provided me with a Bill of Costs for this appeal. Mr. Adams retained Mr. Simard at an hourly rate of $250. Mr. Simard also had the assistance of an articling-student at an hourly rate of $125 and an assistant at an hourly rate of $45. Costs are listed at partial indemnity rate of $4,093.37 including fee, disbursements and HST.
[36] The over-riding principle in awarding costs is of the reasonable expectation of the unsuccessful party, taking into consideration the factors set out in Rule 57 of the Rules and the Court’s inherent discretion as per sub-section 131 of the Court of Justice Act.
[37] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at 302). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher at paras. 24, 26).
[38] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2. Substantial indemnity costs are the exception to the rule.
[39] I have taken into consideration the factors in Rule 57.01(1), for example, the matter was not complex, the issues were important to both parties and the fact that I did not conclude that the conduct of the parties were inappropriate. I find that the amount claimed is reasonable and I have exercised my discretion to award costs on a partial indemnity basis in the amount of $4,093.37.
Conclusion
[40] Based on all of the reasons noted above, I find that the trial judge did not commit any errors. Consequently, Mr. Douglas’ appeal is dismissed.
[41] I order as follows:
(1) Mr. Douglas’ appeal is dismissed; and
(2) Mr. Douglas must pay Mr. Adams’ reasonable costs in the amount of $4,093.37
(includes fees, disbursements and HST). This amount is to be paid within 30 days of this Order.
Justice M. O’Bonsawin
Released: October 24, 2018
APPENDIX “A”
Court File No. 17-SC-144365
ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA SMALL CLAIMS COURT
BETWEEN:
JONATHAN EDWARD DOUGLAS a.k.a. TED DOUGLAS
Plaintiff
and
FRED ADAMS
Defendant
AGREED STATEMENT OF FACT
THE PARTIES HAVE AGREED TO THE FOLLOWING FACTS IN THIS MATTER:
Background
Focus Graphite Inc. and Gary Economo commenced an action against Ted Douglas for defamation in 2013. Ted Douglas was personally served with the Statement of Claim on August 12, 2013 (Focus Graphite Inc. et al v. Ted J. Douglas, Court File Number 13-57438).
The Plaintiff had been served with a Statement of Claim in the Main Action but had yet to file a Statement of Defence despite the fact that more than 100 days had gone by since he was initially served. The Plaintiff was then self-represented at the time. Pursuant to a letter dated November 27, 2013, Charles Gibson, opposing counsel for the Plaintiff in the Main Action, had given the Plaintiff until November 29th, 2013 to file a Notice of Intent to Defend failing which he would be noted in default (See letter from Charles Gibson at TAB A);
Ted Douglas served Charles Gibson, by fax, a Notice of Intent to Defend (dated September 2, 2013), as well as a rudimentary Statement of Defence (served September 16, 2013).
For a period of time in November 2013, Ted Douglas was represented by Michael Polvere, from Siskinds law firm in London, ON. However, on November 27, 2013, Michael Polvere wrote to Charles Gibson and informed him that his firm no longer represents Mr. Douglas.
Following Mr. Polvere’s letter, Charles Gibson wrote to Ted Douglas on November 27, 2013, and gave him until Friday November 29, 2013 to serve and file a Notice of Intend to Defend (“NOID”) or a Statement of Defence failing which he would be noted in default and Charles Gibson would move for a default judgment.
Ted Douglas searched for a process server in order to comply with Mr. Gibson’s deadline and found Adams Process Servers, owned and operated by Fred Adams.
Fred Adams represented to the public, through his website, that he was a knowledgeable process server and that he could file court documents. Specifically, he advertised his services as follows (SEE WEBSITE SITE, TAB B):
a. “reliable and affordable”
b. “Are you in need of Process Services done the professional way?”
c. “At Adams Process Servers we focus on reliability, accountability and premium costumer service”
d. “When a client requires a process service we perform it promptly and completely”
e. “we provide […] impeccable service”.
Fred Adams had, at that time, been a process server for 2 years having primarily engaged in serving and filing documents in Family Law and some filing in Civil Court. He has since retired from this line of work for health reasons.
Fred Adams does not have any errors or omissions insurance.
Hiring Fred Adams to file a NOID with the civil court in Ottawa
On November 29, 2013, Ted Douglas prepared a NOID and contacted Fred Adams to retained his services to file it at the Ottawa Superior Court of Justice for Court File Number CV-13-57438.
The NOID needed to be filed at the Ottawa Courthouse by the end of the same day.
Fred Adams quoted Ted Douglas a total of $117.63 for his rush same-day services.
Ted Douglas accepted, and on November 29, 2013, Ted Douglas transferred $117.63 to Fred Adams, in advance, for his services, and attached a copy of the NOID to be filed (SEE EMAILS EXCHANGED BETWEEN FRED AND TED, AND CIBC RECEIPT, TAB C)
The events of November 29, 2013
That same day, Mr. Adams attended the Ottawa Courthouse to file the NOID.
Ted Douglas did not know how much the court filing fee was, and did not know he needed an Affidavit of Service (AoS) in order to file a NOID.
Fred Adams did not ask Ted Douglas for the court filing fee of $144 required to file a NOID and he did not ask Ted Douglas for an AoS.
Fred Adams did not know that there was a court filing fee of $144 when filing a NOID and he did not know that an AoS was required when filing a NOID at the civil counter.
Ted Douglas did not provide Fred Adams with an AoS, nor did he instruct Fred Adams to re-serve the NOID.
Fred Adams did not offer to re-serve the NOID in order to be able to swear an AoS.
Fred Adams did not pay the court filing fee of $144 himself on behalf of Ted Douglas, nor did the civil counter clerk request $144 from Fred Adams.
As a result, the NOID could not be filed and it was not filed.
Fred Adams believed it to have been filed by the court. (See Statement of Defence, para 13)
As in the past, the counter clerk would normally advise Fred Adams of any defects in his documents but, on that day, the clerk did not inform Fred Adams of any defects in the document. Fred Adams mistakenly believed that he had filed the NOID because:
a. the civil counter clerk date stamped the document with NOV 29 2013 (SEE NOID TAB D);
b. the civil counter clerk checked his computer, pulled up the file on the computer screen and entered data therein;
c. the civil counter clerk wrote the note on the form regarding the pending dismissal;
d. the civil counter clerk made no further comments to Fred Adams. He was not told that the form was deficient, that he was missing an AoS or that the document was not filed. In fact, he was led to believe that he had filed the document;
Due to his mistaken belief and his reliance upon court staff to point out deficiencies, Fred Adams truly believed he had filed the NOID.
On November 29, 2013, Fred Adams reported back to Ted Douglas, by phone, that he had completed the task. (SEE CHECKLIST, TAB E)
Fred Adams led Ted Douglas to believe that the NOID had been filed.
Fred Adams completed a “Checklist & Tracking Sheet” (TAB E) wherein he indicates:
a. 29-Nov-13: the NOID was received by emailed;
b. 29-Nov-13: the item was prepared/service form filled out;
c. 29-Nov-13: the NOID was taken to the Ottawa Courthouse for filing;
d. 29-Nov-13: the action was completed and the documents were returned to Mr. Adams;
e. 29-Nov-13: Ted Douglas was informed of status (i.e., “completed”) via telephone; and
f. 3-Dec-13, the NOID and invoice were returned to Ted Douglas by regular mail.
Also on the “Checklist & Tracking Sheet”, there is no date and there is no initial for the line item: “Affidavits prepared and sworn”.
Following an exchange of email on December 2, 2013 (described below), on December 3, 2013, Fred Adams prepared and mailed his invoice to Mr. Douglas, which comprised $25 for court filing (which is consistent with his website “Services and Costs” section for filing within the City of Ottawa), $26 for mileage, $53.10 for “delivery of documents requested within 24 hours” and $13.53 in GST [sic]. (SEE INVOICE, TAB F)
December 2, 2013 and the noting in default
- On December 2, 2013, Stefan Cyr (Charles Gibson’s junior at Vincent Dagenais Gibson LLP) emailed Ted Douglas, and reported that “no documents have been filed with the court”. Mr. Cyr once again gave Ted Douglas until December 3, 2013 (the next day) to “serve and file” his Notice in Court. In that letter, Mr. Cyr also instructed Ted Douglas that he was required to serve and file a NOID in Ottawa, ensure that the form complied with the Rules and filing the document at the Courthouse by paying the applicable filing fee accompanied by an AoS confirming that he had served the document on Vincent Dagenais Gibson LLP. Paragraph 2 of the Letter from Stefan Cyr states:
“As a final warning, we ask that you serve and file a Notice of Intent to Defend or a Statement of Defence with the Ontario Superior Court of Justice in Ottawa by Tuesday, December 3, 2013. This includes serving us with a Notice of Intent to Defend or a Statement of Defence which respects the requirements prescribed by the Rules and filing the document at the Courthouse in Ottawa by paying the applicable filing fee accompanied by an affidavit of service confirming that you have served the said document upon us. Failure of which, we will note you in default and will move to obtains Default Judgment against you.” (SEE LETTER FROM STEFAN CYR, TAB G)
Ted Douglas promptly forwarded this email to Fred Adams and inquired further with him. Ted Douglas asked: “Fred – please confirm that at least my Form to Defend 18B was taken to Superior Court in Ottawa Nov 30 2013 and you were advised that Court File No: 13-57438, Focus Graphite et al is being dismissed.” (SEE EMAIL EXCHANGE BETWEEN TED AND FRED, TAB H)
Two hours later, Fred Adams replied with a copy of the Form 18B with the clerk’s notes and date stamp and wrote “Ted, Here is what I got from the Court on Friday.”
In fact, from November 29, 2013 to the date Fred Adams prepared his Defence to this case, he believed that the NOID had been filed successfully. (See Statement of Defence, para 13 and EMAIL EXCHANGE BETWEEN JAMES ANDERSON AND FRED ADAMS, TAB I)
Later, on December 2, 2013, Ted Douglas replied to Stefan Cyr via fax with a copy of the NOID that he received from Fred Adams. (SEE FAX FROM TED TO STEFAN, TAB J)
There was no further communication from Stefan Cyr to Ted Douglas.
As a result of the failure to file the NOID, Ted Douglas was noted in default in Court File Number CV-13-57438 on December 4, 2013. (SEE NOTING IN DEFAULT, TAB K)
Ted Douglas did not follow up with Stefan Cyr or make any further inquiries as to the status of the file (whether he was noted in default or not) or sought to confirm the administrative dismissal (which he thought was forthcoming).
Ted Douglas believed, rightly or wrongly, that the case was going to be administratively dismissed regardless whether the NOID was filed or not, because the Plaintiff (Focus Graphite) had not filed any material.
During his cross-examination in the Main Action when Ted Douglas was questioned by Charles Gibson, the following questions were put to him in the last 2 pages of the transcript (see TAB L):
Q “So it was after you received [the email from Fred Adams with the Form 18B which stated that the case would be administratively dismissed]. So you went back and -- and you were in the position where you said “Well, nobody’s filed anything, so it’s going to get dismissed. So I don’t have to do anything else”, right?”
A “Anything further, correct.”
Q “Okay. So you knew that you hadn’t filed it, you were informed that we hadn’t filed anything, therefore you thought it was just going to go away?”
A “I think that was the thought process at that point.”
Damages in the case at Bar: Costs Thrown Away
On November 12, 2014, Justice Beaudoin presided over an uncontested trial in Focus Graphite Inc. et al v. Douglas (Court File Number CV-13-57438).
On February 20, 2015, Justice Beaudoin released his reasons, awarding $65,000 in damages (see Focus Graphite Inc. v. Douglas, 2015 ONSC 1104) and on March 16, 2015, he released his costs endorsement, awarding $34,288 in costs (see Focus Graphite Inc. v. Douglas, 2015 ONSC 1674).
Justice Beaudoin cut down Vincent Dagenais Gibson LLP’s bill of costs, by more than half.
Ted Douglas took no steps after December 2, 2013 to set aside the noting in default or the default judgment until he learned of the default judgment. Ted Douglas only learned of the default judgment once his income started being garnished in 2015
On January 29, 2016, McNamara R.S.J. set aside the default judgement and the noting in default (See Focus Graphite Inc. v. Ted Douglas, 2016 ONSC 622).
McNamara, R.S.J. ordered “In terms of costs thrown away, in reviewing this matter in its entirety I am satisfied that in all the circumstances the costs awarded and assessed by Beaudoin J. are to be paid in full forthwith”, namely for $34,288. (Focus Graphite Inc. v. Ted Douglas, 2016 ONSC 622, at para 41). It should be noted that this amount attracts post-judgement interest.
Ted Douglas did not appeal McNamara, R.S.J.’s discretionary costs order.
Ted Douglas’ income has been and continues to be garnished by Vincent Dagenais Gibson LLP to pay down the order of costs thrown away.
CITATION: Douglas v. Adams, 2018 ONSC 6329
DIVISIONAL COURT FILE NO.: DC-18-2366
DATE: 2018/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Jonathan Edwards Douglas
Appellant (Plaintiff)
– and –
David Frederick Adams
Respondent (Defendant)
REASONS FOR DECISION
O’Bonsawin J.
Released: October 24, 2018