ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 05-21137
DATE: 2012/05/11
BETWEEN:
HAMILTON HEALTH SCIENCES CORPORATION Plaintiff – and – RESOURCE ENVIRONMENTAL ASSOCIATES LIMITED, TOTAL ENVIRONMENTAL SERVICES CONTRACTING LTD., WATERBOROUGH GROUP LIMITED, JOHN MURPHY, SANDRA MURPHY, ALEX SAFRONSKY, VINCENT GERMANESE, 926215 ONTARIO INC., DENNIS MOFFETT, ROBERT WILLIAM MACGREGOR, SAFETY EXPRESS LTD., GLOBAL ENCASEMENT INC. AND GEORGE KEEFE Defendants
Ross Earnshaw, for the Plaintiff
Donald E. Crabbe, for the Defendants, Waterborough Group Limited, Sandra Murphy, Alex Safronsky, Vincent Germanese, Global Encasement Inc.
Michael M. Buccioni, for the Defendant, Safety Express Ltd.
HEARD: September 16, 2010
RELEASED: May 11, 2012
INTERIM RULING ON COSTS
WHITTEN, J.
[1] By ruling dated January 25, 2012, the court ruled with respect to the motion to strike pursuant to Rule 21.01(1).
[2] In essence the court ruled that the Statement of Claim was deficient in terms of the pleading the torts of civil conspiracy and misappropriation of funds imbued with a trust. With respect to those moving defendants represented by Mr. Crabbe, the court granted the plaintiff leave to amend the Statement of Claim. However, with respect to the defendant Safety Express Ltd., this court found that the pleadings were particularly deficient in terms of pleading the necessary elements of the above-mentioned torts and establishing a factual basis. Accordingly, the claim as against Safety Express was struck in its entirety without leave to amend.
[3] The ruling concluded with the usual invitation for agreement as to costs or submissions thereto. The latter were all received by May 1, 2012.
[4] Because of the January 25, 2012 ruling, the cost positions of Safety Express and the other moving defendants were quite different. Safety Express could legitimately argue for its costs until that ruling, whereas the others were limited to costs pertinent to that particular motion and “costs thrown away”. The latter comes into play as a jurist considers the possibility of amendment pursuant to Rule 26 which evokes the concept of compensatable prejudice. In other words, a court considers what is actually lost to a party as a result of having to respond to a new pleading. Obviously some of the effort extended to the point of the ruling is of utility on a go forward basis, but to the extent that there was wasted effort chasing or responding to a pleading that is no longer, there is an argument for recognition of that which was for nought.
[5] Therefore the two costs positions are quite different (i.e. costs of the action to the point versus costs of the motion and thrown away or of no utility). Having said that, the costs positions of multiple parties in different positions are not totally disconnected. There are comparisons that can be made between the magnitude of the efforts of counsel for each party. Additionally, a court seeks to be equitable in its treatment of parties to avoid lopsided decisions as it were.
[6] HHS, the plaintiff intends to move before the court pursuant to Rule 59.06 to have the court consider allowing the plaintiff to amend its pleadings with respect to Safety Express instead of the present complete striking. Consequently, HHS asserts that a costs judgment relative to Safefty Express is premature. In other words, HHS is saying to the court – wait until after that Rule 69.06 motion, which no doubt will be brought in the near future, as Safety Express may still be in the game. If that is the case, then their costs position approaches that of those defendants represented by Mr. Crabbe.
[7] Safety Express understandably pleads for finality in an action that has gone on for some six plus years. That noted, the concern of the court would be to be as efficient as possible. There is a difference between the costs position of Safety Express and the remaining defendants that could very well become comparable if the plaintiff succeeds in the Rule 59.06 application. That being said, the court does not wish to prolong the efforts on the part of Safety Express, but if its costs are going to be increased by the defence of the anticipated motion or varied as a result of an amendment being allowed, it is probably marginally better that the air be cleared by the Rule 59.06 motion. To do otherwise is to seek creating a lopsided costs award that is then revisited. This is not an ideal situation but sometimes decisions have to be made in which the aggravation to a party is diminished but not eliminated.
[8] The costs submissions of the remaining defendants are not in a vacuum, they are of comparative utility. Yet comparisons go both ways if Safety Express finds itself in the same position after the Rule 59.06 application, its costs submission relative to an amendment may be of utility in assessing the costs of the remaining defendants. Therefore with some degree of reticence, the decision on costs at this juncture is adjourned until after the timely application of Rule 59.06 which is anticipated to be within the next 60 days. Naturally the parties may vary or add to their submissions in response to the decision pursuant to Rule 59.06.
WHITTEN, J.
Date: May 11, 2012
COURT FILE NO.: 05-21137
DATE: 2012/05/11
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HAMILTON HEALTH SCIENCES CORPORATION Plaintiff – and – RESOURCE ENVIRONMENTAL ASSOCIATES LIMITED, TOTAL ENVIRONMENTAL SERVICES CONTRACTING LTD., WATERBOROUGH GROUP LIMITED, JOHN MURPHY, SANDRA MURPHY, ALEX SAFRONSKY, VINCENT GERMANESE, 926215 ONTARIO INC., DENNIS MOFFETT, ROBERT WILLIAM MACGREGOR, SAFETY EXPRESS LTD., GLOBAL ENCASEMENT INC. AND GEORGE KEEFE Defendants INTERIM RULING ON COSTS WHITTEN J. ACRW:km
Released: May 11, 2012