ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 5555/13
Date: 20131114

B E T W E E N:

647200 ONTARIO INC.

David Gorman, for the Plaintiff

Plaintiff

• and -

CHARTRAND EQUIPMENT et al.

Owen J. R. Smith, for the Defendant

Defendants

HEARD: October 4, 2013

D E C I S I O N O N C O S T S

WILCOX, J.

[1] The Plaintiff issued a Statement of Claim on July 9, 2013 against Chartrand Equipment and other defendants. It alleged that the Defendant, a construction company, had damaged the Plaintiff’s property during the cleanup of a fuel spill on it. The Defendant brought a Notice of Motion to strike out the Statement of Claim against it on the grounds that it did not disclose a reasonable cause of action, or, in the alternative, to have the action dismissed or stayed against it on the grounds that it is frivolous, vexatious or an abuse of process. It also sought an order for particulars.

[2] The motion was heard on October 4, 2013.

[3] Both sides filed substantial amounts of material. Obviously, a good deal of effort went into researching and drafting for the purposes of the motion.

[4] During the hearing of the motion, it became apparent that counsel for the moving party had sent correspondence to the Plaintiff’s counsel seeking an amended Statement of Claim so that it could intelligently investigate and defend the matter, but that the Plaintiff’s counsel had not received it. If he had, he said, he would have provided particulars and avoided this motion. Also, counsel for the moving party noted that, even if the Statement of Claim was struck out, that could be with or without leave to amend. In view of this, the matter was stood down and counsel were invited to discuss it. This resulted in an order on consent that an amended Statement of Claim would be produced. The court sees this as a very practical and realistic result in the circumstances.

[5] Both sides sought costs in written submissions.

[6] The moving party contends that the result was favourable to it. That might be, although the result is not one that was explicitly sought in the Notice of Motion. On the other hand, the Plaintiff avoided at least the more drastic heads of relief that were sought. As previously noted, Plaintiff’s counsel indicated that he would have provided particulars if he had received the request to do so. It somehow did not reach him. He had an opportunity to contact counsel for the moving party after receipt of the motion documents to try to negotiate a resolution, but it is not clear if he availed himself of it; the court did not hear all of his submissions before the matter settled. It would have been appropriate also for counsel for the moving party, having not received a reply to his request for particulars, to contact Plaintiff’s counsel directly. Much commentary in recent years has deplored the lack of collegiality and courtesy among members of the bar, and the high cost of legal services. I think that this is an example of a situation that could have been resolved quickly and without court proceedings with a much reduced expenditure of time and money if counsel had seized the opportunity to cooperate in the best traditions of the bar, rather than litigating. This is especially important in a small local bar such as the one involved here.

[7] In view of the above, each side shall bear its own costs.

Justice James A. S. Wilcox

Released: November 14, 2013