SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-328190-PD3
DATE: 2012/06/22

RE: RONALD SECHON (Plaintiff) – and – BEN ALLISON, BENCORP DEVELOPMENT INC., EDWARD LAWRENCE STONE and JOSELLE HACKSHAW (Defendants)

BEFORE: JUSTICE A. D. GRACE

COUNSEL:
Victor L. Freidin, Q.C., for the Plaintiff

Ben Allison, for the Defendants

HEARD: Written submissions filed.

E N D O R S E M E N T

[ 1 ] I have reviewed the parties’ costs submissions. Mr. Allison’s were sent by email and late. I had asked the parties to address rule 57.05(1). Mr. Allison did. Mr. Sechon did not.

[ 2 ] The problem in this case is this: but for Mr. Allison’s failure to fulfill the terms of the settlement, this action would not have been necessary. The plaintiff was within his rights to continue the proceeding as if there had been no accepted offer: rule 49.09(b). However, to the extent the claim exceeded the Small Claims Court jurisdiction, it was not very strong.

[ 3 ] Rule 57.05(1) is, however, discretionary. The court “may” order that the plaintiff shall not recover any costs where, as here, the recovery is modest. In this case the facts were complex because Bencorp Development Inc., and Mr. Allison conducted their affairs in a fashion which was clandestine. Without hesitation, I conclude that they regarded Mr. Sechon and used him as a dupe.

[ 4 ] The defendants’ failure to do that which they promised, caused this action to continue. They admitted nothing. Mr. Allison’s theatrics were unnecessary and disrespectful. He treated the proceedings and Mr. Sechon as pieces in a game he found highly entertaining.

[ 5 ] Despite the modest recovery, I am of the view that this is one of those cases where costs should be ordered. Mr. Sechon achieved modest success. Mr. Allison could have moved to transfer the proceeding but did not do so.

[ 6 ] The issues were of significant importance to Mr. Sechon. He is clearly a man of his word and his trust in Mr. Allison was evident and misplaced. My displeasure with Mr. Allison and Bencorp Development Inc., is a product of what I have already noted and also their attempt to disparage the reputation of Mr. Sechon in circumstances where his lack of sophistication was patent. At every stage, the defendants have sought to take advantage of Mr. Sechon both before and during these proceedings. Mr. Sechon’s repeated pleas that the defendants do what they promised and extinguish the line of credit and satisfy the amounts owing to Bank of Montreal were callously ignored.

[ 7 ] Furthermore, Mr. Allison failed to fulfill obligations to make disclosure. He sought to introduce documents despite his failure to do so before trial. In short, he was obstructionist and unreasonable.

[ 8 ] In terms of quantum, I note this trial took six days. It should not have taken that long but the scorched earth approach to the action had that effect. That $145,202 in billable time was charged to the file is beyond my comprehension, although I recognize the proceeding originally included two additional defendants. I also recognize Mr. Sechon seeks “minimum costs” of $58,456.05 for fees and $10,213.61 for disbursements.

[ 9 ] I do not know the source of the disbursement claim. Only $1,830.64 is reflected in the May 29, 2012 account, exclusive of GST.

[ 10 ] With respect to fees, it is simply impossible to justify the quantum sought, notwithstanding the comments I have already made. While fueled by Mr. Allison’s conduct, the plaintiff’s approach seemed unfocused. Examinations strayed into areas which were irrelevant. Scores of superfluous documents were indexed, bound and referred to without any apparent purpose.

[ 11 ] The legal theory seemed to be of the hope and prayer variety. While I have little doubt huge amounts of time were spent, periodic pauses and reflection may have reined in a case which was full of effort and thin on issue recognition.

[ 12 ] In short, while Mr. Allison caused and perpetuated an unnecessary trial, the plaintiff’s approach contributed to its undue length and complexity.

[ 13 ] In all of the circumstances, I am of the view that the appropriate all inclusive amount payable jointly and severally by Mr. Allison and Bencorp Development Inc. on account of costs is the amount of $25,000 plus HST comprised of $12,000 for steps preceding trial; $12,000 for the trial and all subsequent steps (post-trial submissions and these submissions) and $1,000 for disbursements. As noted, HST is in addition to that amount.

[ 14 ] Order to go accordingly. I hereby dispense with the need for Mr. Allison or Bencorp Developments Inc to approve an order reflecting the terms of this endorsement.

“ Justice A. D. Grace”

Justice A. D. Grace

RELEASED: June 22, 2012