Court File and Parties

BARRIE COURT FILE NO.: CV-16-1106-00A1 DATE: 20220106 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONNA NESBITT, Plaintiff AND: BRIAN JEFFERY, Defendant AND: THE CORPORATION OF THE TOWN OF MIDLAND AND THE COUNTY OF SIMCOE AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO. REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, Third Parties

BEFORE: THE HON. MADAM JUSTICE A.A. CASULLO

COUNSEL: Joshua Bradley, for the Plaintiff, Donna Nesbitt Eli Pullan, for the Defendant, Brian Jeffery Marie Sydney, for the Third Party Her Majesty the Queen in Right of the Province of Ontario, Represented by the Minister of Transportation of Ontario

HEARD: November 18, 2021

Endorsement

Overview

[1] The plaintiff’s action against the defendant Brian Jeffrey (“Jeffrey”) was dismissed by order of Boswell J. dated January 20, 2021. All claims by and against two of the third parties, the County of Simcoe and The Corporation of the Town of Midland, were dismissed by order of Di Luca J. on July 12, 2019.

[2] The only action remaining is Jeffrey’s third party claim against the Ministry of Transportation (“MTO”). The MTO has refused to agree to either a without costs dismissal or to a discontinuance of the third party claim, thus obligating Jeffrey to bring this motion for leave to discontinue the action, and for a determination of costs.

[3] Inexplicably, the MTO brought a cross-motion to dismiss the action with costs for delay pursuant to r. 24.01, or alternatively, by way of summary judgment pursuant to r. 20.

Background

[4] This action arose out of a collision on January 5, 2015, in the Township of Midland. The plaintiff alleged the collision was due to Jeffrey’s negligence. Jeffrey was of the view that road conditions caused or contributed to the collision and commenced a third party claim against the Township of Midland and the County of Simcoe. When Jeffrey was advised that the MTO was responsible for maintaining the roadway in the vicinity of the collision, the MTO was added as a third party. [1]

[5] A representative of the MTO was examined for discovery on February 6, 2019.

[6] Following a not unusual course of productions and requests for clarification and further documents, on February 20, 2020, the MTO provided a fulsome response to a question which had been taken under advisement.

[7] Based on this information, former counsel for Jeffrey determined that liability could not be established against the MTO and offered a dismissal of the third party action without costs by letter dated February 25, 2020. The MTO declined the offer.

[8] The main action settled at mediation on June 2, 2020, without the participation of the MTO.

[9] On July 20, 2020, counsel for the MTO was notified that the main action had settled and asked for the MTO’s position regarding a dismissal of the third party action and costs. On September 23, 2020, counsel once again reached out to determine the MTO’s position and enquired whether a motion would be necessary. The MTO did not reply to either enquiry.

[10] Jeffrey served the MTO with a notice of motion (the First Motion) seeking to dismiss the main action and the third party claim without costs.

[11] On December 3, 2020, the MTO advised it would oppose the motion to dismiss, and would insist on its costs.

[12] Upon being advised by the Court that the First Motion had been improperly commenced, on July 6, 2021, Jeffrey served a new and separate motion in respect of the relief sought herein.

[13] On August 19, 2021, the MTO served a responding motion record, and also a cross motion record. The factum in support of the cross motion alerted Jeffrey for the first time that he had improperly sought relief in the form of a dismissal rather than a discontinuance.

[14] Acknowledging this mistake, counsel for Jeffrey proposed that the parties agree to file a consent discontinuance, and consent to having this motion proceed as a r. 23.05 costs motion. The MTO declined this proposal.

Issue

[15] Both parties agree that the third party claim should be ended - either by way of discontinuance or dismissal - and that the only issue for me to determine is costs.

[16] The MTO insists on its costs. It says that because Jeffrey was travelling at or near the speed limit in a winter storm in white-out conditions, his poor driving, not the road conditions, was responsible for the plaintiffs’ injuries. Further, while there may be a practice amongst insurers to not insist on costs when agreeing to dismiss or discontinue an action, this is not a practice that applies to the MTO. As counsel submitted during argument, the MTO was frustrated by being added to this particular claim.

[17] It is open to the MTO to take the position it does. As Hackland J. confirmed in Kavanagh v. the Estate of Pierrette Feihl, 2016 ONSC 7886, at para. 9:

Nevertheless, it is open to a defendant against whom an action is dismissed, to seek his or her costs to the date of discontinuance as the Defendant Agbavi sought to do here. This might be appropriate where the Plaintiff’s claim was frivolous or vexatious or pursued in bad faith.

[18] However, on the facts of this case, the MTO’s position is fraught with risk. At para. 8 of Kavanagh, Hackland J. wrote:

The general practice in motor vehicle accident cases is that after examinations for discovery are held, plaintiff’s counsel examines the evidence carefully to determine the viability of their case against each named defendant and they consent to a dismissal of the action against any defendant against whom they do not have a viable claim. The Defendant’s insurer normally consents to a dismissal without costs.

[19] A mere five days after receiving the answer to the question taken under advisement at the MTO representative’s examination, Jeffrey offered to discontinue the third party action. Seemingly ignoring this clear signpost that the main action was over, and that Jeffrey was offering to shut the third party claim down, the MTO continued to work on the file. For example, it took no steps to end the retainer with the expert it had engaged just two weeks before Jeffrey’s offer to dismiss. The MTO’s bill of costs is approaching $30,000, fifty percent of which is comprised of the cost of this needless report.

[20] I find it was not reasonable for the MTO to insist on its costs in this instance. There was nothing frivolous or vexatious about Jeffrey’s third party claim against the MTO. Nor was the third party claim pursued in bad faith. Being brought into a lawsuit in instances where road conditions may have played a factor is eminently reasonable. Awarding costs to the MTO to assuage its frustration could serve to cast a chill over future claims against it.

Conclusion

[21] Jeffrey’s third party action against the MTO is discontinued. Draft Order as provided shall issue.

Costs

[22] In the exercise of my discretion pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, partial indemnity costs are awarded in favour of Jeffrey in the all-inclusive amount of $7,959.38.

CASULLO J. Date: January 6, 2022

[1] This required a contested motion, and costs were awarded to Jeffrey.