CITATION: Roman Catholic Corporation v. AXA Insurance, 2015 ONSC 2673
COURT FILE NO.: 4492-08
DATE: 2015-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE DIOCESE OF SAULT STE. MARIE, IN ONTARIO, CANADA
Plaintiff
– and –
AXA INSURANCE (CANADA)
Defendant
COUNSEL:
Daniel Dooley, for the Plaintiff
Kevin L. Ross, for the Defendant
HEARD: October 27 and 28, 2014
REASONS ON COSTS
JUSTICE E. GAREAU:
[1] On February 10, 2015, I released a decision which dealt with an amended notice of motion dated September 5, 2014 brought by the defendant, which was argued before me on October 27 and 28, 2014.
[2] Subsequent to the release of my reasons, I have received and reviewed written submissions from counsel for the parties on the issue of costs.
[3] The motion decided was brought by the defendant arising out of an examination for discovery of Monsignor Angelo Caruso, who was produced by the plaintiff. The defendant sought an order that the Bishop of the Diocese, Bishop Jean-Louis Plouffe, be produced for discovery and that questions which were put to Monsignor Caruso, which either could not be answered by him or were refused to be answered, be answered by Bishop Plouffe. Some of these questions concerned church Canon Law and the practices, policies and procedures that were in place at the relevant time.
[4] The motion was disposed of by order of the court requiring the plaintiff to produce Bishop Jean-Louis Plouffe for discovery and requiring Bishop Plouffe to answer the questions refused to be answered during the discovery of Monsignor Caruso pertaining to Canon Law, church practices and policies.
[5] The defendant enjoyed the overwhelming preponderance of success on this motion. The court agreed with the position of the defendant that the Bishop of the Diocese should be produced for discovery and that questions related to Canon Law, and the policies and practices of the church were relevant to the issues in the litigation. The plaintiff took exactly the opposite position and was entirely unsuccessful.
[6] As set out in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. 43, costs are in the discretion of the court subject to any provision in the Rules that may assist the court in the exercise of its discretion.
[7] In the exercise of its discretion, under s. 131 of the Court of Justice Act, to award costs, the court may consider any offer to settle made in writing and the factors set out in s. 57.01(1) of the Rules of Civil Procedure.
[8] As to offers to settle, it does not appear from the written submissions received from the parties that formal offers to settle were made by either party prior to the motion being argued. That is not surprising given the nature of the motion and the “all or nothing” result inherent in the motion brought by the defendant.
[9] Despite the fact that the defendant enjoyed success on the motion, it is the position of the plaintiff that the defendant should be denied its costs for failing to bring to the court’s attention a decision granted by Mr. Justice A.D. Grace on October 15, 2014, which the plaintiff maintains deals with issues similar to those raised in the motion brought by the defendant, AXA Insurance (Canada).
[10] In particular, the plaintiff states at paragraph 16 of its written submissions on costs dated March 14, 2015:
“The plaintiff submits that despite the defendant’s success on the motion before Your Honour, Mr. Ross’ failure to disclose the clearly relevant decision of Justice A.D. Grace to the court is deserving of condemnation in the form of no costs. The plaintiff further submits that if defence counsel had disclosed Justice A.D. Grace’s endorsement before this motion was argued, preparation and attendance time at the motion could have been greatly reduced by both parties.”
[11] I have read the decision of Grace, J. in The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario v. AXA Insurance (Canada) referred to above. That is a decision of the Ontario Superior Court of Justice which makes it a persuasive rather than a binding authority on me. The London motion did not deal with whether or not the Bishop of the Diocese should be produced for examination for discovery. In the London action, Bishop Ronald Fabbro was produced at the first instance. This is a distinguishing factor from the Sault Ste. Marie case where the plaintiff took the position that the Bishop should not be produced for discovery. The refusals in the London case, which Justice Grace had to rule on were more narrow and specific refusals than in the motion before me. In the London case, Justice Grace did not have to rule on the overarching question of whether Canon Law was relevant to the action, but rather on refusals that were very narrow in scope. In the case at bar, the issues were much broader in scope and the relevance of Canon Law in light of the E.M. v. Reed decision was vigorously argued by counsel for the plaintiff. The relevancy of Canada Law was not something that Justice Grace had to consider in his decision. Justice Grace had to concern himself with narrow, microscopic questions within the Canon Law, not whether the entire question of Canon Law and the practices and policies of the Roman Catholic Church were relevant questions to be answered on an examination for discovery.
[12] I am of the view that, for the most part, Justice Grace and I were determining different issues on the motions before us. I do not consider our decisions to have created conflicting jurisprudence. Justice Grace’s decision did not deal with the issues that were before me on the motion I adjudicated upon. Justice Grace’s decision is not a binding decision directly on point and as such, the solicitor for the defendant did not have an obligation to disclose that decision to this court when the motion was argued on October 27 and 28, 2014. It might have been preferable that Justice Grace’s decision was disclosed in that it might have assisted in guiding the argument or discussion, but the failure to do so, in my view, does not deprive the defendant of its costs on the motion.
[13] The defendant was successful on the motion and should be entitled to its costs. As to the scale of costs, I am of the view that the appropriate scale is partial indemnity costs. I do not conclude that the plaintiff was guilty of “reprehensible conduct” or “malicious conduct” or conduct of such a negative nature that would attract substantial indemnity costs. As noted by McLachlin, J. (as she then was), for a majority of the court in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at page 134, solicitor and client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.” That cannot be said of the plaintiff. Partial indemnity costs are appropriate.
[14] The defendant has submitted a bill of costs which totals $29,834.77 for fees and $846.52 for disbursements ($30,681.29). The fees claimed, on a partial indemnity basis, total $23,432.00. In reviewing the bill of costs submitted by the defendant and the appropriate quantum of costs, I am guided by Rule 57.01(1) of the Rules of Civil Procedure. Considering the factors set out in Rule 57.01(1) and, in particular, the complexity of the motion and the importance of the issues raised in the motion, an appropriate award of costs is in the amount of $15,000.00 inclusive of HST and disbursements.
[15] For the reasons set out herein, the plaintiff shall pay to the defendant costs in the amount of $15,000.00 payable forthwith with respect to the motion before me, argued on October 27 and 28, 2014.
Justice E. Gareau
Released: April 23, 2015
CITATION: Roman Catholic Corporation v. AXA Insurance, 2015 ONSC 2673
COURT FILE NO.: 4492-08
DATE: 2015-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE DIOCESE OF SAULT STE. MARIE, IN ONTARIO, CANADA
Plaintiff
– and –
AXA INSURANCE (CANADA)
Defendant
REASONS on COSTS
Justice E. Gareau
Released: April 23, 2015