ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-49259
DATE: 2012/02/14

BETWEEN:

TPG Technology Consulting Ltd. and Donald Powell
Plaintiffs/Responding Parties

– and –

Her Majesty the Queen in Right of Canada as Represented by the Minister of Industry Canada and as Represented by the Competition Bureau of Canada, John Pecman, Sheridan Scott and Stephen Fitzpatrick
Defendants/Moving Parties

Charles M. Gibson and Ian Houle, for the Plaintiffs/Responding Parties

Alain Préfontaine, Michael Ciavaglia, and Alex Kaufman, for the Defendants/Moving Parties

HEARD: Written Submissions

DECISION ON COSTS

KERSHMAN J.

[ 1 ] The Plaintiff seek its costs for an abandoned motion under rule 21.01(2)(a) for leave to file evidence in response to the Defendant’s motion to strike portions of the Plaintiff’s Statement of Claim on a substantial indemnity basis in the amount of $34,259.00. The Defendant seeks its costs of the Plaintiff’s abandoned motion in the amount of $3,633.94.

[ 2 ] The Plaintiff’s action includes damages for defamation and abuse of public office. At the time of the motion the Defendant had not delivered a Statement of Defence although it had filed a Notice of Intention to Defend. The Defendant launched a motion to strike portions of the Plaintiff’s claim, in part under rule 21.01(1)(a), and in part on the grounds that the words complained of by the Plaintiff are true. No evidence is admissible on such a motion without leave (rule 21.01(2)).

[ 3 ] The Plaintiff considered it needed to file evidence in the form of 27 documents on the motion in order to successfully defend the allegations made in its Statement of Claim. It launched a motion for leave under rule 21.01(2). The Defendant opposed the motion for leave. When the Defendant delivered its factum, it abandoned a portion of its motion in which it claimed that the words complained of were true. The Plaintiff considered that in light of the change in position by the Defendant it did not need to proceed with its motion for leave to file evidence in response to the Defendant’s motion. It thereafter sought its costs. The Defendant contends that the Plaintiff was premature in bringing its motion for leave and ought to have waited for the Defendant’s factum.

[ 4 ] Motions for leave are rarely granted because the scope of the rule is limited to the state of the pleading or jurisdictional issues raised by the pleading. If in fact the moving party is intending to challenge a portion of a pleading on evidentiary grounds, then it is using the wrong rule. As set out by Binnie J. in Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 SCR 141 (SCC) at para. 32 :

It is the practice in Ontario for the motions court to receive evidence pertinent to the jurisdictional issue, such as a copy of the collective agreement (see the cases cited in para. 29), or other affidavit evidence (Leufkens v. Alba Tours International Inc. (2001), 53 O.R. (3d) 112 (S.C.J.), and, on the issue of capacity, S. (J.R.) v. Glendinning (2000), 191 D.L.R. (4th) 750 (S.C.J. Ont.)), but it was not appropriate for the appellant to attempt to turn a jurisdictional challenge under clause 21.01(3)(a) into a mini-trial on a disputed, central question of fact. If the appellant was of the view that the pleading of a pre-employment contract was a sham and raised no genuine issue for trial, it ought to have moved for summary judgment pursuant to rule 20.01. In that case, while the onus would have been on the appellant as the moving party to establish the absence of a genuine issue for trial, each side would have been required to "put its best foot forward" (Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, per Sharpe J., as he then was), ...

[ 5 ] Actions of this nature are difficult and complex. Tactical and strategic decisions concerning the progress of this type of action frequently have greater consequences on the ultimate outcome than might otherwise be the case. Having said that, claims for costs are one of the few ways in which the parties can attempt to remind the other party of the consequences of their tactical decisions.

[ 6 ] When the Defendant changed its position on its motion and abandoned its rule 21.01 argument that the words complained of were true, then it made the Plaintiff’s motion for leave moot, since the balance of the grounds in the Defendant’s motion to strike were based solely on the pleading and would not permit nor require the filing of evidence. The Defendant chose to oppose the Plaintiff’s motion for leave before it changed its position.

[ 7 ] The Plaintiff’s motion for leave had little chance of success because the Defendant’s position in its Notice of Motion (that the words complained of were true) had no chance of success under rule 21. That is not the purpose of the rule.

[ 8 ] This Court finds that the Plaintiff’s motion was reasonable in its attempt to respond to that portion of the Defendant’s motion concerning the final ground in its Notice of Motion. When the Defendant delivered its factum it became clear to the Plaintiff that it no longer required or perhaps would be entitled to leave. The Defendant presumably realized at that point that it was using the wrong rule. The Plaintiff is entitled to its costs.

[ 9 ] I find the Plaintiff’s claim of $34,259.00 for costs is excessive, even while noting that the Defendant elected to oppose the motion, thereby driving the costs upwards. No reasonable basis is advanced by the Plaintiff for an award of substantial indemnity costs. The Plaintiff is entitled to their reasonable costs on a partial indemnity scale.

[ 10 ] The Bill of Costs has been reviewed. The Court finds that the hours charged of 124.30 are high and should be reduced. The matter involved is reasonably complex and the issues were very important. Having regard to the analysis of the factors in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), this Court fixes the Plaintiff’s costs at $15,000.00 inclusive of disbursements and HST.

[ 11 ] Order accordingly.

Mr. Justice Stanley Kershman

Released: February 14, 2012