Court File and Parties
COURT FILE NO.: CV-22-23 DATE: 2024/07/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paula Boutis, Plaintiff and Responding Party
AND:
The Corporation of the County of Norfolk, The Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp and Jason Burgess, Defendants and Moving Parties
COUNSEL: Saba Amad, for the Plaintiff and Responding Party Casey Dockendorff, Laura Freitag, for the Defendants and Moving Parties, The Corporation of the County of Norfolk, The Board of Health for Haldimand-Norfolk Health Unit Clarence L. Bennett, K.C., for the Defendants and Moving Parties, Kristal Chopp and Jason Burgess
HEARD: June 12th, 2024
BEFORE: Justice M.J. Valente
Endorsement on Motions
A. Nature of the Motions
[1] The Defendants bring two motions.
[2] The first motion seeks an order setting aside the certificate of non-attendance, dated March 27, 2024, issued by Network Reporting and Mediation (‘the Certificate’) with respect to the cross examination of lawyer, Mark Heighton (‘Heighton’), on his affidavit sworn February 7, 2024, and filed in support of the Defendants’ motion to compel the Plaintiff to answer certain undertaking refusals on her examination for discovery (‘the Undertakings and Refusals Motion’).
[3] The second motion seeks an order compelling the Plaintiff to answer certain refused questions and questions taken under advisement at her March 27, 2024 cross examination on two affidavits (the ‘Refusals Motion’). The first affidavit is sworn on December 18, 2023 (‘the December 2023 Affidavit’) in support of the Plaintiff’s motion to dismiss the Defendants’ contempt motion (‘the Contempt Motion’) on the basis that the Contempt Motion is frivolous, vexatious, or otherwise an abuse of process (‘the Dismissal Motion)’. The second affidavit is sworn on October 27, 2022 (‘the October 2022 Affidavit’) in response to the Contempt Motion.
B. Factual Background
[4] The Plaintiff was formerly employed by the Defendant, the Corporation of the County of Norfolk (‘Norfolk County’), as the Norfolk County solicitor. The Plaintiff commenced employment in this role on September 3, 2019, and was terminated on a without cause basis on November 17, 2021.
[5] The Defendant, the Board of Health for Haldimand-Norfolk Health Unit (the ‘Board of Health’), is a corporation as prescribed by the Health Protection and Promotion Act, RSO 1990, c. H.7 and acts as the board of health for Haldimand County and Norfolk County.
[6] The Defendant, Kristal Chopp (‘Chopp’), is the former major of Norfolk County. The Defendant, Jason Burgess (‘Burgess’), is a consultant who began working in that capacity to Norfolk County in September 2019.
[7] On February 4, 2022, the Plaintiff delivered a statement of claim, for among other things, wrongful dismissal.
[8] On May 17, 2022, the Defendants filed a statement of defence.
[9] On August 30, 2022, the Defendants delivered the Contempt Motion.
[10] On October 28, 2022, the Plaintiff served, but did not file, her responding record to the Contempt Motion. The Plaintiff’s responding record included the October 2022 Affidavit.
[11] On December 19, 2023, the Plaintiff delivered the Dismissal Motion. The Dismissal Motion record included the December 20223 Affidavit.
[12] On February 9, 2024, Chopp and Burgess delivered the Undertakings and Refusals Motion which included Heighton’s affidavit sworn on February 7, 2024.
[13] On the same day, the Defendants jointly delivered a responding motion record to the Dismissal Motion. The Defendants’ responding record included an affidavit sworn by Caroline De Bruin (‘De Bruin’).
[14] The Dismissal Motion was to be originally returnable on April 3, 2024. Chopp and Burgess proposed that the Undertakings and Refusals Motion be returnable on the same date, but this proposal was rejected by the Plaintiff.
[15] Between January 26, 2024, and February 22, 2204, the parties discussed dates for the cross examination of the Plaintiff and De Bruin. Cross examinations were originally scheduled to proceed on March 6, 2024, but were subsequently rescheduled to be completed on March 27, 2024 to accommodate the vacation schedule of one of the defence counsel.
[16] At a case conference on March 20, 2024, the court, among other matters, adjourned the Contempt Motion, the Dismissal Motion and the Undertakings and Refusals Motion to the June 10, 2024 sittings, confirmed cross examinations were to proceed on March 27, 2024 and provided direction with respect to the manner in which the motions were to be argued.
[17] On the evening of March 20, 2024, the Plaintiff served a notice to cross examine Heighton on his February 7, 2024 affidavit. The date for Heighton’s cross examination was stipulated as March 27, 2024.
[18] In the early morning of March 21, 2024, counsel for Chopp and Burgess advised Plaintiff’s counsel that Heighton was out of the country and would not be in attendance on March 27, 2024, but he would find an available date for the proposed cross examination.
[19] Heighton was in Mexico on a family vacation at the time.
[20] On March 23, 2024, counsel for Chopp and Burgess advised Plaintiff’s counsel that he would provide an April date for Heighton’s cross examination during the first week of April 2024 upon Heighton’s return.
[21] On the same date, Plaintiff’s counsel advised that unless prior to March 27, 2024, an alternative date was set for the Heighton cross examination, her client would obtain a certificate confirming Heighton’s non-attendance on the proposed March 27 date.
[22] On March 27, 2024, the Certificate was obtained, and the Plaintiff and De Bruin were both cross examined.
[23] During the course of the Plaintiff’s cross examination, she refused to answer certain questions and took others under advisement with respect to the December 2023 Affidavit and refused all questions regarding her earlier October 2022 Affidavit.
[24] During the course of a case conference on April 26, 2024, Plaintiff’s counsel took the position that a motion would be required to set aside the Certificate.
C. Motion to Set Aside the Certificate
(i) The Position of the Parties
[25] The Defendants rely on Rule 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the Certificate. It is their position that the court should exercise its discretion to grant the relief they are seeking because it was unreasonable for the Plaintiff to have obtained the Certificate in circumstances where Plaintiff’s counsel unilaterally set the date for the Heighton cross examination, Heighton was out of country on the date chosen and defence counsel was amenable to securing an alternative date.
[26] For her part, the Plaintiff submits that her counsel was reasonable in scheduling the Heighton examination without consulting defence counsel where the March 27th examination date had previously been scheduled, there was urgency to have the cross examinations completed and defence counsel refused to communicate with her counsel. It is also the position of the Plaintiff that the Certificate was a just outcome given defence counsel’s failure to advise the circumstances of Heighton’s absence, the reason for his inability to confirm an alternate examination date prior to the week of April 3 and ultimately his failure to provide a suitable date until the April 26, 2024 case conference. In any event, the Plaintiff further submits that the Certificate should stand because she has sought no relief as a consequence of obtaining it.
(ii) Analysis
[27] I find that the Certificate is to be set aside and that it was unreasonable for the Plaintiff to have obtained it, and later, to have required the Defendants move by motion to set it aside. My reasons are as follows:
Firstly, I agree with the Defendants’ submission that Rule 34.15 provides the court with broad remedial powers in the face of an individual failing to attend an examination, including the setting aside of a certificate of non-attendance.
In my view, the matter before me is distinguishable from the facts in George v. Harris, [2000] O.J. No. 952 (‘George’) upon which the Plaintiff relies. Unlike in George, the Defendants did not have ample, or any opportunity to move to set aside the notice of examination prior to March 27, 2024, and did not ignore several notices of examination prior to taking remedial steps. Once the Plaintiff confirmed her position at the April case conference that a motion would be required to set aside the Certificate, the Defendants delivered their motion materials in less than one month. Based on these facts, the Defendants are not asking me to “re-write history” as Epstein J. found the defendants to have done in George (at para 11).
Whereas I accept the March 27th date for the cross examinations of the Plaintiff and De Bruin had been scheduled for some time, it was disingenuous for Plaintiff’s counsel to have suggested in her April 1, 2024 correspondence to the court (the ‘April 1, 2024 Letter’) that the same was true for the examination of Heighton. The unchallenged evidence is that at no point prior to the delivering of the March 20, 2024 notice to examine Heighton did Plaintiff’s counsel raise the prospect of cross examining him on March 27, 2024 or any other date.
The Plaintiff argues that she was required to move without delay to cross examine Heighton following the March 20, 2024 case conference when, despite her counsel’s objections, the court determined that the Undertakings and Refusals Motion was to be argued at the same time as the Dismissal Motion. This ruling, according to the Plaintiff, created urgency in completing Heighton’s cross examination. There might have been merit to the Plaintiff’s argument were it not for the fact that on March 20, 2024, the Dismissal Motion’s original return date of April 3, 2024 was adjourned and both motions (along with other motions) were scheduled to be heard during the June 10, 2024 sittings, thereby obviating any immediate need to examine Heighton.
I also reject the Plaintiff’s submission that there was no utility in canvassing convenient dates for Heighton’s examination with his counsel because Mr. Bennett had previously advised her counsel that he was not prepared to talk to her. The Plaintiff’s position is founded in a series of email exchanges between Mr. Bennett and Plaintiff’s counsel on February 7, 2024. In one such email of that date in which counsel discussed the proposed cross examination of the Plaintiff, Mr. Bennett advised Plaintiff’s counsel that he was “not interested in a phone call that is positional”. Mr. Bennett did not state that he was not prepared to speak to Plaintiff’s counsel under any circumstances. In any event, given that we live in the twenty first century, there are many forms of alternative communication, namely email and text messages, both of which seem to be the preferred means of communicating for counsel in this age of technology.
Additionally, the Plaintiff’s position that the Certificate was justified in circumstances where Heighton’s counsel did not immediately advise of Heighton’s whereabouts on March 27th, the purpose of his out of country sojourn and the reason for counsel’s inability to confirm an alternate examination date prior to the first week of April lacks merit. Where Heighton was on March 27, 2024, the purpose of his travel and why a new examination could not be confirmed until Heighton’s return to Canada is immaterial in my view. What is relevant is that at the first available opportunity following service of the notice of examination, Plaintiff’s counsel was advised that Heighton was unable to attend the initial date unilaterally chosen for his cross examination because he was out of country. That information, in those and all of the circumstances, should have been sufficient for Plaintiff’s counsel to withdraw the notice of examination and co-operate to fix a mutually agreeable alternate date. Based on the record, there was no reason for Plaintiff’s counsel to have questioned the information she received from defence counsel. Unless there is a sound reason to question the advice of counsel, lawyers, and advocates in particular, need to trust one another; otherwise, our legal system will most certainly fail to serve the public effectively and efficiently.
While it is unfortunate that defence counsel did not propose alternative dates for Heighton’s cross examination until the April 26, 2024 case conference when a date was set, I do not find that the approximate three-week delay from the time that Heighton returned to Canada in scheduling his examination justifies maintaining the Certificate. Plaintiff’s counsel made it clear in her February 7th email exchanges with opposing counsel that unless defence counsel confirmed Heighton’s attendance to be cross examined on either April 2 or 3 2024, two dates on which she was advised that both defence counsel and Heighton were unavailable, a certificate of non-attendance would be obtained, and she did “not intend to further accommodate Mr. Heighton’s schedule”. Based on my review of the correspondence, I conclude that the relationship between counsel had unfortunately deteriorated to the point of acrimony, productive communication was illusive, and a cooling-off period was required.
Finally, I reject that the notion that the Certificate should stand because the Plaintiff has not sought any relief based on the Certificate. In my view, that is not a consideration. Rather this court is to consider whether the Certificate was fairly and justly obtained after considering all of the circumstances. I conclude it was not. I also conclude it would be unequitable to permit the Certificate to remain in place to be used on some future date at the discretion of the Plaintiff and to her advantage.
[28] In sum, for all of the above reasons, the Certificate is set aside.
D. The Refusals Motion
(i) The Position of the Parties
[29] The Defendants submit that the Plaintiff should be compelled to answer the refused questions and those taken under advisement respecting the December 2023 Affidavit and the October 2022 Affidavit. They argue that their questions concerning the merits of the Contempt Motion are proper questions to be canvassed because not only is the Contempt Motion before the court, but in addition, the merits of the Contempt Motion are put in issue in the December 2023 Affidavit delivered in support of the Dismissal Motion. The Defendants submit that the Plaintiff cannot, on the one hand, dispute the merits of the Contempt Motion, and on the other hand, avoid cross examination on her affidavit in support of the Dismissal Motion. The Defendants further submit that the Plaintiff cannot hide behind solicitor-client privilege to avoid answering questions where she has waived that privilege.
[30] For her part, the Plaintiff argues that based on the case conference endorsement of March 20, 2024, the Contempt Motion is not before the court, and therefore, any questions relating to that motion are premature. She further submits that the Contempt Motion, and specifically, her position respecting its merits are not relevant to the Dismissal Motion. In the further alternative, the Plaintiff argues that questions relative to the Contempt Motion are not to be answered within the context of cross examinations relative to the Dismissal Motion; rather those questions are properly confined to examinations undertaken in furtherance of the Contempt Motion. In any event, the Plaintiff submits that based on this court’s ruling in Fischer v. Milo, 2007 CarswellOnt 6144 (‘Fischer’), the Defendants are not entitled to pre-hearing cross-examinations when, as in this case, the essential facts are disputed, and the merits of the Contempt Motion are to be decided on the basis of an oral hearing with viva voce evidence. Finally, it is the Plaintiff’s position that at no time did she waive solicitor-client privilege.
(ii) Analysis
[31] I do not accept the Plaintiff’s interpretation of the March 20, 2023 case conference endorsement. While the endorsement quite reasonably defers the adjudication of the Contempt Motion until a decision is rendered in the Dismissal Motion, the Contempt Motion is a live issue before this court.
[32] I also find that the merits of the Contempt Motion are relevant to the Dismissal Motion. In the Dismissal Motion, the Plaintiff seeks a dismissal of the Contempt Motion by reason that the motion is frivolous, vexatious or otherwise an abuse of the court’s process. Because the Plaintiff has not limited her motion to the procedural steps undertaken by the Defendants after service of the Contempt Motion, the basis of the Dismissal Motion necessitates an examination of the merits of the Contempt Motion. Without the ability to undertake that critical analysis, any decision would lack juristic reason. In recognition of this reality, paragraphs 9 to 15 and 68 to 101 of the December 2023 Affidavit filed in support of the Dismissal Motion reference the Contempt Motion and the events underlying it.
[33] Both the Plaintiff and the Defendants rely on the decision of Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 (‘Rothmans’), as a leading source of guidance for the breath of cross-examinations on affidavits in support of motions. In Rothmans, the court makes clear that cross-examination questions in support of a motion must be relevant to either (a) the issues on the motion; (b) the matters raised in the affidavit by the deponent even if those issues are irrelevant to the motion; or (c) the credibility and reliability of the deponent’s evidence (at para 143). Justice Perell states in Rothmans that the test for relevancy is whether the question has a semblance of relevancy (at para 143).
[34] The Plaintiff submits that the more recent jurisprudence has replaced the standard of a “semblance of relevancy” with one of “relevance” (see: Sanctuary et al v. Toronto (City) et al, 2020 ONSC 4708). I agree. But as Master Haberman points out in Romspen Investment Corporation v. Woods et al, 2010 ONSC 3005:
At the end of the day, regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant (at para 16).
[35] Regardless which threshold of “relevance” is used, I find that questions touching on the facts underlying the Contempt Motion and the merits of that motion could elicit an answer that I, as the justice seized of the Dismissal Motion, could rely on to determine whether the Contempt Motion is to be dismissed as frivolous, vexatious or an abuse of the court’s process.
[36] If I am incorrect, however, in my assessment of the relevance of questions touching on the underlying facts and merits of the Contempt Motion within the context of the Dismissal Motion, I am nonetheless of the mind that such questions are proper questions to be put to the Plaintiff because the Plaintiff chose to raise the underlying facts and merits of the Contempt Motion in the previously referenced paragraphs of the December 2023 Affidavit, and by extension, the October 2022 Affidavit. In this respect, I am guided in part by Perell J. who stated in Rothmans that the case law supports the principle that the scope of cross-examination is expanded:
If a matter is raised in or put in issue by the deponent in his or her affidavit, [and in that instance,] the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court (at para 143).
[37] I have also considered but reject the Plaintiff’s alternative argument that she is entitled to refuse to answer questions relative to the Contempt Motion within the framework of the Dismissal Motion because the Contempt Motion itself is pending and those questions are to be asked within the context of the Contempt Motion examinations. The Plaintiff offered no principled basis or precedent for this position.
[38] On the other hand, the Defendants submit that faced with this same argument in Royal Lepage v. West End Development Corp., (1999) 92 A.C.W.S. (3d) 579 (ON SC), Master Haberman stated at para 63:
Counsel for the responding party has not presented the court with any basis for holding that questions, though relevant, need not be answered if they relate to other litigation pending between the parties. I doubt that such a principle exists.
I adopt the conclusion of Master Haberman.
[39] I have also considered the decision of Brown J. (as he then was) in Fischer v. Milo, 2007 CarswellOnt 6144. In that case, the court considered a contempt motion under the Family Law Rules, O. Reg, 114/99, where the parties had agreed that the motion would proceed by way of an oral hearing with viva voce evidence. In that context the court was asked to determine whether pre-hearing examinations were permitted. The court concluded they were not.
[40] At para 10 in Fischer, the court found that at the time of its 2007 ruling the case law was clear that a contempt motion may proceed summarily by way of a written record or an oral hearing with viva voce evidence and that a hearing on a written record was only available where material facts were not in dispute (at para 10). The court also found that there was no suggestion in the case law that pre-hearing examinations formed a part of the summary procedure because such pre-hearing discovery would be inconsistent with the summary nature of contempt proceedings (at para 15).
[41] The Plaintiff relies on Fischer to submit that she has a right to a viva voce contempt hearing because she asserts material facts are in dispute and any attempt to cross examine her prior to the hearing violates her right to remain silent.
[42] I do not interpret the ruling in Fischer to guarantee the Plaintiff either of the two suggested rights. In Fischer, the parties had agreed to a viva voce contempt hearing. There is no such agreement in the matter before me. Additionally, in 2007, as today, the court makes the ultimate determination as to the manner in which the hearing is to proceed. Furthermore, Fischer does not address any right to remain silent. Rather it merely suggests that pre-hearing examinations are inconsistent with the summary nature of contempt proceedings as they existed at the time.
[43] Since Fischer and the release of the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 (‘Hryniak’), however, the law respecting contempt motions has evolved. Today the court can resolve contempt motions in writing where the material facts are in dispute by virtue of the powers granted to it pursuant to Rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate the credibility of deponents, draw any reasonable inferences from the evidence and order that oral evidence be presented by one or more parties on a particular issue or issues.
[44] Reflecting on Hryniak, this court in Business Development Bank of Canada v. Cavalon Inc., 2016 ONSC 4084, aff’d 2017 ONCA 663 with leave to appeal denied (‘Cavalon’), concluded that it could proceed by way of only a written record to determine a contempt motion where the material facts were disputed. Specifically, the court observed at para 51:
At one time, it was not possible to make a finding of contempt if there was any conflict in the affidavit material: see [Jetco Manufacturing] and [B.E.S.T. Plating]. However, since the decision of the Supreme Court in [Hryniak] I do not think any such hard and fast rule is necessary or appropriate.
[45] The approach in Cavalon has been subsequently and consistently followed where the underlying disputed facts on a contempt motion can be resolved by way of affidavit evidence, cross-examinations and limited oral evidence, or any combination of the three. For example, in Citti v. Klein, 2020 ONSC 2228, McEwen J. decided a contested contempt motion on the basis of affidavit evidence and a cross-examination transcript as did Bielby J. in Chiaramonte v. Chiaramonte, 2016 ONSC 7328. Likewise, in Borer v. Nelson, 2020 ONSC 4139, disputed material facts on a motion for contempt were decided on the basis of affidavit evidence, cross examinations, and limited viva voce evidence.
[46] In short, in light of the evolving law since Hryniak and the amendments to Rule 20, I find no basis to prevent the Defendants from examining the Plaintiff on the underlying facts and merits of the Contempt Motion.
[47] I now turn to the Plaintiff’s reliance on solicitor-client privilege. To qualify for solicitor-client privilege, a communication must be between a client and their lawyer who is acting in a professional capacity as a lawyer, the communication must be given in the context of obtaining legal advice and must be intended to be confidential (see: Descoteaux v. Mierzwinski, [1982] S.C.J. No. 43). Solicitor-client privilege applies to all communications between lawyer and client that entail the seeking or giving of legal advice and that are intended by the parties to be confidential (see: Wintercorn v. Global Learning Group Inc., [2022] O.J. No 3559).
[48] A client may, however, expressly or impliedly waive solicitor-client privilege and the waiver may occur in the absence of any intention to waive the privilege (see: Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123, [2012] O.J. No 716). This court has held that a litigant will impliedly waive solicitor-client privilege by raising an issue for which the nature and availability of legal advice would be relevant evidence (see: Laliberte v. Monteith, 2021 ONSC 4133). For example, in Bentley v. Stone, [1998] O.J. No. 7823, the defendant resisted a motion to enforce a settlement by denying that her lawyer had instructions to settle, and the court ruled that by her denial, she had by implication waived the solicitor-client privilege associated with her communications with her lawyer. In Verney v. Great-West Life Assurance Co., [1998] O.J. No. 932, the issue was whether the plaintiff had improvidently settled her personal injury claim. There, this court found that the lawyer-client communications were put in issue with the consequence of an implied waiver of the privilege.
[49] I find that in certain specific instances in the December 2023 Affidavit, the Plaintiff impliedly waived the privilege that is otherwise intended to keep confidential those communications between she and her lawyer. For example, at para 96 of the December 2023 Affidavit, the Plaintiff states that she was clear with the Defendants that she required a with prejudice withdrawal of the Contempt Motion or that they pursue the motion. Given that the only means by which the Plaintiff communicated with the Defendants was through her counsel, I find that the Plaintiff has put in issue her instructions to her lawyer on the matter of the Defendants’ withdrawal of the Contempt Motion and thereby waived the privilege otherwise attaching to those instructions. Similarly at para 31 of the same affidavit, I find that by referring to the communication with her lawyer in which Plaintiff’s counsel advised that she had agreed to a further day of discoveries, the Plaintiff has put the details of the agreement as communicated to her in issue and they are therefore subject to disclosure.
[50] In light of my assessment of the Plaintiff’s justification for refusing certain questions on her March 27, 2024 cross examination and taking other questions under advisement, I order that within thirty days of the date of this Endorsement the Plaintiff answer:
(a) the following refused questions identified by question numbers: Questions Number: 21,25,26,27,28,31,37,39,50,51,52,53,54,55,56,100, 112,147,149,196 (subject to the questions being in compliance with the principles stipulated in Rothmans, not protected by privilege and otherwise proper), 418,437,448,527,538,544,546,558,579,606-607,622;
and
(b) the following question taken under advisement, identified by question number: Question Number 602.
[51] The Plaintiff is not, however, required to answer the following refused questions and questions taken under advisement as identified by the following question numbers for the following respective reasons:
| Question Number | Reason |
|---|---|
| 61 | Protected by litigation privilege |
| 258 | Not relevant or raised in the October 2022 or December 2023 Affidavits |
| 622 | The letter speaks for itself |
| 623 | Protected by solicitor-client privilege |
| 237, 339 | Both questions taken under advisement have been answered. |
[52] It does not escape me that the Defendants have sought as their primary relief an order dismissing the Plaintiff’s motion seeking a dismissal of the Contempt Motion, and in the alternative, an order striking certain paragraphs of the December 2023 Affidavit. In my view, at this early stage of the proceedings the primary and secondary relief sought are far too draconian and the further alternative relief requested by the Defendants and granted by me is appropriate in the circumstances.
Costs
[53] The parties have asked that I determine the costs of the two motions.
[54] I am grateful to Defendants’ counsel for having uploaded their respective clients’ cost outlines to Caselines in advance of the June 12th hearing as well as to Plaintiff’s counsel for having provided her client’s cost outline following the hearing at my request. I have not been provided with any offers to settle.
[55] Counsel for Chopp and Burgess submits that, if successful, his clients are entitled to their costs on a substantial indemnity basis for the motion to set aside the Certificate and costs on a partial indemnity basis for the Refusals Motion. The cost outline of the Defendants, Chopp and Burgess, record their actual costs in the amount of $17,462 (which I assess at 80 % for costs on the substantial indemnity sale) and partial indemnity costs at $13,785 for both motions and without consideration of disbursements and HST.
[56] The cost outline of Norfolk County and the Board of Health provides for their actual costs in the amount of $15,887.75 and partial indemnity costs in the amount of $9,352.65 for both motions without disbursements and HST.
[57] For her part, and on the same basis, the Plaintiff seeks costs on a substantial indemnity basis in the amount of $6,685.50 and partial indemnity costs of $5,790.00.
Guiding Principles
[58] Section 131(1) of the Courts of Justice Act, RSO 1990, c. C.42, as amended, provides that “subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and that the court may determine by whom and to what extent the costs shall be paid.”
[59] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in Rule 57.01(1), including, in particular:
(a) The principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer; and
(b) The amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in proceeding for which costs are being fixed.
[60] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants (see: Fong v. Chan, [1990] O.J. No.4600 (Ont. C.A.) at para 24).
[61] Justice Perell in the case of 394 Lakeshore Oakville Holding Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (Ont. S.C.J.) reformulated the purposes of the modern cost rules, at para. 10, as follows:
(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.
[62] The usual rule in civil litigation is that costs follow the event, and that rule should not be departed from except for very good reasons (see: Gonawati v. Teitsson, [2002] CarswellOnt 1007 (Ont. C.A.) and MacFie v. Cater, [1920] O.J. No. 71 (Ont.H.C.) at para 28).
[63] Rule 57.03(1) further provides that on a contested motion, unless the court is satisfied that a different order would be more just, the fixed costs of the motion are to be paid within 30 days.
[63] Finally, it is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is “fair and reasonable” having regard to what the losing party could have expected the costs to be (see: Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC).
Discussion
[64] Given that the Defendants were successful on both motions, I am of the view that there is no reason that the costs of the motion to set aside the Certificate prosecuted on behalf of Chopp and Burgess should not be awarded in their favour. Likewise, I find that that the costs of the Refusals Motion should be awarded in favour of the personal Defendants as well as in favour of Norfolk County and the Board of Health given their substantial success. I am also of the opinion that it is appropriate that those costs be fixed by me at this time. The jurisprudence is clear that it is only in “exceptional” circumstances where the generally accepted cost principles should not be applied (see: LGL Consulting v. Essex Condominium Corporation No.1, 2020 ONSC 1503, at para 8). Based on the record before me, I find no such exceptional circumstances to deviate from the general rule.
[65] I also find that it is appropriate to require the Plaintiff to pay the costs of Chopp and Burgess with respect to the motion to set aside the Certificate on a substantial indemnity basis. I am of this mind because I view the Plaintiff’s position as unreasonable. In the circumstances, the Plaintiff should have agreed to set aside the Certificate. The Plaintiff’s intransigence had no factual or legal basis in my opinion and that type of conduct is to be discouraged. This type of litigation strategy serves one purpose and one purpose only: to increase the temperature and cost of what is already high conflict and expensive litigation.
[66] I also do not consider the Plaintiff’s cost outline as particularly helpful in gauging her reasonable cost expectations. It is low when considered in light of the extensive record delivered by Plaintiff’s counsel in response to the motions. Furthermore, the cost outline provides for only two hours of argument whereas counsel appeared before me for the better part of six hours. Whereas I appreciate the moving party bears the burden, and generally invests more time in preparing and arguing its brief, Plaintiff’s counsel’s time is recorded as half of that expended by counsel for Norfolk County and the Board of Health. I find this somewhat difficult to accept given the reasonable time expended by defence counsel and the comprehensive response advanced by the Plaintiff’s counsel.
[67] On the other hand, whereas the Defendants are to be credited for co-operating in the preparation of a joint motion record and factum for both motions, there are irregularities in their respective bills of costs. For example, counsel for Chopp and Burgess has included 18.6 hours of time in preparing for, attending on and addressing issues relative to the cross examination of the Plaintiff. In my opinion, this time is not properly assessable with respect to the motions before me. Additionally, the costs outline for the personal Defendants fails to distinguish between time expended on the motion to set aside the Certificate and the Refusals Motion. I am also of the opinion that the expertise of four lawyers was not required to assist in drafting the motion record on behalf of Norfolk County and the Board of Health.
[68] Having regard to all of the circumstances, the relevant factors in Rule 57.01 and the touchstone considerations of reasonableness and proportionality, I exercise my discretion to assess the costs of Norfolk County and the Board of Health in the amount of $7,500 plus HST and disbursements inclusive of HST in the sum of $2,311.42 and those of Chopp and Burgess in the sum of $9,500 plus HST and disbursements inclusive of HST in the amount of $2,741.27.
Disposition
[69] For all of the above reasons, the following order will issue:
(a) the Certificate is set aside;
(b) within thirty days of the date of this Endorsement, the Plaintiff will provide written answers to the questions refused and taken under advisement during her cross-examination on March 27, 2024, as particulized in paragraph 50 of this ruling.
(c) the Plaintiff shall re-attend to be cross examined at her own expense to answer any questions arising from her answers; and
(d) within forty-five days of the date of this Endorsement, the Plaintiff will pay to:
(i) Norfolk County and the Board of Health their costs of the motions fixed in the sum of $10,786.42, rounded to $10,786; and
(ii) Chopp and Burgess their costs of the motions fixed in the sum of $13,476.27, rounded to $13,476.00
Valente, J. DATE: July 15, 2024