SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-479617
DATE: 20140115
TRANSCRIBED HANDWRITTEN ENDORSEMENT, ORIGINALLY APPEARING on the MOTION RECORD
RE: TIM CASGRAIN and AMARNA ASSOCIATES INC., Plaintiffs
AND:
1224568 ONTARIO INC., STEPHEN BAKER and SHEILA BAKER,
Defendants
BEFORE: CHIAPPETTA J.
COUNSEL:
A. Beddoes, for the Plaintiffs
I. Minott, for the Defendants
HEARD: January 15, 2014
ENDORSEMENT
[1] The Plaintiffs bring this motion for summary judgment. The defendants are not opposed.
[2] Judgment is to issue, therefore, to the Plaintiffs in the amount of $454,491.11, as against the defendant Stephen Baker.
[3] The parties were not in agreement with respect to the appropriate costs to be awarded on this motion. For reasons that follow in the attached six-page endorsement costs are fixed at $13,715.65 and made payable, on a substantial indemnity scale, to the Plaintiffs by the Defendant Stephen Baker.
[4] This is a motion for summary judgment in respect of the 2007 Promissory Note and the 2008 Promissory Note the Plaintiff Casgrain loaned to the Defendant Stephen Baker. It was not until January 13, 2014 that the Defendant advised the Plaintiffs that they would not be taking a position on the merits of the Plaintiffs’ motion. The Plaintiffs present today seeking their costs of the motion on a substantial indemnity basis. I have concluded, for reasons set out below, that costs should be properly be awarded to the Plaintiffs on a substantial indemnity basis.
[5] Rule 20.06 of the Rules of Civil Procedure provides costs sanctions where a party acts unreasonably in responding to a summary judgment motion or acts in bad faith for the purpose of delay. The onus is on the party seeking substantial indemnity costs to convince the court that the other side acted unreasonably or in bad faith for the purpose of delay in bringing or responding to a motion for summary judgment (Combined Air Mechanical Services Inc. v. Flesh, 2011 ONCA 764 at parA. 67). Further, substantial indemnity costs should only be awarded on a clear finding of reprehensible conduct (Davies v. Clarington (Municipality), 2007 ONCA 746, [2007] O.J. No 4236 (Ont. C.A.) at paras. 37-40).
[6] In my view, the Plaintiffs have demonstrated that the Defendants’ conduct in responding to this motion, falls within Rule 20.06 and was sufficiently egregious to warrant an elevated level of costs. The background facts are summarized as follows:
Collection on the promissory notes commenced in April 2014 by way of a demand for payment, followed by a statement of claim dated May 3, 2013. The Defendant served and filed a statement of defence on June 17, 2013.
The parties appeared before Justice Stinson in June 2013, wherein he scheduled the motion for today and ordered the parties to comply with a timetable to ensure the efficiency of the within motion.
Pursuant to the said timetable, the Plaintiffs delivered their motion record in July 2013.
In August 2013 the Defendants asked for an indulgence in the delivery of their summary judgment responding materials. The indulgences were granted through to August 30, 2013, failing which the Defendants were advised they would be required to move for an extension.
In September 2013, the Plaintiffs offered their affiant to the Defendants for cross-examination.
The Defendants did not deliver responding materials, move for an extension, schedule a cross-examination or advise of a position on the motion.
The Plaintiffs delivered their factum and brief of authorities on December 20, 2013.
In accordance with proper procedure, the Plaintiffs filed the confirmation form for this motion on January 20, 2014 advising I have been unable to confirm with opposing counsel/party “because I e-mailed and called opposing counsel but they never responded”. As of 5 days before this motion, despite Plaintiffs’ requests, the Defendants failed to file materials in accordance with the time table ordered or advise of their position on the motion. For this reason the motion was left on the motions list to be heard for 90 minutes today and counsel for the Plaintiffs prepared submissions accordingly.
It was not until January 13, 2014 at 2:35 p.m. did the Defendants for the first time advise the Plaintiffs that they will not be taking a position on the motion.
[7] The Defendants suggest that their conduct amounts to inconvenience and submit that the Plaintiffs, in these circumstances, would have had to file materials in any event.
[8] This however, is not the case.
[9] The Defendants offer no explanation for their failure to abide by the timetable for this motion ordered in June 2013 by Stinson J. There is no explanation given for failing to file responding materials or failing to advise the Plaintiffs that they would not be filing responding materials. And there is no explanation provided as to why the Defendants waited to the last hours to finally advise the Plaintiffs that they intended not to oppose the motion.
[10] The Defendants’ delayed communication came after Plaintiffs’ counsel prepared to argue the motion, 90 minutes of court time was allotted to hear the motion and a judge was assigned to adjudicate the motion.
[11] Surely this amounts to more than inconvenience. It is conduct worthy of sanction. It is unreasonable, and in these circumstances, reprehensible.
[12] The Plaintiffs have submitted a costs outline, seeking $13,715.65 in substantial indemnity costs. The defendants do not take issue with the amount of hours therein but rather submit that the hourly rates claimed therein are excessive and should rather align with the rates set out as guidance in the practice note of the Costs Subcommittee of the Civil Rules Committee.
[13] In my view however, the rates of Mr. Sullivan as a 1973 year of call ($832/$855) and the rates of Mr. Beddoes as a 2012 year of call ($300/$360) are realistic and properly within the contemplation of the parties for downtown Toronto matters (Degrotte v. O.C. Entertainment Corporation, 2014 ONSC 63 at para. 24).
[14] Costs are therefore fixed, for reasons noted above, on a substantial indemnity basis at $13,715.65.
CHIAPPETTA J.
Date: January 15, 2014