SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-4778 SR
DATE: 2012-07-11

RE: Jeanette Bomhof, Plaintiff

AND:
Eunoia Incorporated and Eunoia2 Incorporated, Defendants

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL:
P. Cicak, for the Plaintiff
B. Kelly, for the Defendants

HEARD: May 23, 2012

COSTS ENDORSEMENT

[ 1 ] In my endorsement released May 30, 2012, I invited counsel to make written submissions on the question of costs.

[ 2 ] Mr. Kelly makes reference to the former Rule 20.06(1), in support of his request for substantial indemnity costs to the Defendants. That Rule provided for a presumed entitlement to substantial indemnity costs to a responding party following an unsuccessful motion for summary judgment. Rule 20.06(1) has been replaced, effective January 1, 2010, with the present Rule 20.06, which does not presume an award of substantial indemnity costs, but rather permits a court to make such an award if a party acted unreasonably or acted in bad faith for the purpose of delay.

[ 3 ] I am not satisfied that the plaintiff, in making the motion, acted unreasonably, or that she acted in bad faith.

[ 4 ] Mr. Kelly also points to an Offer to Settle served by the Defendant on May 15, 2012, providing for the Plaintiff to abandon the motion and for each party to bear their own costs to the date of the Offer and thereafter for costs to the Defendants on a substantial indemnity basis. I find

• 2 -

that the Defendants’ Offer to Settle does not trigger the application of Rule 49.10 because, although it did provide for dismissal (or abandonment) of the motion for summary judgment, it added an additional element of substantial indemnity costs. Moreover, the lack of an element of compromise in the Offer to Settle militates against the exercise of a discretion in favour of substantial indemnity costs (see Data General v. Molnar Systems Group (1991) , 6 O.R. (3d) 409 (C.A.); Walker Estate v. York-Finch General Hospital (1999) , 43 O.R. (3d) 461 (C.A.)).

[ 5 ] This case is similar to the recent case of Thorne v. Hudson’s Bay Co. 2011 ONSC 6010 , which involved the dismissal of a plaintiff’s motion for summary judgment in a wrongful dismissal action, where there was no issue of cause and it was acknowledged by the defendant that the plaintiff would therefore be ultimately entitled to some damages. In that case, Kenneth L. Campbell J., while observing that ordinarily success on a motion for summary judgment would result in a costs award in favour of the responding party , reserved the issue of costs to the trial judge. In my view it would be appropriate to do so in this case as well. Where, as here, the Plaintiff will likely have entitlement to some damages, it would be fair and appropriate to permit the trial judge to rule on the question of the costs of this motion in the context of a global costs consideration following trial. Such a consideration could encompass the effect of the possibility that the Plaintiff’s recovery may not exceed the Small Claims Court limit, as was submitted by the Defendants.

Accordingly, the issue of costs of this motion for summary judgment is reserved to the trial judge.

D.A. BROAD J.

DATE: July 11, 2012