SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: 07-CV-38515
Date: April 8, 2013
RE: The Corporation of the Municipality of Greenstone, Plaintiff
(Moving Party)
AND:
Marshall Macklin Monaghan Limited, Defendant
(Responding Party)
Before: Master Pierre E. Roger
Counsel:
Heather Williams/S. Sviergula, for the Plaintiff (Moving Party)
Peter J. Mitchell, for the Defendant (Responding Party)
Heard: January 29, 2013, and written submissions on costs received by April 2, 2013
ENDORSEMENT ON COSTS
This motion sought an order setting aside the dismissal order of a registrar and an order for leave to amend the statement of claim.
The Plaintiff/Moving Party was essentially successful as the dismissal order was set aside and the amendments allowed: Municipality of Greenstone v. Marshall Macklin Monaghan Limited, 2013 ONSC 933.
I have reviewed the costs submissions filed by both parties. As a general comment, I find the Plaintiff’s submissions and stated position on costs to be reasonable in the circumstances of this case.
This is not the kind of case, on the evidence presented, where there should be no costs to the successful party.
I agree that on the motion to set aside the dismissal, the Plaintiff had to prepare affidavits in any event. There shall be no costs for these. However, it is not as clear that a factum had to be prepared or that the motion had to be argued on this point, at least not on a no risk for costs basis to the Defendant. At some point, the evidentiary record became such that the Defendant had to appreciate that they could be exposed for some reasonable portion of costs should they lose the motion seeking to set aside the administrative dismissal. It would be counter-effective (not producing the desired effect) if defendants were to assume that they can oppose such motions with no risk for costs. The message has to be that there always is a risk that costs may be ordered depending on the circumstances and the court’s appreciation, in each case, of how the evidence impacts the factors relevant to the issue of costs.
In this case, as the evidentiary record of the Plaintiff cumulated, the Defendant had to appreciate that it might have to pay costs if its position on the motion to set aside the dismissal was not accepted and it had to have had some reasonable expectation of what it might be expected to pay, considering what it was being charged to oppose the motion.
There is certainly no rule that costs may not follow if somehow LAWPRO (or an insurer) is involved. Again, it depends on the circumstances and it would be counter-effective to have such a rule as it might discourage lawyers and parties from consulting with LAWPRO (or with their insurer).
On the contrary, these are important motions and lawyers should probably assess the merits of consulting with their insurer to ensure that the materials being prepared for their clients on such motions are adequate. Parties should not on that basis alone (that their lawyer consulted with or that LAWPRO became involved), be denied costs if successful on the motion. All factors relevant to costs have to be assessed to arrive at a fair and reasonable disposition in the circumstances.
Certainly, the Plaintiff was successful on the motion to amend and I see no reason why it should not as well be entitled to costs for that part of the motion, payable forthwith on a partial indemnity basis.
The Plaintiff’s partial indemnity costs are $20,573.00 while those of the Defendant are $26,731.00. When assessing costs, we are not necessarily engaged in a precise mathematical exercise of analyzing the costs incurred but rather we try to arrive at an amount “that is fair and reasonable for the unsuccessful party to pay in the particular proceeding”. [^1]
In this case, considering all circumstances and evidence presented to the court and considering the rule 57 factors, it is certainly fair and reasonable for the Defendant to have expected to pay at least half of the partial indemnity costs. The Plaintiff seeks $10,000.00 plus disbursement. That is certainly a reasonable amount in light of the complexity involved and overall result, considering as well the nature of the administrative dismissal motion (that it might, to some extent, be considered a request for an indulgence). I fix costs of this motion in the all-inclusive amount of $12,500.00.
Consequently, the Defendant shall, within the next 30 days, pay to the Plaintiff the costs of this motion which are assessed on a partial indemnity basis in the all-inclusive amount of $12,500.00.
DATE: April 8, 2013
Master Pierre E. Roger
[^1]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para. 26.