COURT FILE AND PARTIES

COURT FILE NO.: 03-CL-5056A
COURT FILE NO.: 03-CL-5057A

DATE: 2014-03-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margaret A. Mayhew, Plaintiff

AND:

Paddon + York Inc., Defendant

AND:

Thornton, Grout, Finnigan LLP, Third Party

AND RE: Douglas C. Brooks, Plaintiff

AND:

Paddon + York Inc., Defendant

AND

Thornton, Grout, Finnigan LLP, Third Party

BEFORE: Regional Senior Justice Morawetz

COUNSEL:
Nicholas Kluge and A. Zoe Paliare, for the Plaintiff

Hershel J. Sahian, for the Defendant Paddon + York Inc.

Brett Rideout, for the Third Party, Thornton, Grout, Finnigan LLP

HEARD:

ENDORSEMENT ON COSTS

[1] At paragraph 41 of my Endorsement I stated:

(a) This is not a case where the plaintiffs are entitled to their costs. Rather, it could very well be that costs should be payable to the defendant and third party.

[2] The defendant, Paddon + York Inc. (“PYI”) and the third party, Thornton, Grout, Finnigan LLP (“TGF”) brought motions to dismiss the plaintiffs’ action for delay and, in the alternative, to compel the plaintiff’s compliance with previous orders, including production of outstanding answers to undertakings.

[3] The motions to dismiss the actions for delay were dismissed. The alternative relief was granted.

[4] The plaintiffs take the position that no costs should be awarded to PYI and TGF. Alternatively, the plaintiffs submit that if costs are awarded, PYI and TGF are not entitled to the same amount to which the plaintiffs had agreed they would be entitled had they been successful, namely $10,000 to PYI and $4,000 to TGF.

[5] The plaintiffs take the position that they consented to the alternative relief sought and that in the months preceding the motion, they had made attempts to set an expedited schedule to move the matter forward. Further, the plaintiffs submit that on October 30, 2013, two weeks before the motion, they served an offer to settle. The offer to settle was based on what the plaintiffs refer to as the predictable outcome of the motion, which was a dismissal of the motion and the direction of an expedited trial.

[6] In my view, the terms of such an offer to settle do not impact on the determination of costs. The offer to settle does not address the issue of outstanding undertakings or incomplete answers to undertakings to be provided by the plaintiffs.

[7] I am satisfied that the steps taken by PYI and TGF were justified. The plaintiffs were in violation of a number of court orders and they failed to advance the action since September 2010. I am in agreement with the submission of PYI to the effect that without the benefit of the motion, the actions would have continued to languish.

[8] I have considered the submissions filed by the parties and I have also taken into account the facts enumerated under Rule 57, including the time spent, the results achieved and the complexity of the matter. In addition, I have also taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[9] Rule 57.01(2) provides that the court may award costs against the successful party in appropriate cases. In my view, this is such a case. The conduct of the plaintiffs and their counsel was such that it has lengthened unnecessarily the duration of the proceeding. The costs incurred by PYI and TGF did not result in any meaningful progress in these actions. Costs were incurred as a result of the undue delay of the plaintiffs.

[10] At the conclusion of the motion, the parties agreed that if PYI and TGF were successful, the costs would be set at $10,000 and $4,000 respectively.

[11] Taking into account that the outcome fell short of what was desired by PYI and TGF, there has to be some reduction on the aforementioned amounts.

[12] In these circumstances, it seems to me that an appropriate award, representing partial success, is $5,000 in favour of PYI and $2,000 in favour of TGF, payable jointly and severally by the respective plaintiffs. I have given consideration as to whether this is an appropriate case to make an order under Rule 57.07(1) on account of the acknowledged neglect of the former solicitor who had carriage of the matter when considerable time was wasted. However, in view of the mandatory language in Rule 57.07(2), I do not feel that such an order can be made as the firm has not been given a reasonable opportunity to make representations to the court. However, this could very be a matter for the firm to address directly with their clients.

Morawetz, RSJ

Date: March 25, 2014