SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-0356

DATE: 20131119

RE: 1758704 ONTARIO INC. and 1191305 ONTARIO INC., Plaintiffs

AND:

CARL PRIEST, Defendant

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL:
K. William McKenzie and Krista J. McKenzie, for the Plaintiffs

Brad Teplitsky, for the Defendant

HEARD: By written submissions

ENDORSEMENT

[1] On August 21, 2013, I issued an endorsement in the Plaintiff’s motion for summary judgment on a promissory note in favour of the Plaintiffs executed by the Defendant. I granted summary judgment subject to a trial of the issue of the quantum owing under the promissory note.

[2] The parties both supplied costs submissions to this office, the Defendant’s final and reply costs submissions being provided on September 17, 2013. Prior to the issuance of this costs endorsement, Plaintiffs’ counsel contacted us to advise that he had not received the Defendant’s costs submissions and he wished to provide reply submissions based upon the fact that no reply had been made by the Defendant. This office advised him that we had, in fact, received cost submissions from the Defendant, and we put the matter on hold pending receipt of reply submissions from Mr. McKenzie. No reply costs submissions were filed by Mr. McKenzie and I am accordingly issuing this costs endorsement on the assumption that none are being filed or served.

[3] Mr. McKenzie requests on behalf of his clients full indemnity costs based upon his client’s success on the motion as well as the conduct of the Defendant, Mr. Priest. He claims costs in the amount of $9,078.12 as set out in the costs memorandum filed with the Plaintiffs’ costs submissions. In his response to the costs submissions, Mr. Teplitsky does not take exception to the costs memorandum or the quantum claimed.

[4] It is trite that costs of a motion should follow the event and that, absent misconduct, the successful party in a motion is entitled to costs: see 1318706 Ontario Ltd. v. Niagara (Regional Municipality), 2005 CarswellOnt 1882 (C.A.) at para. 50. Counsel has also cited Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.) which clearly stands for the proposition that, absent “rare and exceptional” circumstances a party is only entitled to party and party costs of a proceeding. This would include cases where there were proven allegations of “fraud, deceit or conspiracy” or where the action was “improperly defended”: See para. 126 of the report.

[5] As I noted in my endorsement, neither counsel has a lot to be proud of in the conduct of this motion or argument. Both counsel attacked each other personally during the motion. The state of the materials filed by the Defendant in opposition to the motion for summary judgment was abysmal and confusing and the Defendant attempted to rely upon portions of the factum as evidence in the motion, when these constituted allegations only. The conduct of Plaintiff’s counsel during the cross examination of Mr. Donkers was troubling, considering that he refused to allow his client to answer questions later asked by him on redirect. The costs submissions of the Defendant are replete with accusations of fraud, none of which has been made out in the evidence filed on this motion.

[6] Considering that, I do not find misconduct on the Defendant’s part; if there was misconduct, it was mutual. Accordingly, costs are based solely upon the result, which was that summary judgment was granted with a trial of the issue of quantum only. As such, the Plaintiffs were successful on the motion and as such costs should follow the event on a partial indemnity basis.

[7] The Plaintiffs are entitled to their costs of the motion fixed in the amount of $6,000 inclusive of HST and disbursements, payable within 30 days.

McDERMOT J.

Date: November 19, 2013