SUPERIOR COURT OF JUSTICE - ONTARIO

Citation: Brock University v. Gespro Ont. Inc. ONSC 4495

Court File No.: CV-04-268893

Date: 2013/07/01

RE: Brock University v. Gespro Ont. Inc.

Before: Master Wiebe

Heard: April 23, 2013

Ruling: May 16, 2013

Counsel:
Jillian Van Allen for the plaintiff, Brock University (moving party)

M. Gosia Bawolska for the defendant (responding party)

COSTS AWARD

(Motion to set aside administrative dismissal order under Rule 48.14)

1. I have now found the time to review counsel’s written submissions on costs. Brock does not seek costs. It also did not submit a Costs Outline, which made it difficult to assess what both parties would have reasonably expected a successful party to recover in costs. Gespro seeks partial indemnity costs in the total amount of $26,767.45, and has submitted a Cost Outline accordingly.

2. I will review these submissions considering some of the factors outlined by Rule 57.

a) The result of the motion:

3. While Gespro was not successful in opposing the Brock motion for an order setting aside the administrative dismissal order, I do not think that it was unreasonable in opposing this motion given the substantial delay that Brock did not adequately explain. Furthermore, Brock failed to bring the motion promptly. Finally, as noted in my decision, important evidence from key parties (such as the plaintiff itself) was missing. It was only my exercise of discretion concerning primarily the issue of prejudice that caused me to find in favour of Brock. Mine was a difficult decision that was made difficult by Brock’s conduct and evidence.

4. This is a case like Bains v. Morrow [2001] O. J. No. 4764 and Habib v. Mucaj [2011] O.J.No. 6520 where the “successful party” should bear the costs of the motion. There were clear lapses of proper attention to the litigation which resulted in this motion. Therefore, this case can be distinguished from Shakur v. Pham [2012] O.J. 6060. Therefore, I find that Gespro is entitled to its costs of this motion.

b) Conduct of a party that unnecessarily lengthened and complicated the motion:

5. In my view, Brock’s conduct unnecessarily complicated this proceeding. Brock in the end served and filed four motion records containing numerous affidavits with overlapping evidence. This unnecessarily complicated the review of the evidence. Furthermore, it delayed the motion itself, which went through 5 adjournments and in the end took over two years from start to finish. Furthermore, as stated above, key evidence from essential parties (such as the plaintiff) was missing. Also, as I stated at times in my ruling, Brock’s counsel failed at key times to correspond with his opponents, such as in response to the letters indicating that the defendants counsel were closing their files on account of Brock’s delay in bringing the motion.

c) Complexity of the proceeding:

6. The motion itself should have been moderately complex. However, again, the conduct of Brock unnecessarily complicated it with several motion records, overlapping affidavit evidence, missing key evidence and delays in the motion. I note in particular the evidence concerning prejudice. This was critical to the outcome of the motion. Yet Brock did not seriously respond on that issue until Gespro had filed its affidavits.

d) Importance of the issues:

7. There is no doubt that there was considerable importance to this motion. The claims are large in size – the claim is over $6 million and the counterclaim in excess of $3 million. They involve complex issues of delay involving much expert evidence. Whether the delay in the case had prejudiced the ability of the parties to properly try the issues and could otherwise be explained merited a critical review in this motion.

e) Steps that were taken were unnecessary, improper, or on account of negligence:

8. Ms. Bawolska implied that the cross-examinations and the motion concerning undertakings that arose therefrom were largely unnecessary and further delayed the motion. I do agree with her to some extent as the evidence that came out of the cross-examinations was not as critical as the affidavit evidence. Yet some important evidence from Mr. Fry about prejudice did come out in cross-examination.

9. As is clear by now, I do though agree with Ms. Bawolska’s criticism of the Brock excessive supplementary motion material with overlapping evidence. I also note that when it finally did serve its motion record for an order setting aside the administrative dismissal, Brock served it on the eve of the Christmas holiday, almost 11 months following the dismissal order, and returnable on a date 10 days after the New Year’s Day holiday, an unnecessarily aggressive step.

f) Experience of counsel, the hours spent and the rates charged:

10. The Gespro Costs Outline is generally not unreasonable. Given the complexity of the motion as noted above, the experience of Gespro counsel assigned to this task was reasonable. The use of law clerks and students was also reasonable, as were the rates charged to the client.

11. As to quantum, the preparation of the motion material seems somewhat excessive. Gespro in the end prepared one two volume responding motion record. Ms. Van Allen submitted that the claim for the primary lawyer, the senior partner and the junior associate was all excessive, particularly as the time was not broken down and as there was much time claimed for communication with Gespro. She also submitted that the associates’ time for the attendance at the motion was excessive. I agree to some extent, although, again, much of this was probably necessitated by the delays in the motion and the complexity of the evidence. I note that the argument did in the end take one full day in light of all the evidence.

12. There was some argument over whether Gespro was seeking the costs of the undertakings motion in which Master Glustein had already awarded costs. Ms. Bawolska confirmed that this was not the case. Nevertheless, I will reduce the Gespro cost award to some extent on account of what I view to be somewhat of an excessive amount of time claimed. I also want to take into account that the plaintiff did in the end succeed on the motion.

13. I also take some guidance from Master Graham’s ruling in Habib where he awarded $5,000 to the defendant in a similar motion that was much less complicated in the evidence and that was argued apparently over 2 hours. The within motion was considerably more complicated and was argued over a full day.

g) Ruling:

14. Taking all this into consideration, I herewith order that Brock pay Gespro $22,000 in the costs of this motion, payable in 60 days from the date of this ruling.

July 1, 2013 ___________________________________________

MASTER C. WIEBE