Court File and Parties

COURT FILE NO.: CV-11-442307, CV-13-488119, CV-13-488659, CV-13-488748 DATE: 20181010 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC., and 876947 ONTARIO LIMITED Plaintiffs – and – EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY, RENZO BENOCCI, MARK VANDERLAAN, MANON BOMBARDIER, GORDON OWEN and ATTORNEY GENERAL OF CANADA Defendants

Counsel: Vilko Zbogar, counsel for the Plaintiffs J. Dais-Visca and Wendy Wright, counsel for the Defendants

READ: October 10, 2018

COSTS ENDORSEMENT

F.L. MYERS, j.

[1] The defendants moved to dismiss these four actions due to the failure of the plaintiffs to pay into court on July 1, 2018 the sum of $130,000 as security for costs and other alleged breaches of interlocutory orders. The plaintiffs cross-moved to vary or rescind the order requiring them to post security for costs or, alternatively, for an extension of time to post the security.

[2] By order dated September 21, 2018, for reasons reported at 2018 ONSC 5572, the claims made in two of the actions by the plaintiff Patrick Whitty were dismissed with costs reserved pending the outcome of remaining proceedings. The corporate plaintiffs were granted until October 31, 2018 to post the outstanding installment of security for costs. The defendants were granted leave to move without notice to dismiss the actions if the corporate plaintiffs fail again to post the security for costs by the due date.

[3] Both sides claim victory. The defendants succeeded against Mr. Whitty and fended off the other plaintiffs’ efforts to avoid the security for costs order. They seek costs on the basis that in these four case previously Nordheimer J. (as he then was) made reference to the policy that costs may not follow the event where a party is granted an indulgence. See 2014 ONSC 6927 at para. 4. The defendants ask for some or all of their costs to be calculated on a substantial indemnity basis in light of the plaintiffs’ continued procedural misconduct.

[4] By contrast, the corporate plaintiffs argue that they succeeded in varying the schedule for the payment of their security for costs. They also fended off a number of allegations that they breached orders in support of the defendants’ request that the actions be dismissed.

[5] My initial inclination was that the defendants were on balance the more successful parties. The motion to vary the security for costs was the second time that the plaintiffs had sought to avoid that order. The grounds and evidence advanced met none of the applicable tests or bases for the relief sought. The extension granted was an indulgence to make clear to the corporate plaintiffs the stark consequences that they face if they do not comply. However, the plaintiffs have now disclosed their offer to settle dated August 26, 2018. The plaintiffs offered to settle on the basis that they would pay $65,000 in security for costs by Nov. 9, 2017 and another $65,000 (or any lesser sum remaining if the court decreased the quantum of security for costs) by January 25, 2019. While the plaintiffs did not beat their offer, it was a reasonable assessment of the outcome of their motion.

[6] The disclosure of the existence of a reasonable offer to settle altered my assessment of what was really in issue before me and the relative success of the parties.

[7] In refusing the plaintiffs’ offer, the defendants were rolling the dice hoping the court would dismiss the actions based on their allegations of breaches of orders. They did not succeed as against the corporate plaintiffs. The defendants’ most serious allegation was not made out although the issue raised has not been decided on the merits as yet.

[8] In all, in my view, both sides engaged in expensive overkill. The plaintiffs should have sought a brief indulgence and the defendants should have agreed. Instead, the plaintiffs moved to set aside the order without any basis to do so. The defendants moved to dismiss the actions on procedural grounds without a compelling basis to obtain the ultimate relief.

[9] Parties do not need to bring motions claiming excessive relief to get the court to land in the middle. They can just agree to the reasonable mid-ground that is apparent to all at the outset. [1]

[10] Cooperating on process matters is not weakness. Rather, cooperation is enlightened self-interest. It moves the action forward more efficiently and affordably with the real contentious issues resolved satisfactorily for all sides. How are the parties better off having spent tens of thousands of dollars and losing several months to get to the obvious middle-ground?

[11] In this instance, it seems to me to be fair and reasonable that the parties each bear their own costs.

F.L. Myers, J.

Released: October 10, 2018

Footnotes

[1] The term entitling the defendants to move to dismiss the action if the plaintiffs fail again to post security on time is a standard enforcement mechanism when an indulgence is granted. It too did not need a separate motion. Similarly, the dismissal of Mr. Whitty’s personal claims has minimal real effect. His damages were derivative and duplicative of the corporate plaintiffs’ losses plus, possibly, an uneconomically modest defamation award.