SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: 07-CV-342121
Date: 20120502
RE: Arcor Windows & Doors Inc. v. Andrews et al
Before: Master Glustein
Counsel:
P. Starkman for the plaintiff
P. Du Vernet for the defendant Michael Andrews
P. Stern for the defendants Gary Ward and Rick Ward c.o.b. as Wardco Window Manufacturing
COSTS ENDORSEMENT
[ 1 ] In my endorsement dated March 26, 2012, I asked counsel to provide written costs submissions. I reviewed the costs submissions of the defendants Gary Ward and Rick Ward c.o.b. as Wardco Window Manufacturing (the “Wardco Defendants”) dated April 4, 2012, the costs submissions of the defendant Michael Andrews (“Andrews”) dated April 5, 2012, and the costs submissions of the plaintiff Arcor Windows & Doors Inc. (“Arcor”) dated April 23, 2012. Further, I reviewed the reply costs submissions of the Wardco Defendants dated April 28, 2012, and the reply costs submissions of Andrews dated April 30, 2012. My costs endorsement follows.
(a) Costs are ordered in favour of the defendants
[ 2 ] I agree with the defendants that costs of the motions before me ought to be paid by Arcor to both Andrews and the Wardco Defendants. I rely on the following reasons:
The initial motion by Arcor sought further affidavits of documents from the Wardco Defendants and an affidavit of documents form Andrews, as well as an order to vary Master Haberman’s timetable. There is no evidence that a motion was necessary to obtain the relief concerning the affidavits of documents.
Once Arcor identified the issues on which further production was sought, the Wardco Defendants agreed to produce the documents and that issue was not argued before me.
Similarly, Andrews agreed to deliver his affidavit of documents when requested to do so and the issue was not argued before me. The evidence was that Arcor’s prior counsel did not require an affidavit of documents from Andrews and that Master Haberman’s timetable did not call for delivery of an affidavit of documents from Andrews.
However, the motion to vary the timetable was strongly opposed by the defendants, but only insofar as it sought to have examinations for discovery of the defendants take place before completion of the examination for discovery of the plaintiff. On that issue, I found entirely in favour of the defendants, as the order sought by Arcor would have varied Master Haberman’s order. Any unrelated and ancillary timetable changes for scheduling purposes were not opposed by the defendants and were not at issue before me, as the timetable had to be varied for new dates. The defendants consented to reset the timetable.
The defendants’ motion for an order that (i) Arcor deliver its amended statement of claim, (ii) deliver a proper affidavit of documents, and (iii) answer outstanding undertakings was opposed by Arcor. The defendants were successful on the motion. Arcor’s complaint that the defendants did not serve a chart with the motion record does not affect costs for this particular motion. In this case, Arcor never requested such a chart, and there was no doubt before the court or by Arcor as to what undertakings were at issue.
Arcor’s “amended” notice of motion sought additional relief seeking production of Andrews’ “written employment agreement with Wardco”. That motion failed, as the responding evidence established there was no basis for the motion.
Further, Arcor sought a protective order on its documents but did not refer to the particular documents in the notice of motion. At Mr. Raponi’s cross-examination, he stated that the order sought was for all financial records. It was not until the hearing that Arcor restricted the scope of the protective order to four specified trial balances, with the only redactions being to individual names.
Arcor’s “amended amended” motion sought costs payable by Andrews’ counsel for refusals on a cross-examination, when Arcor’s counsel had taken similar positions when his affiant was cross-examined. The court did not grant the particular costs relief sought, and accepted the defendants’ position that the refusals themselves were generally proper.
[ 3 ] For the above reasons, I find that costs are payable by Arcor to the defendants.
(b) Costs ought to be awarded on a partial indemnity scale
[ 4 ] The defendants sought costs from the plaintiff on a substantial indemnity scale, alleging that the plaintiff and his counsel had engaged in egregious conduct during this motion. I do not agree.
[ 5 ] The motion was very hard fought, with considerable time and expense resulting from the firm positions taken by all parties. However, I do not find that Mr. Starkman or his client engaged in egregious conduct which would justify an award of substantial indemnity costs. Mr. Starkman took positions which the court generally did not accept, but he did so on the basis of a reasoned approach. Consequently, I fix costs on a partial indemnity scale.
(c) Quantum of costs
[ 6 ] I reviewed the costs outlines of all parties. They appeared before me on several occasions, all of which generated voluminous motion records and court materials. Based on the extensive material prepared by all parties, the importance of the issue relating to vary Master Haberman’s timetable, the experience of counsel, and the costs an unsuccessful party would reasonably expect to pay for motions such as those collectively at issue, I fix costs at $15,000 for the Wardco Defendants and $20,000 for Andrews, all inclusive of taxes and disbursements, and all payable by Arcor to the respective defendants within 30 days of this order.
Master Benjamin Glustein
DATE: May 2, 2012