SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-53327
DATE: April 16th, 2014

RE: Rebecca Pammett et. al. , Plaintiffs

AND:

1230174 Ontario Inc. et. al. , Defendants

BEFORE: MASTER MACLEOD

COUNSEL:
Samantha A. Iturregui, for the Defendant, 1230174 Ontario Inc. (Moving Party)

Katie Gauthier, for the Defendant, Variety Property Maintenance, Landscaping & Design Inc. (Moving Party)

Kelly P. Hart, for the Plaintiffs (Responding Parties)

HEARD: March 18th, 2014

ENDORSEMENT

[1] On April 16th, 2014 the court granted summary judgment in this matter dismissing the action due to the expiry of the limitation period. In my reasons I tentatively fixed the costs of the motion and of the action based on the written costs outlines and bills of costs. The endorsement contemplated that the award of costs might have to be revisited because of offers to settle that had not at that point been disclosed. It was silent as to whether submissions might be received for other reasons.

[2] Subsequently counsel for the plaintiff indicated a wish to make costs submissions as did counsel for Ashcroft. I directed through the case management co-ordinator that such submissions be made in writing and I have now received those submissions. For the reasons that follow, it is possible to finalize the costs of the motion but an additional process will be required in connection with the costs of the dismissed action.

[3] As a preliminary matter, counsel for the defendants submit that the plaintiff cannot challenge the quantum of costs except by way of appeal because the court has already dealt with the issue. There are three reasons why that argument must fail. Firstly it is clear from the reasons that the costs award might be adjusted and so the issue remained open. Secondly, a judicial officer is not functus until an order is taken out and therefore I am still seized of the issues including costs. Finally, and most importantly it would be unjust not to allow the plaintiff to make submissions and to challenge assumptions or conclusions reached without the benefit of argument.

Jurisdiction

[4] Dealing first with the question of jurisdiction, it is quite clear even if all issues have been fully argued, an Ontario court retains a broad discretion to alter or vary a decision until the formal judgment is taken out.[^1] By contrast, once an order has been issued and entered the judicial officer is for that purpose functus. Subject to the possibility of a motion to vary under Rule 59.06, the process to change a finalized court order is an appeal. Until then, the judicial officer seized of the motion retains jurisdiction to hear additional argument or admit fresh evidence. In particular the issue of costs may require procedural flexibility and may be regarded as distinct from the substantive issues.[^2]

[5] So in respect of the preliminary objection, I retain jurisdiction to alter the costs award even if the endorsement could be construed as final in respect of quantum.

Procedure for fixing costs

[6] Costs of any proceeding are in the discretion of the court. The discretionary nature of costs at common law is now codified in s. 131 of the Courts of Justice Act. Rule 57 is the framework for the exercise of that discretion and it has been amended many times in the past decade or so as the makers of the rules have struggled with the competing imperatives of fairness, efficiency and predictability. In its current incarnation, the rule seeks to streamline awarding of costs by providing that generally speaking the court is to fix costs at each step in the proceeding rather than referring the quantum of costs to assessment under Rule 58 although the jurisdiction to refer costs for assessment is preserved.

[7] Rule 57.01 (7) provides that the court is to devise and adopt the simplest, least expensive and most expeditious process for fixing costs. Where a motion is taken under reserve, various strategies are adopted in pursuit of this mandate. In some instances the court will direct counsel to seek agreement on costs and failing agreement will give directions about the form of submissions. Costs submissions are often received in writing.

Decision

[8] At the conclusion of argument on March 18th, I indicated to counsel that I would take their costs outlines as their submissions in respect of the costs they were seeking. Apart from the question of offers to settle, which of course could not be disclosed until after I had decided the substantive issues, no one indicated the need to make further submissions and each party was content to rely upon its own costs outline.

[9] In Form 57B each party is expected to address the factors which might give rise to higher or lower costs. Those are the factors set out in Rule 57.01 (1). Consequently the costs outlines provide the court in summary fashion the amount that each party is seeking. Frequently to fix the costs of a motion, comparison of the costs outlines is all the process that is required particularly since the judge or master hearing the motion is in the best position to determine what costs are reasonable. In this case, for example, the costs outline submitted by the plaintiff for the motion was similar to the costs outline submitted by counsel for Ashcroft. None of the parties disagree with the determination of the partial indemnity costs.

[10] The only remaining issue in respect of the motion is the impact of the offer to settle. That offer was served by Ashcroft on June 17th, 2013. The offer was for dismissal of the action against Ashcroft and for costs on a partial indemnity scale. This is effectively the relief that was obtained on the motion. Whether it is in technical compliance with Rule 49 is debatable simply because the provision in the offer regarding costs is ambiguous about whether it means costs of the motion or of the action as well as the motion and because the offer included the requirement to sign a release. Nevertheless the offer was a reasonable one and justifies an increase in the scale of costs for the argument of the motion.

[11] Accordingly I fix the costs of the motion at $5,000.00 to Ashcroft on a partial indemnity scale and $3,000.00 on a substantial indemnity scale for a total of $8,000.00. Costs to Variety remain at $5,000.00 on a partial indemnity scale since Variety did not serve an offer to settle. This deals with the costs of the motion.

[12] The defendants are also entitled to costs of the action but that determination is not so simple. As pointed out in the submissions of the plaintiff, the defendants in this action are already third parties in the original action. Although I was aware of that fact, I did not take it into account in reviewing the costs submissions and it is clear, indeed admitted, that there is overlap and duplication. It may be that the costs attributable to the second action, other than the motion, are little more than the cost of pleading but that is not conceded by the defendants.

[13] Counsel for the plaintiff asks that the defendants produce bills of costs and disbursements supported by docket entries. Rule 57.01 (5) requires delivery of bills of costs when a motion disposes of the proceeding and of course the court may require production of supporting documents.

[14] Determining the question of what costs are attributable to the dismissed action as distinct from the original action may involve detailed examination of the supporting documents and is therefore a task more suited to the assessment officer.

[15] Accordingly the portion of the reasons dealing with awarding costs of the action and fixing those costs is set aside. Instead the defendants will be entitled to costs of the dismissed action on a partial indemnity scale and their disbursements thrown away in amounts to be agreed upon between the parties or to be determined by assessment.

[16] Any of the parties may initiate the assessment process if agreement is not reached within the next 15 days.

July 4, 2014

Master MacLeod

[^1]: See Montague v. Bank of Nova Scotia (2004) 2004 27211 (ON CA), 69 O.R. (3d) 87 (C.A.); leave to appeal denied, [2004] S.C.C.A. No 79; Feinstein v. Freedman 2014 ONCA 205; 119 O.R. (3d) 385 @ para. 43; 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. 2014 ONCA 125 @ para. 64

[^2]: Byers v. Pentex Print Mater Industries Inc. (2003) 2003 42272 (ON CA), 62 O.R. (3d) 647 (C.A.)