SUPERIOR COURT OF JUSTICE - ONTARIO

Karn v. 1528008 Ontario Inc., CITATION: 2014 ONSC 3633

COURT FILE NO.: 14-45728

DATE: 2014-06-13

RE: Donald William Karn, plaintiff

AND: 1528008 Ontario Inc., Gregory Hart, Hines & Stevens, David A. Stevens and Stewart Title Guarantee Company

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Gavin Tighe for the defendants Hines & Stevens and David A. Stevens, moving

Mr Allan Sternberg for the plaintiff, responding

HEARD: June 13, 2013 at Hamilton

ENDORSEMENT

[1] The plaintiff asks for costs on the defendant’s unsuccessful motion to remove Mr Sternberg from the record (2014 SCC 3299).

[2] The plaintiff asks for substantial indemnity of about $29,000 or partial indemnity of about $18,000. Both amounts include $887 in disbursements. The defendant submits that an award of no more than $7,500 on a partial indemnity basis would be appropriate.

[3] The plaintiff asks for substantial indemnity on the basis of conduct that is reprehensible or deserving of condemnation by the court. Some of the particulars:

a. The submission that Mr Sternberg might be a witness was completely devoid of merit;

b. The submissions of the moving parties contained misstatements of fact “which at best may be attributed to overzealous advocacy and at worse a conscious attempt to mislead the court.”

c. The implied assertion that Ricketts Harris might have fired Ms Bulloch for improper reasons;

d. The allegation in submissions that Stevens, the defendants’ lawyer, took instructions from the plaintiffs as well, in the face of the defendants’ decision to amend its statement of defence by deleting that allegation.

[4] This motion had no merit. It was ill-conceived. The submission referred to in paragraph 3(d) was not open to the defendant, given its amendment of the statement of defence. But the alleged misstatements of evidence were simply overstatements of legal conclusions that could be drawn from the depositions. I would not go as far as to call any of this reprehensible or worthy of condemnation, although it certainly entitles the plaintiff to reasonably generous partial indemnity in an amount that might reasonably have been contemplated for this type of motion.

[5] I fix costs at $10,887 plus HST and order the defendant to pay that amount to the plaintiff within 31 days.

J.A. Ramsay J.

Date: 2014-06-13