NEWMARKET COURT FILE NO.: CV-10-001191

DATE: 20120418

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LORRAINE LEFEBVRE-JACKSON, NAOMI LEFEBVRE-JACKSON by her Litigation Guardian Lorraine-Lefebvre-Jackson and BRIANNA LEFEBVRE-EDDY by her Litigation Guardian Lorraine Lefebvre-Jackson, Plaintiffs

AND:

MATTHEW GORDON SALT, CHRISTOPHER N. BURTON and UNIFUND ASSURANCE COMPANY, Defendants

BEFORE: McDermot J.

COUNSEL:
J. Vigmond, for the plaintiff – not appearing
D. Dooley, for the Defendant, Christopher N. Burton
B. Murphy, for the Defendant, Unifund Assurance Company

HEARD: By Written Submissions

ENDORSEMENT

Introduction

[ 1 ] On March 15, 2011, I issued my endorsement in this matter dismissing a motion for summary judgment brought by the Defendant, Unifund Assurance Company (“Unifund”). Unifund also requested a ruling as to the costs of another summary judgment motion which had been brought by the Defendant, Christopher N. Burton, which was abandoned prior to the hearing of these motions on January 31, 2010; I determined after argument that Mr. Burton was responsible to pay the costs of that motion. Costs submissions have now been made, and this is my determination as to the net costs of both the summary judgment motion as well as the abandoned summary judgment motion.

[ 2 ] Mr. Dooley on behalf of Mr. Burton requests costs of $5,622.34 as against Unifund. He states that Unifund was “unreasonable” in bringing the motion for summary judgment; as such, Mr. Burton is entitled to substantial indemnity costs.

[ 3 ] Mr. Murphy acknowledges that his client is liable for costs for the summary judgment motion, but states that Mr. Burton’s costs should be in the amount of $2,000 more or less on a partial indemnity basis. He states that the costs of the abandoned motion were much more substantial insofar as he had to examine both Mr. Burton and Mr. Salt in respect of that motion. Those examinations, including travel expenses of the two witnesses, were costly; he states that his client is entitled to partial indemnity costs of the abandoned motion in the amount of $13,137.93.

Discussion

[ 4 ] I will firstly deal with the claim for costs of the abandoned motion, and then the issue of the costs of the summary judgment motion.

(a) Abandoned motion

[ 5 ] I determined in my initial endorsement that Unifund would have the costs of that abandoned motion pursuant to Rule 37.09(3) of the Ontario Rules of Civil Procedure.[^1] Mr. Murphy appears to claim costs of that motion in the amount of $13,137.93 on a partial indemnity basis.[^2]

[ 6 ] A sizeable portion of Unifund’s costs consisted of the examinations of both Mr. Burton and Mr. Salt in aid of Unifund’s position, initially that the motion for summary judgment brought by Mr. Burton be dismissed, but later, and especially arising out of the examination of Mr. Burton, in support of Unifund’s own summary judgment motion which was also dismissed. Mr. Murphy acknowledges that the basis of the summary judgment motion brought by his client was based upon the testimony of Mr. Burton; he also acknowledges that the motion was probably withdrawn largely because of the testimony of Matthew Salt, who had resiled from his original acknowledgment of going through a red light through the payment of the traffic fines, and was now stating that the light was green and that he only paid the fine for convenience’s sake.

[ 7 ] Mr. Murphy does not state that the bringing of the motion was unreasonable; however he does state that it was unreasonable for Mr. Burton to refuse to adjourn the motion sine die so that the examination of Mr. Salt could take place. He says it was also unreasonable for Mr. Burton to have not withdrawn the motion prior to the examination of Mr. Burton as the testimony of Mr. Salt was provided several days prior to the examination of Mr. Burton; that material had made it apparent that the motion was incapable of proceeding. It is the position of Unifund that the motion should have been withdrawn immediately upon receipt of the material containing the excerpts from the Salt examinations; instead, Mr. Dooley failed to then withdraw, failed to obtain the transcripts, and only offered to withdraw the motion after Unifund’s motion for summary judgment was served.

[ 8 ] The basis for my finding respecting the costs of the abandoned motion was because Mr. Dooley could have easily examined Mr. Salt prior to the bringing of the motion; he did not and should have. However, it is also clear that Mr. Dooley was not given notice of the examination of Mr. Salt and was not a participant in that examination. It is also correct that he could hardly have consulted with Mr. Murphy about the date of the motion, as the motion was brought before Unifund had been brought into the proceedings. Although Mr. Murphy states in his costs memorandum that correspondence had been prepared offering a “dismissal without costs” expiring January 10, 2012, this is not referred to in the costs submissions and the only offer that I can locate was a request by Mr. Murphy to adjourn sine die pending examinations for discovery. Although Mr. Murphy states that he was put under an unreasonable time constraint by the refusal to accept the proposal to adjourn sine die, there is no evidence that Mr. Dooley was ever notified that the cross examinations of Matthew Salt were taking place until served with the affidavit of Bruno Roti. As noted by Mr. Murphy, he intends upon utilizing the inconsistencies in the evidence from Mr. Burton at trial to convince a jury that Mr. Burton is at least 1% negligent; the fact that he has extensively cross-examined Mr. Burton respecting the accident will presumably shorten the examinations for discovery to some extent.

[ 9 ] As such, I am disallowing the costs of the examination of Mr. Burton; although these examinations were in response to the motion for summary judgment brought by Mr. Burton, they were largely used in support of the failed motion for summary judgment brought by Unifund. Mr. Dooley was present at those cross-examinations and does not claim his costs of attendance notwithstanding the dismissal of that motion. According to Unifund’s counsel, those examinations are intended to be used at trial in any event and accordingly may be claimed as part of the costs of the trial.

[ 10 ] Accordingly, I am allowing Unifund costs of the examination of Matthew Salt as well as estimated costs of the preparation of the affidavit of Bruno Roti served after the examination of Mr. Salt. Presumably, the costs of the preparation of this affidavit are included in the 8.9 hours spent on preparation of materials “in advance of and immediately following cross examination of Burton;” there were other materials prepared by Unifund. I am allowing a small counsel fee as the argument of the issue of the costs of the abandoned motion was a small part of argument on that date and the major issue argued was the summary judgment motion brought by Unifund which was dismissed. I am allowing a portion of the disbursements for travel as I assume that was for Matthew Salt being brought to Toronto for his examinations; I am also allowing a portion of the costs of the reporting service.

[ 11 ] Costs of this motion are awarded on a partial indemnity basis; there is no evidence that, at the time, the bringing of the original motion was unreasonable, and there was no offer to settle made by Unifund.

[ 12 ] Accordingly, Unifund will have its costs of the abandoned motion on a partial indemnity basis in the amount of $2,000 plus $1,000 in disbursements inclusive of HST for a total costs award of $3,000, to be set off against the costs award in favour of Mr. Burton as discussed below. The costs of the examination of Mr. Burton are in the cause.

(b) Costs of Unifund’s Summary Judgment Motion

[ 13 ] As noted above, Mr. Dooley requests costs of Unifund’s unsuccessful summary judgment motion on a substantial indemnity basis in the amount of $5,622.34. It should be noted that, as far as I can see, the costs of the cross-examination of Mr. Burton, on which Mr. Dooley attended, were not included as part of the costs of the motion.

[ 14 ] Mr. Dooley notes that Rule 20.06 provides that costs should be awarded on a substantial indemnity basis if “[t]he party acted unreasonably by making… the motion”. He states that, based on the credibility issues raised in the examinations of both Mr. Burton and Mr. Salt, it should have been obvious that the motion for summary judgment would not succeed and as such, the motion was brought unreasonably. It was obvious to him and he eventually abandoned his client’s motion for summary judgment.

[ 15 ] Mr. Murphy argues that it was not apparent that the motion was brought unreasonably. He states that his client “will have no difficulty in impeaching Burton at trial when he then claims to know the rules of the road”. He states that he has seen “few cross examinations where a defendant like Burton will admit to so many errors or reverse his testimony.” He finally states that, “[w]hile a jury might find Burton at zero percent at fault, we submit that those juries are far fewer in number than juries that would find Burton at least 1% at fault based solely on his own contradictory evidence.” Presumably, these are the reasons that Mr. Murphy submits that the motion was properly and reasonably brought.

[ 16 ] As set out in Smith v. Waterfall (2000), 50 O.R. (3d) 481 (C.A.) at para. 20, where a motion for summary judgment is fact based as in the present case, “the onus rests on the unsuccessful moving party to establish the motion was reasonably brought.” The court must determine whether it would be clear to the moving party as to whether there was no genuine issue for trial; if the moving party does not satisfy me that it was clear that a genuine issue existed for trial, then costs should go on a substantial indemnity basis.

[ 17 ] In the present case, Unifund’s counsel has not met that onus. His submissions appear to be a re-argument of the case for summary judgment; he states that it is reasonable that the credibility problems of the Defendant, Mr. Burton, prove that it was reasonable for the motion to be brought. With respect, those credibility issues are exactly why a trial was necessary. The fact that this witness may be impeached at trial is not an automatic ground which would make it clear that there was no issue for trial on whether that witness was liable, even to the extent of 1%; that in fact makes it clear that a trier of fact needs to hear that evidence in order to come to a conclusion as to the apportionment of liability.

[ 18 ] The Defendant, Burton, shall have his costs of the summary judgment motion on a substantial indemnity basis in the amount of $5,622.34, which is an amount that I find to be reasonable, again considering that the costs of the examination of Mr. Burton was not included in that amount. No disbursements are claimed or requested.

Award

[ 19 ] There will be a net award of costs payable by Unifund to Mr. Burton in the amount of $2,622.34, payable within 30 days of the date of this endorsement.

McDERMOT J.

Date: April 18, 2012

[^1]: R.R.O. 1990, Reg. 194
[^2]: It was somewhat confusing as to what costs were being claimed by Mr. Murphy on behalf of his client, Unifund. At one point, Mr. Murphy states in his submissions that he is requesting costs of $10,500 plus disbursements of $2,000 for the examinations of both Mr. Burton and Mr. Salt; later he states that he is requesting “between $8,000 in costs/$1,300 in disbursements to $10,500 costs/$2,000 in disbursements” for the entire motion, which I presume is net of the costs of the dismissed summary judgment motion.