ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-CV-426377CP
DATE: November 14, 2012
BETWEEN:
JEFF ROTHMAN and MOSHE ROTHMAN
Plaintiffs
– and –
KABA ILCO CORP., KABA CORPORATION, KABA FINANCE CORPORATION, KABA BENZING AMERICA INC., KABA U.S. HOLDING LTD., KABA DELAWARE, LLC, KABA AG and KABA HOLDING AG
Defendants
Megan B. McPhee and Aris Gyamfi for the Plaintiffs
Angus T. McKinnon for the Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – COSTS
[ 1 ] This is a costs endorsement for four motions that were never argued.
[ 2 ] The Defendants, Kaba Ilco Corp., Kaba Corporation, Kaba Finance Corporation, Kaba Benzing America Inc., Kaba U.S. Holding Ltd., and Kaba Delaware LLC (collectively, “Kaba”) seek the costs of four motions; namely: (1) Kaba’s un-argued motion to strike portions of the Statement of claim; (2) the Plaintiff’s un-argued motion for a pre-certification notice to the proposed class; (3) Kaba’s un-urgued motion for a sealing order; and (4) Kaba’s un-argued motion to inspect documents referred to in the Statement of Claim.
[ 3 ] On May 12, 2011, this action was commenced by Statement of Claim.
[ 4 ] On May 4, 2012, the Plaintiffs delivered a Proposed Amended Statement of Claim, and on May 25, 2012, Kaba delivered a Notice of Motion to strike various portions of the pleading.
[ 5 ] On June 19, 2012, in response to the motion to strike, the Plaintiffs delivered a Second Proposed Amended Statement of Claim and a few days later, on June 22, 2012, they delivered a motion record seeking an order that the proposed class receive a pre-certification notice.
[ 6 ] On July 3, 2012, Kaba requested production for inspection of the express warranty referred to in the Plaintiff’s pleading.
[ 7 ] On July 19, 2012, Kaba delivered its responding material to the pre-certification notice motion. It also brought a motion for a sealing order, which motion proceeded as an unopposed hearing in writing. I granted the sealing order on July 24, 2012.
[ 8 ] On August 8, 2012, Kaba requested production for inspection of alleged representations referred to in the Proposed Amended Statements of Claim.
[ 9 ] Meanwhile, the revised pleading addressed some but not all of Kaba’s objections to the pleading, and on September 14, 2012, the Plaintiffs delivered a third Proposed Amended Statement of Claim. The third iteration of the pleading left one outstanding objection, and the parties agreed that the remaining issues would be dealt with as part of the Certification Motion. In the result, Kaba’s motion to strike was never argued.
[ 10 ] Kaba still sought production of the documents referred to in the Plaintiffs’ pleading, but the Plaintiffs refused to produce the requested documents for inspection on the grounds that they were not needed in order for Kaba to plead.
[ 11 ] On August 31, 2012, at a Case Conference, I directed that if the Plaintiffs did not produce by September 14, 2012 documents referred to in the Statement of Claim as constituting warranties or representations, the Defendants may bring a motion for their production.
[ 12 ] On September 13, 2012, the Plaintiffs provided a copy of the express warranty but maintained their refusal to produce the requested representations and took the position that the request lacked specificity.
[ 13 ] As a result of the Plaintiffs’ refusal to produce the documents for inspection, Kaba delivered a motion record for a motion to inspect. The motion was returnable on September 25, 2012.
[ 14 ] On September 21, 2012, the Plaintiffs provided copies of the representations requested for inspection. As a result, the motion for inspection was withdrawn.
[ 15 ] Kaba seeks costs of $12,500.00, all inclusive, of disbursements for the four motions. The breakdown is $3,000 for the motion to strike; (2) $7,500 for the motion about pre-certification notice and for a sealing order; and (3) $2,000 for the motion to inspect. Kaba also seeks $1,500 for the costs of preparing its costs submissions.
[ 16 ] In seeking costs, Kaba relies on the principle that where a party consents to the relief sought only after putting the other side to the expense of bringing a motion, it retains the obligation to pay the costs of the motion. Further, Kaba submits that the Plaintiffs conduct constitutes a refusal to admit anything that should have been admitted and lengthened unnecessarily the duration of the proceeding, which are factors the court may consider in exercising its discretion with respect to costs under rule 57.01(1). Further still, it submits that the costs sought are reasonable and would be within the reasonable expectations of an unsuccessful party.
[ 17 ] For their part, the Plaintiffs submit that since the four motions were either resolved on consent of the parties with divided success, or were abandoned, therefore, each party should bear their own costs. In the alternative, given that the issues raised by certain of the motions will be determined at a later date, costs of these motions ought to be in the cause. In any event, the Plaintiffs submit that Kaba is not entitled to any costs for the preparation of the costs submissions.
[ 18 ] With this background to the exercise of the court’s discretion with respect to costs, in my opinion, the appropriate order to make in the circumstances is to award costs of $14,000, all inclusive, payable to Kaba in any event of the certification motion.
[ 19 ] As I view the matter, Kaba has been put to wasted expense because of the manner in which the Plaintiffs have prosecuted this action, and Kaba, practically speaking, was the successful party for having brought or resisted the un-argued or abandoned motions.
[ 20 ] If Kaba is successful on the certification motion, it is fair that it recover its costs. If Kaba is unsuccessful on the certification, it is fair that it be able to set off these wasted costs against the costs it will likely have to pay the successful party.
[ 21 ] The quantum of the costs claimed is also fair and the quantum was not seriously challenged.
[ 22 ] Order accordingly.
Perell, J.
Released: November 14, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFF ROTHMAN and MOSHE ROTHMAN
Plaintiffs
‑ and ‑
KABA ILCO CORP., KABA CORPORATION, KABA FINANCE CORPORATION, KABA BENZING AMERICA INC., KABA U.S. HOLDING LTD., KABA DELAWARE, LLC, KABA AG and KABA HOLDING AG
Defendants
REASONS FOR DECISION - COSTS
Perell, J.
Released: November 14, 2012.