SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 10-49085A1
Date Heard: June 05, 2012

RE: Canadian Medical Association

v.

Just Energy L.P. and Glen Lancaster and Johnson Controls L.P.

BEFORE: MASTER P. E. ROGER

COUNSEL:
Susan Brown, for the Plaintiff and Third Party (Moving Parties)
Email: Susan.Brown@fmc-law.com
Ph: (613) 783-9658 Fax: (613) 783-9690

Adrian C. Lang, for the Defendants (Responding Parties)
Email: alang@stikeman.com
Ph: (416) 869-5653 Fax: (416) 947-0866

E N D O R S E M E N T

[ 1 ] This was a motion brought by the Plaintiff and Third Party to amend the amended amended Statement of Claim to plead an alternative theory of liability in negligence for negligent hiring and supervision, and to settle the Discovery Plan in respect of the scope of documentary and oral discovery.

[ 2 ] My decision went out on June 20, 2012, and can be found at 2012 ONSC 3524 . This endorsement deals with costs of the motion as the parties could not agree.

[ 3 ] I allowed most of the amendments sought by the Moving Parties but not all. I allowed all of the outstanding documentary and discovery requests.

[ 4 ] I have reviewed the written submissions delivered by both parties as well as relevant authorities cited by the parties, including the factors outlined at Rule 57.

[ 5 ] I do not accept the Defendants’ alternative arguments that they should either be entitled to costs or that there should be no costs or that costs for this motion should be in the cause. I am of opinion that costs should, in the circumstances of this case, follow the result and be allowed to the Moving Parties on a partial indemnity basis, in an amount that is both reasonable and which takes into account the slightly divided result.

[ 6 ] Although I allowed the amendments from the most recent version of the amended amended statement of claim provided to the Court the morning of the motion, I note, only for purposes of this endorsement as this is argued by the Defendants, that I would have allowed the amendments that were allowed on the previous version of the amended amended statement of claim if the most recent version had not been provided. No objection was made at the motion to my considering that most recent version and I felt best to use the most recent version for purposes of the Court’s disposition. I do not accept the Defendants arguments made on that point for purposes of costs.

[7] However, I do accept, from the Defendants’ arguments, that had the portions of the amendments which were not allowed by this Court not been sought by the moving parties, this might have impacted how the Defendants reacted to this motion, at least to the extent of allowing a reduction to the costs sought by the Moving Parties. I will allow a 10% reduction for this.

[8] It is difficult to do precisely, as the amounts sought for costs are not itemized, but I will remove from the Bill of Costs amounts that in my opinion represent tasks that relate not to the motion but to matters which either pre-date the motion or which would have been incurred even if the Defendants had consented to the proposed amendments. This would include, for example, the parties’ initial discussions over the Discovery Plan and the drafting of the amended amended statement of claim. These costs should remain in the cause to be dealt with either when this matter is settled or decided.

[9] The amounts sought by the Defendants in their Costs Outline of $8,355.00 (partial indemnity fees) and of $12,532.50 (substantial indemnity fees) provide some assistance, recognizing that the costs of a moving party may be expected to exceed those of the responding party. By comparison, the amount sought for fees by the Moving Parties is of $19,821.50 on partial indemnity basis ($28,845.00 on a substantial and $40,763.00 on a full).

[10] Considering the above, starting with the amount sought for fees of $19,821.50, I subtract $7,500.00 both for amounts that in my opinion represent tasks that do not relate to the motion and to arrive at an amount that I consider reasonable in the circumstances (and arrive at $12,321.50). From that amount I subtract 10% to arrive at $11,089.35 for fees. For disbursements, I subtracted $550.00 from online searches and library charges (and arrive at $1,335.64), from which I subtract 10% to arrive at $1,202.08 for disbursements.

[11] Consequently, the amounts allowed for the costs of this motion to the Moving Parties are $11,089.35 for fees plus applicable HST and $1,202.08 for disbursement plus applicable HST, payable by the Defendants within the next 30 days.

Master Pierre E. Roger

Date: June 27, 2012