Court File and Parties

COURT FILE NO.: CV-18-609485 DATE: 2023 07 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LESLEY ANN SMITH, Plaintiff - and - CITY OF TORONTO, RENEE ELFASSY and JOHN DOE CONTRACTOR, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: R. Koury, for the plaintiff F. Chorley, for the defendant, Renee Elfassy A. Fishman, for the defendant, City of Toronto (observing)

HEARD: April 19, 2023 (by videoconference)

REASONS FOR DECISION (Motion to Extend and Validate Service)

[1] The plaintiff, Lesley Ann Smith, brings this motion seeking an order validating service of the statement of claim on the defendant, Renee Elfassy, and extending the time to serve the claim. Ms. Elfassy opposes the motion.

[2] The underlying action arises out of an alleged trip and fall that occurred on November 25, 2016 on the sidewalk in front of a house previously owned by Ms. Elfassy. It is undisputed that Ms. Elfassy had not owned the property since June 2012, over four years before the alleged trip and fall. The claim against Ms. Elfassy is based on construction work that was performed on her behalf at the property in 2011 under a building permit issued by the City of Toronto.

[3] The statement of claim in this action was issued on November 23, 2018. Although some attempts to personally serve Ms. Elfassy were made over the years, she was not served with a copy the statement of claim until late June or early August 2022, when served by mail and courier at her current residence. Ms. Smith takes the position that Ms. Elfassy was aware of the claim several years prior to that and had been evading service. Ms. Elfassy denies that she was evading service or that she was aware of the claim prior to in November 2021, when she was served with the statement of claim in a companion action commenced by the City of Toronto that specifically refers to this action.

[4] I am dismissing the motion. In my view, the record does not support a finding that Ms. Elfassy was evading service. To the contrary, reasonable efforts were not made by Ms. Smith to locate and serve Ms. Elfassy within the prescribed six-month service period or in the following years. Ms. Smith has failed to meet her evidentiary onuses on this motion. In my view, the delay in serving Ms. Elfassy has not been adequately explained and there is sufficient presumed and actual prejudice raised Ms. Elfassy, which Ms. Smith has not rebutted, such that an extension in the time to serve the statement of claim should not be granted.

Analysis

Relevant legal framework

[5] After an action is commenced, the plaintiff has the onus of effecting service of the statement of claim in accordance with the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). Subrule 14.08(1) provides a plaintiff with six months to serve a statement of claim. Where that deadline cannot be met, subrule 3.02(1) permits a plaintiff to move for an order extending the time for service.

[6] As provided in subrule 16.01(1), a statement of claim must be served personally or by alternative to personal service. However, if a plaintiff has made reasonable efforts to locate and serve a defendant and cannot effect prompt service by personal or alternative to personal service, then relief under subrule 16.04(1) may be sought. That subrule authorizes the court to make an order for substituted service or, where necessary in the interest of justice, to dispense with service entirely.

[7] Formally invalid service of a statement of claim, such as service other than by personal or alternative to personal service or service that does not comply with the terms of an order for substituted service, may be validated under rule 16.08. To do so, though, the court must be satisfied by evidence that the document came to the notice of the person to be served or the document was served in a manner that would have come to the notice of the person to be served had they not been evading service.

[8] Whether or not to grant an extension of the time for service is a discretionary decision. On such a motion, the court’s focus is generally on the plaintiff’s explanation for delay in serving the statement of claim and whether or not there is prejudice to the defendant from granting an extension order. However, there are no fixed rules or guidelines on when an extension should be granted or refused. Each case should be decided on its facts, focusing on whether the defence is prejudiced by the delay: Chiarelli v. Weins at para. 17.

[9] In Transplatinum v. Ferguson, 2011 ONSC 2543, Master Muir summarized the principles discussed in Chiarelli that are generally considered when assessing whether a defendant would be prejudiced by an order extending the time for service. Transplatinum similarly dealt with a motion to extend service of a statement of claim and to validate service. As set out in that decision, when deciding whether to extend the time for service, the following five principles are commonly considered:

(a) the court should not extend the time for service if to do so would prejudice the defendant;

(b) the plaintiff bears the onus of demonstrating that the defendant would not be prejudiced by the extension;

(c) the defendant has an evidentiary obligation to provide some details of prejudice to it which would flow from an extension of time for service;

(d) the defendant cannot create prejudice by its failure to do something that it reasonably could have or ought to have done; and

(e) prejudice that will defeat an extension of time for service must be caused by the delay.

Validating service

[10] There is no dispute that Ms. Elfassy now has actual notice of the statement of claim. The evidence supports that she received copies of the statement of claim in late June or early August 2022, after they were mailed and couriered to her current residence. Ms. Elfassy concedes that she had become aware of the claim by November 2021, when served with materials from the City for its motion for substituted service of its companion claim commenced against her.

[11] The real dispute on this motion is whether I should extend the time for service of the statement of claim in this proceeding. Ms. Elfassy opposes any extension. In my view, if I grant the extension, then validation should also be granted.

Extending the time for service

[12] My main difficulty with Ms. Smith’s position on this motion is that the evidence does not support her submission that Ms. Elfassy was aware of the action and evading service. Moreover, the record does not support reasonable efforts by the plaintiff to locate and serve Ms. Elfassy during the six-month period before the claim expired on May 23, 2019, or in the years that followed. Once the claim had expired, Ms. Smith waited over two years before seeking relief from the court.

[13] In the context of a motion for substituted service, there is an obligation on the moving plaintiff to show that they have been unable to carry out prompt personal service. The inability to serve a party personally is demonstrated by showing that all reasonable steps have been taken to locate the party and to personally serve them. What is “reasonable” in a particular case depends on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances: Laframboise v. Woodward, 59 OR (3d) 338, 2002 CarswellOnt 1448 (SCJ) at paras. 9-10.

[14] There has been a lengthy delay in serving Ms. Elfassy with the statement of claim. In my view, on the facts of this case, it is incumbent on Ms. Smith to provide a similar explanation to what is required in a substituted service motion addressing why prompt personal service on Ms. Elfassy could not be made and why it took over three and a half years to locate her and serve the claim. In addition to that, Ms. Smith has the onus of demonstrating that Ms. Elfassy will not be prejudiced by an extension.

Explanation for delay

[15] There is nothing before me supporting that Ms. Smith or her lawyers were making earnest efforts to locate Ms. Elfassy to serve her. The evidence filed on this motion supports only modest attempts to find her after issuing the claim and minimal attempts to serve her. Since the chronology of events from the record before me is important to my disposition of this motion, I review it below:

(a) On November 29, 2018, shortly after the claim was issued, an attempt was made to serve Ms. Elfassy at an address in Toronto. The address was one of two addresses that had previously been provided to Ms. Smith’s lawyers by the City. Several notice letters had been sent to the address prior to the claim being issued, without response. The process server’s affidavit of attempted service identified it as a “wrong address”, stating that the address was for a business called “Bartman Plumbing Ltd.”. The affidavit of attempted service furthers states that a receptionist advised the process server that Ms. Elfassy did not work at the location.

(b) Between December 2018 and October 2019, no efforts were made to locate Ms. Elfassy other than sending correspondence to the City’s lawyers asking if they were aware of a current address. The claim expired on May 23, 2019. No steps were taken to address that expiry until this motion was brought.

(c) On October 24, 2019, a residential address search was conducted that identified a new address in Concord. Service attempts were made on November 4 and 7, 2019. The address was confirmed to be an address for “Bartman Plumbing”. The process server’s affidavit of attempted service confirms that, on the first attempt, she was advised by an unidentified individual that Ms. Elfassy was the owner, but was rarely there. On the second attempt, she was advised by another unidentified individual that “Renee Elfassy never works here.”

(d) Nothing further occurred until December 10, 2019, when an ownership search was performed on the Concord address. The search confirmed that the property was owned by Bartman Real Estate Corp. The registered address for service of that entity was the same Toronto address at which service was originally attempted.

(e) Internet searches were subsequently performed looking for Ms. Elfassy. They identified a bookkeeping business owned by a person named “Renee” operating from the same Concord address. The timing of those internet searches is not in evidence, but I presume them to be in or about July 2021 (i.e., over two and a half years after the claim was issued). That is when the telephone number on the website was called and a corporate profile report for the business on the website was obtained. The corporate profile report indicated that Ms. Elfassy was a director and also identified the same two addresses that the City had provided to Ms. Smith’s lawyers prior to the claim being issued.

(f) Nothing further was done until two months later, in September 2021, when two attempts were made to send a copy of the statement of claim by email to the email address on the website for Ms. Elfassy’s bookkeeping business. Delivery of the two emails failed. No further steps were taken.

(g) In November 2021, the City served Ms. Smith’s lawyers with a copy of its motion in the companion action seeking substituted service on Ms. Elfassy at an address in North York and an order extending the time for service of the City’s statement of claim. The motion was heard in writing and granted on January 18, 2022. Ms. Elfassy’s evidence is that she only became aware that this action had been commenced against her when she was served with the City’s motion materials.

(h) The supporting affidavit filed on this motion asserts that, after being informed that the order had been granted, Ms. Smith’s lawyers commenced work on this motion.

(i) In late January 2022, after the order had been issued, Ms. Elfassy retained her own lawyers. The supporting affidavit confirms that Ms. Elfassy’s lawyer advises Ms. Smith’s lawyers of the retainer “within that same time frame.” Based on other email correspondence in the record, that appears to have been done by email sent by Ms. Elfassy’s lawyer on January 24, 2022. The affidavit is silent on whether Ms. Smith’s lawyers responded.

(j) Based on the record before me, nothing further happened until March 15, 2022, when Ms. Elfassy’s lawyer sent an email requesting a copy of the affidavit of service on his client, expressing concerns that service on Ms. Elfassy had not been properly affected and that the time to serve the claim had elapsed. In response, Ms. Smith’s lawyers advised that several attempts to serve Ms. Elfassy had been made and that a motion for substituted service was pending.

(k) On June 23, 2022, a copy of the statement of claim was sent by regular mail and courier to the North York address to which substituted service was authorized in the City’s companion action. That address was confirmed during cross-examination to be Ms. Elfassy’s current residence. The original notice of motion for this motion was also served on Ms. Elfassy’s lawyer the same day.

(l) On June 29, 2022, a process server attempted personal service of the statement of claim on Ms. Elfassy at the North York address. The affidavit of attempted service indicates that an adult male, who refused to provide his name, denied that Ms. Elfassy resided there.

[16] As can be seen from the above, the steps taken by Ms. Smith to locate Ms. Elfassy were fairly limited and quite protracted, extending over a period of nearly three years. They are a far cry from taking all reasonable steps to locate Ms. Elfassy and personally serve her.

[17] No explanation has been provided for why Ms. Smith and her lawyers took no proactive steps to independently search for Ms. Elfassy in the period of November 2018 to October 2019, during which the claim expired. There is similarly no explanation for why internet searches were not performed until July 2021, particularly since they led to locating Ms. Elfassy’s business. Other than one residence search, Ms. Smith did not perform any skip tracer searches, driver’s licence searches, execution searches, bankruptcy searches, PPSA searches, social media searches, or even regional property searches (which would presumably have disclosed her current residential address, if Ms. Elfassy owns the property, since she advised during cross-examination that she has lived there since 2015/2016). Although seemingly not in the record, both sides agree that the City located Ms. Elfassy’s address through a skip tracer. No argument was advanced for why attempting additional searches such as those I have noted was not reasonable in the circumstances of this case.

[18] I accept Ms. Smith’s argument that the COVID-19 pandemic interceded. In my view, though, the extent to which the pandemic excuses inaction is properly guided by O Reg 73/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17 (formerly under the Emergency Management and Civil Protection Act, RSO 1990, c E.9). That regulation suspended limitations periods and all periods of time within steps must be taken for some six months during the pandemic from March 16 to September 14, 2020. However, in my view, when a party asserts impacts from the pandemic after September 14, 2020 (when the regulation was revoked and timelines in all civil litigation resumed), the party must reasonably put forward positive evidence of those impacts. There is no such evidence here.

[19] Ms. Smith also relies heavily on difficulties that the City’s lawyers were having in serving its own statement of claim on Ms. Elfassy in the companion action. In my view, though, whether or not the City was having difficulty serving its own statement of claim on Ms. Elfassy is immaterial to this motion. Ms. Smith cannot discharge her own obligations as a plaintiff to make reasonable efforts to locate and serve Ms. Elfassy by pointing to difficulties encountered by the City in its separate action.

[20] Ms. Smith also submits that the record supports that Ms. Elfassy was evading service. In my view, it does not. Ms. Elfassy’s evidence is that she was not aware of the existence of the claim until November 2021. The basis for challenging that direct evidence is inferences that I am asked to draw based on circumstantial evidence. For example, I am asked to find that Ms. Elfassy was reasonably aware of the claim simply because other mostly unidentified individuals with potential or tangential connections to Ms. Elfassy may themselves have had notice of the claim through the attempts at service. There is no evidence supporting that any of the individuals with whom the process servers spoke relayed the fact of the claim to Ms. Elfassy. There is no evidence that copies of the statement of claim sent to addresses that appear connected to Ms. Elfassy were received. Both her affidavit and cross-examination evidence are consistent in denying having any notice of this claim before November 2021.

[21] Ms. Smith points specifically to the affidavit of attempted service from June 29, 2022, when service was attempted at Ms. Elfassy’s now-confirmed residence. The affidavit of attempted service outlines that an unidentified adult male denied that Ms. Elfassy resided at the address.

[22] I am not convinced that the fact that an adult male at Ms. Elfassy’s residence denied she resided there supports that Ms. Elfassy was herself evading service. The identity of the male is unknown and I was directed to nothing in Ms. Elfassy’s cross-examination where she was asked about him. There is nothing before me supporting that Ms. Elfassy directed the individual to deny that she resided at the residence or that she had any knowledge that he had done so. Other than the fact that he was at Ms. Elfassy’s residence when the process server attended, there is no cogent evidence on the relationship (if any) between the individual and Ms. Elfassy or connecting his actions to any instruction from or direction by Ms. Elfassy. Without that, I am not prepared to construe the actions of an unidentified non-party as an act by Ms. Elfassy to evade service.

[23] On the record before me, I find that Ms. Smith failed to take reasonable steps to locate Ms. Elfassy and has neither explained that failure nor provided any reasonable or adequate explanation for the delay in service.

Prejudice

[24] I am not convinced by Ms. Smith’s arguments that there is no prejudice to Ms. Elfassy if the claim against her proceeds. Ms. Smith bears the onus of demonstrating that Ms. Elfassy’s defence will not be prejudiced by an extension. She has failed to discharge that onus.

[25] The supporting affidavit on this motion is silent on prejudice other than a throwaway statement that “extending time for service will not cause prejudice or delay.” It also points out generally that there will be prejudice to Ms. Smith if she loses the right to pursue contribution and indemnity from Ms. Elfassy.

[26] Ms. Elfassy raises four main bases of prejudice: (i) presumed prejudice from the passage of time, (ii) her loss of construction-related records from the work performed in 2011, (iii) her inability to locate the contractor who performed the construction work, and (iv) the lack of any evidence on documents preserved by Ms. Smith.

[27] With respect to presumed prejudice, the presumption recognizes that memories fade over time and that the expiration of a limitation period gives a potential defendant peace of mind: Estate of Robert William Drury, Sr. v. McLaughlin, 2019 ONSC 6071 at para. 14. Courts have consistently held that the presumption of prejudice increases with the passage of time, particularly where a limitations period has otherwise expired.

[28] I agree with Ms. Elfassy that the length of time since her involvement with the property and since the alleged trip and fall gives rise to a strong presumption of prejudice. The claim against Ms. Elfassy is based on construction work that took place 11-12 years before this motion was argued. Ms. Elfassy has not owned the house abutting the sidewalk where Ms. Smith fell since June 2012. The construction work asserted by Ms. Smith to have caused damage to the sidewalk took place in 2011. Ms. Smith’s alleged trip and fall occurred several years later in November 2016. The claim was issued in November 2018, shortly before the presumptive limitations period expired. Notice of this motion was not served until late June 2022. It is now 2023. Preservation of documents and recollections of witnesses are a particular concern in a case such as this one.

[29] With respect to loss of construction-related documents, Ms. Elfassy’s evidence is that efforts to locate her records from the construction, including the construction contract, have been unsuccessful. As noted above, Ms. Elfassy sold the house and moved elsewhere several years prior to Ms. Smith’s trip and fall. Her records from the construction work are presumed to have been lost or destroyed. However, in my view, the loss of Ms. Elfassy’s records is not prejudice resulting from the delay in serving her. Nothing before me supports that Ms. Elfassy would have been in any different position had she been served within the original six-month period. The record does not support a finding that the loss of Ms. Elfassy’s construction-related documents and records occurred after this claim was issued.

[30] With respect to Ms. Elfassy’s inability to locate the construction contractor, her evidence is that she has no contact information for the contractor. A telephone phone number located for the contractor was called by Ms. Elfassy’s lawyer, but had an automated message advising that the number was not equipped to receive incoming calls.

[31] It is not clear whether the contractor remains in business. Although the telephone number identified through online searches by Ms. Elfassy’s lawyer has been called, the municipal address for the business that was identified has not been visited. I accept Ms. Elfassy’s argument that she does not have the evidentiary onus of proving prejudice. As set out in Transplatinum, a defendant is only required to provide some details of prejudice flowing from an extension. The plaintiff bears the onus of demonstrating that the defendant would not be prejudiced. That said, there is some evidence that the contractor remains listed online as an operating business. There is insufficient evidence before me to find that the contractor is or is even likely out of business and thereby cannot reasonably be located.

[32] With respect to records preserved by Ms. Smith, no proper evidence has been tendered on what, if any, medical or other records have been preserved or remain available that address the allegations in the statement of claim, including that Ms. Smith suffered “serious and permanent personal injuries including, but not limited to, a severe left humeral fracture and injuries to her nose and mouth, together with general tearing and straining of the muscles and ligaments throughout her body.” The failure to tender proper evidence on document retention is significant in this case, particularly given the presumption of prejudice.

[33] There appears no dispute that decoded OHIP summaries have not been preserved. Ms. Smith submits that does not matter. She asserts that pre-accident medical records have been preserved and that they are enough. I have been directed to the decision in Bacchus v. Doe, 2023 ONSC 2061, where La Horey AJ held, at para. 40, that failing to preserve decoded OHIP summaries is not necessarily prejudicial if other sources of pre-accident medical information are available, such as clinical notes and records from treatment providers themselves.

[34] I agree with Ms. Elfassy that Bacchus v. Doe, which is a case dealing with correction of a misnomer, is not directly on point. Ms. Smith’s argument nevertheless has some merit. However, it is unsupported by any evidence of documents that have actually been preserved. There is no evidence before me on what, if any, clinical notes and records or other documents from treatment providers still exist. As already noted, it is not addressed at all in the supporting affidavit filed for this motion. The only “evidence” tendered is copy of Ms. Smith’s draft affidavit of documents, which was uploaded to CaseLines by Ms. Smith’s lawyers as part of the compendium for argument at the motion hearing. The affidavit of documents is not included anywhere in the motion materials.

[35] In my view, the draft affidavit of documents is not properly before me. As set out in subrule 4.05.2(3) of the Rules, a compendium is to contain the excerpted portions of the cases and the evidence to which the party intends to refer during the hearing. It is not intended to be used by parties to put forward new evidence that they failed to tender in supporting affidavits or as part of their motion records. Moreover, tendering new evidence after Ms. Smith had cross-examined on Ms. Elfassy’s affidavit is, in my view, inconsistent with the intent of subrule 39.02(2). That subrule expressly prohibits a party who has cross-examined on an affidavit from subsequently delivering any further affidavit for use at a hearing, without leave.

[36] The evidentiary value of the draft affidavit of documents is also questionable. It has been tendered without any affidavit to explain its contents. Moreover, the documents identified in the affidavit of documents have not been provided. The draft affidavit is not itself evidence of those documents or their contents. I am essentially being asked to accept as true that the affidavit reflects the preservation of relevant documents. Even ignoring that hearsay use of the document, Ms. Elfassy has been afforded no opportunity to review the documents and agree or disagree with Ms. Smith’s assertion that sufficient medical records have been preserved. Had it been tendered in the motion materials, Ms. Elfassy may have opted to cross-examine on it or the documents.

[37] In my view, it would be procedurally unfair to Ms. Elfassy to accept the draft affidavit of documents and consider it in my assessment of prejudice. I was not asked for leave to admit the draft affidavit of documents, but had it been sought I would have denied leave for the above reasons.

[38] I have also been asked to take judicial notice that The College of Physicians and Surgeons of Ontario requires physicians to maintain medical records for ten years. I am not convinced that fact is one for which judicial notice is properly taken. For example, I was directed to no readily available authority for such a requirement. In any event, even if accurate, I would not find the argument convincing on the facts of this case. In my view, whether or not Ms. Smith’s treating physicians ought to have retained their records is not itself sufficient to discharge Ms. Smith’s evidentiary onus regarding prejudice. It was within Ms. Smith’s ability to tender evidence on whether those physicians did, in fact, retain their records and the status of those records. She did not do so.

[39] I find that Ms. Smith has failed to rebut the presumption of prejudice and has failed to meet her onus of establishing that Ms. Elfassy is not prejudiced by an extension of the time to serve the statement of claim.

Relevance of the companion action

[40] Ms. Smith submits that, since the City’s parallel action will be proceeding, it would be overly technical to deny her the right to pursue Ms. Elfassy. Ms. Smith submits that it is not in the interests of justice to be overly technical, pointing to the mandate in subrule 1.04(1) that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[41] I do not view my decision dismissing this motion as being “overly technical”. This motion is about permitting Ms. Smith to continue a claim directly against Ms. Elfassy for damages resulting from her injuries. Any liability that Ms. Elfassy may have to the City in the companion action is not legally the same as direct liability to Ms. Smith.

[42] Moreover, granting this motion would be condoning insufficiently unexplained inaction by the plaintiff and a failure to make all reasonable efforts to locate Ms. Elfassy and serve the claim. It would similarly require me to overlook the complete failure to tender any evidence to support the plaintiff’s arguments that Ms. Elfassy is not prejudiced, despite the established case law clearly putting that evidentiary burden on Ms. Smith. On the record before me, Ms. Smith has failed to discharge her evidentiary onuses on this motion.

[43] In my view, on the totality of the evidence before me, procedural and substantive fairness favours Ms. Elfassy. I am accordingly exercising my discretion to deny Ms. Smith’s request that I extend the time to serve the statement of claim and am dismissing the motion.

Costs

[44] Ms. Elfassy has been entirely successful in her opposition and is entitled to her costs of the motion. She seeks her partial indemnity costs in the amount of $9,770.21, including HST and disbursements. Those costs are approximately $3,000 higher than the partial indemnity costs claimed by Ms. Smith in her costs outline.

[45] I have broad discretion in decision costs pursuant to s. 131 of the Courts of Justice Act, RSO 1990, c C.43 and rule 57.01 of the Rules. Costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant: Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52. The overall objective is fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 71 OR (3d) 291 (CA) at paras. 26 and 38.

[46] Subrule 57.01(1) sets out a non-exhaustive list of factors to be considered by the court in exercising its discretion on costs. Subrule 1.04(1.1) is also applicable. It requires the court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[47] The rates claimed by Ms. Elfassy for the lawyers and paralegal working on this matter are reasonable. Despite Ms. Smith’s criticism of the hours spent, I do not agree that they are excessive and do not view them as disproportionate to the importance of the issues on this motion to Ms. Elfassy. Success for Ms. Elfassy meant a full stop to Ms. Smith’s claim against her. Although Ms. Smith’s costs outline reflects a lower costs claim, despite the rates claimed being higher, that does not mean a higher adverse costs award was beyond reasonable expectations. Given the stakes of this motion, I find Ms. Elfassy’s costs claim to be within reasonable expectations of an unsuccessful party on a motion of this nature.

[48] Had the motion been granted, some of the costs claimed in Ms. Elfassy’s costs outline would more properly be costs of the action, such as file review and communication with outside counsel. Nevertheless, in the circumstances of successful opposition, those costs are, in my view, appropriately claimed at this time.

[49] Having considered the factors in subrule 57.01(1), I fix Ms. Elfassy’s partial indemnity costs of this motion in the amount of $9,500.00, including HST and disbursements.

Disposition

[50] For the above reasons, the plaintiff’s motion is dismissed with costs payable to the defendant, Renee Elfassy, fixed in the amount of $9,500.00, including HST and disbursements, payable within thirty (30) days.

ASSOCIATE JUSTICE TODD ROBINSON DATE: July 21, 2023