COURT FILE AND PARTIES
COURT FILE NO.: 12-CV-451025
DATE: 20140402
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SCHULZ, ADAM HUFFMAN, WENDY KERUZORE, LISA KENNY, STEVEN BAYLEY, BARBARA BAYLEY, WARREN BAYLEY and the ESTATE OF KIMBERLEY SCHULZ, deceased, by her Trustee ROBERT SCHULZ
Plaintiffs
– and –
JARRETT JOHNS and THE CORPORATION OF THE CITY OF MISSISSAUGA
Defendants
Jerome R. Morse and Lionel J. Tupman, for the Plaintiffs
David G. Boghosian, for the Defendants
HEARD: In Writing
Perell, J.
REASONS FOR DECISION - COSTS
[1] Relying on s. 74 of the Fire Prevention and Protection Act, 1997, S.O. 1997, c. 4 and pursuant to rules 21.01 (1)(a) and 21.01 (1)(b) of the Rules of Civil Procedure, the Defendants Jarrett Johns and The Corporation of the City of Mississauga, moved for an order dismissing the action against Mr. Johns, who is a firefighter, as statute-barred and as not showing a reasonable cause of action. The Plaintiffs brought a cross-motion for leave to amend their Statement of Claim.
[2] I granted the motion to amend and dismissed the motion to dismiss. See Schulz v. Johns, 2014 ONSC 387.
[3] The Plaintiffs now seek costs on a partial indemnity basis of $14,330.71.
[4] The primary issue on the Defendants’ motion was whether the Plaintiffs had pleaded a legally tenable claim that would answer Mr. Johns’ statutory defence.
[5] The Defendants delivered a Statement of Defence, and in their pleading, they denied any negligence and alleged that the late Mrs. Schulz’s own negligence was the cause of a collision between her automobile and a fire truck. The Defendants pled that the action was statute-barred against Mr. Johns pursuant to s. 74 of the Fire Prevention and Protection Act, 1997. More particularly, the Defendants argued that there was no evidence of bad faith pleaded in the Statement of Claim and, therefore, the action should be discontinued against Mr. Johns.
[6] I decided this issue on its merits, but I pointed out that the Defendants’ motion could have been dismissed because they took the further or fresh step of delivering a pleading rather than bringing a motion to have the original Statement of Claim struck out.
[7] In what is, with respect, a somewhat brazen argument for an unsuccessful moving party on a motion, the Defendants submit that the Plaintiffs would not have incurred any expense if they had not opposed the motion because they would have lost nothing by letting Mr. Johns out of the action because the co-defendant would be vicariously liable for Mr. Johns’ conduct and he would in any event be examined for discovery.
[8] I give no weight to this argument, and note that it is not correct to say that the Plaintiffs would have lost nothing, because they would have lost the right to dispute Mr. Johns’ statutory defence.
[9] The Defendants then argue that the lawyers’ hours expended for a motion that ought not to have been resisted was excessive. This argument fails for similar reasons to the last argument. The Plaintiffs were entitled to resist the motion, which raised a significant legal matter, and they were successful in their resistance. The Plaintiffs are entitled to recover their costs in accordance with the normal principles that guide the court’s discretion in awarding costs.
[10] Save for a reduction for disbursements, which are excessive, and a modest reduction to make the claim for costs come within the reasonable expectations of the unsuccessful party, the amount claimed by the Plaintiffs is appropriate.
[11] Accordingly, I award the Plaintiffs $13,000, all inclusive, payable forthwith.
Perell, J.
Released: April 2, 2014
COURT FILE NO.: 12-CV-451025
DATE: 20140402
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SCHULZ, ADAM HUFFMAN, WENDY KERUZORE, LISA KENNY, STEVEN BAYLEY, BARBARA BAYLEY, WARREN BAYLEY and the ESTATE OF KIMBERLEY SCHULZ, deceased, by her Trustee ROBERT SCHULZ
Plaintiffs
‑ and ‑
JARRETT JOHNS and THE CORPORATION OF THE CITY OF MISSISSAUGA
Defendants
REASONS FOR DECISION - COSTS
Perell, J.
Released: April 2, 2014