1562864 Ontario Inc. v. Qureshi, 2015 ONSC 3017
COURT FILE NO.: 13-CV-485186
MOTION HEARD: 20150505
REASONS RELEASED: 20150511
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
1562864 Ontario Inc. o/a Bowlerama West
Plaintiff
- and-
Ali (Shaukat) Qureshi, Abdul Mufti, Planet Energy (Ontario) Corp., Planet Energy Corp. and ACN Planet Energy
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Gregory Govedaris Fax: (416) 384-0333
- for the Plaintiff (moving party)
James S.F. Wilson Fax: (416) 947-0866
- for the Defendant Planet
Energy (Ontario) Corp.
RELEASED: May 11 2015
Endorsement on motion to amend Claim
[1] Proportionality needs to be applied when dealing with Simplified Procedure matters.
[2] The Plaintiff seeks to amend its claim to assert that it was misled with regard to a gas supply agreement with, in addition to the already pleaded electricity supply agreement.
[3] The Defendants, Planet Energy (Ontario) Corp., Planet Energy Corp. and ACN Planet Energy (collectively “Planet Energy”) argued in their factum that the proposed additional claim is clearly statute-barred and ought not to be permitted.
[4] In this case, I am not convinced that I am in a position at this time, to refuse amendments on basis that the underlying factual matrix was discoverable at any specific point of time.
[5] Rule 26 directs amendments ought to be allowed on terms as are just. Here the trial judge will be better suited to assess when key elements of the additional claims were discoverable.
[6] Counsel seems to have been at cross purposes in addressing whether this Motion was ultimately to go on consent or not. More frank communication would have helped. The Defendant Planet Energy’s factum clearly put the availability of the amendment in issue based upon a limitation argument. Whether or not that position was forcefully argued on the return of the Motion is not the sole issue to be considered when costs are addressed.
[7] Here, on a previous adjournment flowing from inadequate time having been booked by the moving party, my Colleague Master Pope awarded 4 hours of costs to Planet Energy. The scale was not set out in her Order.
[8] I feel $300 per hour is a relatively reasonable and proportional partial indemnity allowance for Simplified Matters. I calculate that amount as $1,200 plus HST for a total of $1,356.
[9] Leave to issue amended claim in form of Schedule “A” to the Notice of Motion is granted. On consent of Defendants, Hussam Mufti is also added as a Defendant.
[10] The Plaintiff’s motion originally sought to add a further pleading of fraud. That portion of Motion was withdrawn but required response by Planet Energy’s counsel.
[11] This is a 2013 Action. The parties need to move it forward. Planet Energy has already used its 2 hour simplified rule discovery of the Plaintiff based upon the original pleading
[12] I am therefore permitting a further two hour discovery by Planet Energy to address those matters which flow from the present amendments.
[13] Planet Energy’s counsel relied upon Yeoman v Meyer, 2015 ONSC 716 at paragraph 13 to support the argument that even if they lost the motion opposing amendments, they should be entitled to costs as the Plaintiff was receiving an indulgence.
[14] In 1996 in Haikola v Arasenau, 1996 36 (ON CA), 27 O.R. (3d) 576, the Court of Appeal addressed the consequences of a significant amendment two weeks before trial. There the Court awarded costs thrown away on a solicitor and client basis.
[15] Here we are a long way before trial. Nevertheless the second discovery is clearly entirely due to the amendments now being permitted. The Defendants sought $5,000 for additional examination etc. I feel a cost contribution in the circumstances of this case ought to be made, but have determined that the sum of $3,500 (all in) is adequate recognition of the extra costs being generated by the amendments to the claim. This amount is based in part on my view that in a case like this, there ought to be an attempt to have the fees reflect the amount in issue and the allegations made.
[16] The case law on the calculation of partial indemnity awards in this area is somewhat inconsistent and shifting. Relatively recently in Stetson Oil & Gas Ltd, 2013 ONSC 521. Justice Newbould awarded judgment to the Plaintiff a judgment for more than $16 million. The Plaintiff sought 2.1 million dollar on account of costs. Justice Newbould awarded $1.4 million (tax in). His Honour observed that the now outdated 2002 “Cost Grid”was not appropriate. At Para. 22 of his reasons he notes: “These rates are completely outdated and unrealistic for an action fought by two major downtown Toronto law firms”.
[17] However, I also have to consider proportionality in a simplified rules case where the total claim is less than $100,000. When one party chooses to hire a major Canadian law firm, the Court needs to weigh, as well, the reasonable expectation of the other litigants. I am therefore satisfied that a total credit to the Respondent Planet Energy of $1,356 for the adjournment plus $3,500 for the necessitated additional costs, being a total of $4,856, will meet the requirement of an “equality of arms” in this case.
[18] The parties clearly had discussions and exchanges of offers trying to resolve this case. A large time period of the hearing was spent reflecting on what was an effective acceptance of an offer regarding the ultimate terms of this Order. I am satisfied that in the end, as the Plaintiff was unwilling to meet the overall costs demands of Planet Energy, it was necessary to proceed with the Motion on which the Plaintiff was successful.
[19] Adjusting for various amendments to the relief originally sought and in part abandoned , I am fixing the costs of the Motion payable to the Plaintiff by Planet Energy at $1695, so that the ultimate net amount to be paid by the plaintiff to Planet Energy is fixed at $3,161, payable within 60 days.
E.102/DS __________________
Master D.E. Short