Ontario Superior Court of Justice
Court File No.: CV-11-0001-00
Date: 2012 02 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DURABLA CANADA LTD. Plaintiff – and – JUST ENERGY and UNION GAS LIMITED Defendants
R. Steven Baldwin & Keenan Sprague, for the Plaintiff
Adrian C. Lang & Sarah Clarke, for the Defendant, Just Energy
HEARD: February 16, 2012 (via teleconference)
COSTS decision
SCOTT J.
[ 1 ] The plaintiff, Durabla Canada Ltd. (“Durabla”) initially brought a motion for summary judgment which was followed by two cross-motions by the defendant Just Energy Corp. (“Just Energy”) for similar relief.
[ 2 ] While Durabla’s motion was being heard on December 21, 2011, Just Energy through its counsel advised the court that it would not be proceeding with its first of two motions the reasons for which I will deal with in a moment.
[ 3 ] Durabla commenced its action in January of 2011 and pleadings closed in March 2011. Without the exchange of affidavits of documents or the benefit of discoveries, Durabla served its motion for summary judgment a month or so later.
[ 4 ] Thereafter in the lead up to the return of the motion on December 21, 2011, cross-examinations were held on the affidavits of the parties on this initial motion.
[ 5 ] As a result of the cross-examinations, further affidavits were filed and Just Energy brought its cross-motions for similar relief but on different grounds.
[ 6 ] Although all motions were scheduled for the morning of December 21, 2011, there was only sufficient time to hear Durabla’s motion.
[ 7 ] At that time, the defendant withdrew one of its two cross-motions but indicated that the second cross-motion based on the expiry of the limitation period would be proceeding. I reserved my decision of Durabla’s motion to the return date for the cross-motion of February 9, 2012.
[ 8 ] On February 9, 2012 I dismissed the motion by Durabla for reasons given at that time and proceeded to hear the cross-motion. Costs were ordered against Durabla on its dismissed motion.
[ 9 ] On the completion of the cross-motion, I reserved my decision.
[ 10 ] On February 13, 2012, I released that decision and for reasons given, ruled that through no fault of Just Energy, its motion was premature and ordered that it would be allowed a further opportunity to have its cross-motion heard following discoveries.
[ 11 ] Durabla argued that as Just Energy had abandoned the first of its two cross-motions and effectively had its second cross-motion dismissed as premature, it should be denied its costs. It was submitted that at the very least, the parties should bear their own costs.
[ 12 ] Were the reasons for the withdrawal of the first cross-motion and the finding that the second cross-motion was premature determined to be as a result of independent actions by Just Energy or its counsel through no fault originating with Durabla, I would tend to agree with counsel for Durabla. However, it became obvious during the first motion that the plaintiff had initially filed misleading materials and later contradictory evidence was presented in the form of further affidavits by Durabla or through the cross-examinations in a “rush to justice” and to “shoe horn” the facts into an existing authority.
[ 13 ] At its very worst the plaintiffs’ evidence was perjured and, at the very least, it demonstrated a disregard for the veracity of the evidence put before the court.
[ 14 ] Simply put, the strategy adopted by Durabla had the affect of undermining any ability by Just Energy to effectively deal with either the initial motion by Durabla or its own cross-motions. The result was predictable from the outset. Once confronted with these seemingly major inconsistencies, Durabla chose to nevertheless press on with its doomed motion. By so doing, Just Energy was obliged to bring its cross-motions.
[ 15 ] Given all the circumstances, the defendant is entitled to its costs and when considered in the context of all the sub-sections of Rule 57.01 of the Rules of Civil Procedure , there is good reason to award costs on a substantial indemnity basis.
[ 16 ] During the course of our telephone conference, held Thursday, February 16, 2012, regarding costs, the plaintiff took no exception to the hours or disbursements billed by the defendant’s counsel. Nevertheless, I found the amount requested for fees to be somewhat excessive in relation to Belleville and I have reduced the same accordingly.
[ 17 ] Costs are fixed at $27,000.00 for fees together with disbursements of $7,023.27 both inclusive of H.S.T.
Mr. Justice Robert F. Scott
Released: February 24, 2012
COURT FILE NO.: CV-11-0001-00
DATE: 2012 02 24
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DURABLA CANADA LTD. Plaintiff -and- JUST ENERGY and UNION GAS LIMITED Defendants DECISION ON MOTION Scott J.
Released: February 24, 2012