SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-CV-371894
MOTION HEARD: June 7, 2012

RE: 09-CV-371894 Ugovsek v. City of Toronto et al

BEFORE: Master Joan Haberman

COUNSEL:
McKinley, T. for the moving party, plaintiff
Chiang, J. for the responding parties, the non-City defendants

REASONS

Master Haberman:

[ 1 ] This motion reminds me of a lesson I learned as a young child: two wrongs do not make a right . Here, one party went overboard. Instead of trying to rein him in, the other party simply jumped right in after him. Now that party looks to the court for a lifesaver.

[ 2 ] As is often the case in slip and fall actions, the plaintiff, Ugovsek had difficulty ascertaining who was responsible for the piece of land on which he sustained injuries. His fall took place in March 2008 and by June 2011 it was determined that these defendants were not responsible for the piece of property where all this began.

[ 3 ] Accordingly, on June 16, 2011, plaintiff’s counsel advised that they had instructions to dismiss the action against these defendants on a without costs basis. The response from defence counsel, sent four days later, was as follows:

Further to yours of June 16, 20122, our client will consent to the dismissal of the action against its insured in exchange for costs of $5,500 , payable forthwith by the plaintiff to our firm in trust.

[ 4 ] The quantum was not without meaning. On January 13, 2011, Master Dash ordered the defendants to attend mediation, which the defendant adjuster had refused to do. In addition to ordering his attendance, Master Dash imposed a cost order on the defendants’ insurers -in the amount of $5,500.

[ 5 ] Thus, although there is nothing to suggest that is where this figure came from, it appears clear that the defendants, now feeling vindicated that they were right all along and ought not to have been parties to the action, want those costs back. Of course, it could also be said that had the mediation proceeded earlier, the offer to release these defendants may have been made earlier. We will never know. What is clear however is that this was the starting point for a negotiation which does not appear to have taken place. Had it occurred then, perhaps each of the parties would have absorbed half, files would have been closed and everyone would have gone on with their lives. Instead, we are here now, dealing with this matter more than a year after the offer to dismiss was made, after layers of costs have been added to the piece.

[ 6 ] And so it began. Instead of two counsel getting on the phone to discuss costs, the defendants brought a motion for summary judgment, in the context of which they served the affidavit of Jamie Chiang. This motion is about whether or not Chiang has to make herself available to be cross-examined on her affidavit.

[ 7 ] Without question, each party has now spent in excess of $5,500 preparing for a summary judgment motion and dealing with this one.

Factual background

[ 8 ] As noted above, more than a year ago, it was made clear to these defendants that the plaintiff no longer wished to proceed against them. In the same time frame, the City advised that they were content with this arrangement and that they were prepared to discontinue their crossclaim.

[ 9 ] The issue of costs, however, was the impediment. In a fax dated February 22, 2012, plaintiff’s counsel suggested a way out of the logjam, in the wake of the defendants’ threats to being a motion for summary judgement:

You don’t need to bring a Motion. We are content with a dismissal of your claim. You can proceed to have an assessment of your costs in the ordinary course.

[ 10 ] I am advised that by this time, the costs being sought exceeded $20,000.

[ 11 ] The suggestion to assess costs was an important one, in the context of submissions made by Ms. Chiang on this motion. I will return to this.

[ 12 ] On receipt of this proposal, there were several courses of action open to the defendants. They could have provided their redacted dockets, to demonstrate to plaintiff’s counsel what their costs were. They could have picked up the phone to call plaintiff’s counsel and initiate a negotiation surrounding costs. They could have scheduled an assessment. Any of these routes would have been acceptable and would have kept the parties on the path towards resolution of this impasse, without unduly increasing costs.

[ 13 ] Instead, defence counsel chose a very different –and somewhat puzzling - route. On February 24, 2012, having been told 8 months earlier that the plaintiff was prepared to let them out of the action, the defendants served the affidavit of Jamie Chiang. Although the affidavit was not accompanied by a motion record or notice of motion, it was clear from its content that the affidavit was intended to support a motion for summary judgment.

[ 14 ] This was a completely inappropriate way to move the matter forward as it effectively guaranteed additional costs all around on a far higher level than any of the other available alternatives. As I stated at the outset, one party went overboard.

[ 15 ] If this was not bad enough, the plaintiff then jumped in after them, compounding the mess by seeking to examine Chiang on her affidavit.

The hearing

[ 16 ] These defendants filed no responding materials for this motion, nor was any law filed by either party. At the outset of the hearing, however, Ms. Chiang sought to hand up a responding record and her cases.

[ 17 ] The Rules were amended 2 ½ years ago to ensure that all parties and the court had sufficient opportunity to review materials before they appeared to make oral submissions. The motion was heard on Thursday June 7, so the responding materials ought to have been filed by Friday June 1. I refused to accept them but offered Ms. Chiang the option of an adjournment. She advised she was prepared to proceed without her record.

[ 18 ] I also queried why Ms. Chiang was arguing the motion when it involved her own cross-examination and warned her that she would have to ensure that she did not stray into giving the court evidence orally. She insisted she would be fine, but had to be reminded of my comments several times.

[ 19 ] I also refused to accept Ms. Chiang’s cases at such a late date. Mr. McKinley did not tender any but instead relied on the Rules.

The law

[ 20 ] I am not required to opine as to the availability of a summary judgement motion in the circumstances of this case in order to resolve the issue before me. However, as a starting point for my analysis, this is helpful.

[ 21 ] Rule 20.01(3) states that a defendant can move for summary judgment dismissing all or part of the claim in the statement of claim.

[ 22 ] Doing so in this case is redundant, as the plaintiff has already agreed to dismiss the claim. All that remains in issue is whether the plaintiff must pay these defendants some costs and, if so, how much. Thus, while what the defendants are doing here may be dressed up to look like they seek dismissal, that is not, in fact, what this summary judgment motion is about.

[ 23 ] As a result, as I read the Rule, I do not see that summary judgment is even available in the context of what remains in issue between these parties. In my view, bringing a motion of this kind, in the context of these facts, amounts to an abuse. It is certainly not a proper use of court time, an increasingly limited resource.

[ 24 ] If the motion cannot be brought, no cross-examination is available on the affidavit filed to support it.

[ 25 ] However, as I have overstepped my bounds by dealing with the summary judgment motion (of course my views are my views, and though not binding, I hope they are persuasive), I will return to the issue at hand and deal with it directly.

[ 26 ] Both counsel gave me considerable credit for “knowing the law” with respect to the scope of cross-examinations on affidavits. We agreed that the scope is narrower than that of an examination for discovery, in that the focus must be on the issues that arise in the context of the affidavit and on the motion, itself, rather than extending to encompass the entire action at large.

[ 27 ] I reviewed the Chiang affidavit to see what Mr. McKinley could possibly ask her in cross-examinations and I then asked him what his plan was - why did he need to cross-examine her? What could she possible say that he needed to know in the context of what remained in issue? This was his answer:

o In her notice of motion, she seeks costs on a substantial indemnity basis. I want her to confirm that on the record; and

o I need to know where the costs start from.

[ 28 ] In other words, the sole purpose of this cross-examination is to explore the issue of the costs of the action that have been sought as a condition to the dismissal of the action.

[ 29 ] Bearing in mind that this is not a motion for security for costs, it is clear that costs do not feature as either a legal or factual issue in the summary judgment motion. Costs are simply the impasse to resolution. The issue of costs does not fall within the proper scope of cross-examination on this affidavit, so that if I were to order Chiang to attend, she would be within her rights to refuse to respond to the types of questions plaintiffs’ counsel seek to put to her.

[ 30 ] In short, the defendants have chosen a very odd and overly costly approach to force the plaintiff’s hand. The plaintiff has called their bluff and responded in kind, thereby compounding the problem. These two “wrongs” do not make anything right, as they fail to bring the action closer to resolution is a timely and cost-efficient manner. In fact, the result is quite the opposite.

[ 31 ] The motion is therefore dismissed and each party shall bear their own costs. The defendants began this war but the plaintiffs were up for the battle and happily joined in. Ms. Chiang then had the audacity to state in court that it all could have been dealt with if her clients had assessed costs –a suggestion made to her principle some time ago which he simply ignored.

[ 32 ] In my view, the defendants are ill-advised to move ahead with their motion for summary judgment. It is time everyone put their Rule books down and put this action to bed.

Master Haberman

Released: June 14, 2012