ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV4234, 2007
DATE: 2015/07/21
B E T W E E N:
KATHLEEN MADISEN
Michael C. Birnie, for the Plaintiff
Plaintiff
- and -
NINDON INVESTMENTS LTD.,
DONALD DUBYTZ and NING LOW
Gary J. Marcuccio, for the Defendants
Defendants
HEARD: In Writing, No one appearing
REASONS ON COSTS
ellies j.
[1] For reasons released on June 19, 2015 (2015 ONSC 3786), I granted the plaintiff’s motion to set aside the registrar’s dismissal order. I indicated that I was not inclined to award the plaintiff her costs and invited written submissions in the event that the parties were unable to agree on that issue. Apparently, they were not. These reasons follow my receipt and review of their written submissions.
[2] The plaintiff accepts that she ought not to be awarded her costs. However, she submits that the same should be true with respect to the defendants. As I understand it, the plaintiff’s position is based on two propositions:
(1) that this was a case in which the defendants ought to have consented to the relief sought in the motion; and
(2) that the cases relied upon by the defendants in support of their request for costs are distinguishable from this one.
[3] I am unable to agree with either proposition.
[4] Although the defendants failed to establish actual prejudice arising from the delay, there was a strong presumption of prejudice in this case that had to be rebutted by the plaintiff. The cause of action arose in 2001. The limitation period expired in November, 2007. By the time the action was administratively dismissed in March, 2013, the limitation period had been expired for over five years. As I pointed out in my reasons on the motion, the presumption of prejudice arising from the expiry of a limitation period grows stronger with the passage of time in most cases. Therefore, on this basis alone, there was nothing unreasonable in the defendants refusing to consent to the relief sought in the motion.
[5] The plaintiff also submits that the defendants ought to have consented on the basis that the plaintiff’s lawyer never received the status notice and on the strength of the jurisprudence to which I made reference in my earlier reasons, in which courts have demonstrated a strong reluctance to dismiss in such circumstances.
[6] I have two problems with this argument. The first is that, as the defendants pointed out during the hearing of the motion, the plaintiff’s lawyer knew that this action was already perched at the precipice of an administrative dismissal at the time that the status notice of November 30, 2012, was issued by the court, even though it was never received by plaintiff’s counsel.
[7] The second is the length of time it took for the plaintiff’s lawyer to discover that the action had actually fallen over the edge. The November 30, 2012, deadline had been set on consent. However, it was not until August, 2014, nearly two years later, that the dismissal order was discovered by the plaintiff’s lawyer.
[8] In these circumstances, I do not believe that the defendants should be deprived of their costs on the basis that they opposed the plaintiff’s request.
[9] Nor do I believe that the cases relied upon by the defendants in support of their request for costs are distinguishable from the present one on the basis put forward on behalf of the plaintiff. In Lake Avenue Resort Park Inc. v. Korpela, 2014 ONSC 2299, [2014] O.J. No. 1829, and Liu v. Berbatiotis, 2014 ONSC 4741, [2014] O.J. No. 3889, Master Hawkins awarded the defendants their costs against the successful plaintiffs in motions to set aside dismissal orders. In both cases, he held that the prejudice to the plaintiff of a dismissal outweighed the prejudice to the defendants that would arise by setting it aside. Although I did not say so explicitly in my reasons on this motion, the same is necessarily true in this case. I held that the plaintiff had rebutted the presumption of prejudice and had successfully refuted the defendants’ allegations of actual prejudice. Thereafter, just as Master Hawkins did in Lake and Liu, I engaged in the balancing exercise required by the Court of Appeal’s decision in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179. My finding that the defendants had suffered no prejudice simply meant that there was nothing on the defendants’ side of the scale to counterbalance the prejudice suffered by the plaintiff, who had her action dismissed following the expiry of a limitation period.
[10] In both Lake and Liu, Master Hawkins held that he had granted the plaintiff an indulgence. In both cases (Lake, at para. 66; Liu, at para. 90) he wrote:
The price of an indulgence is the payment of the costs of those who have sought unsuccessfully to prevent its being granted. See Fox v. Bourget (1987), 17 C.P.C. (2d) 94 (Ont. Dist. Ct.).
[11] I believe the same is true in this case. For that reason, the defendants should have their costs.
[12] The defendants seek the sum of $6,243.75 on a substantial indemnity basis, disbursements of $165.06, as well as HST on both amounts. The plaintiff has made no submissions regarding either the scale or the quantum of the costs sought by the defendants.
[13] The defendants support their request for substantial indemnity costs on what amount to three grounds, namely that:
(a) the plaintiff never attempted to resolve the matter for “anything other than a full reinstatement of the action without conditions”;
(b) the plaintiff continues to “hold back undertakings in her possession that would have been helpful to the defendant in determining how to proceed in this action”; and
(c) the defendants were forced to revise and redraft material they had already prepared for the motion after the plaintiff served a factum and supplementary affidavit material one week before the motion was to be heard, resulting in delay and increased costs to the defendants.
[14] I see no reason why any of these grounds should result in costs on a substantial indemnity scale, rather than increased costs on a partial indemnity scale.
[15] The only thing that the plaintiff could possibly seek in her motion is a “full reinstatement” of her action. There was no such thing as a “partial reinstatement”, at least of which I am aware. The defendants have not indicated what “conditions” they sought to impose. Therefore, it is not possible to determine whether the plaintiff was unreasonable in refusing to agree to those conditions.
[16] In resisting the motion, the defendants relied most heavily on the ground of actual prejudice relating to missing witness evidence, not on missing documents or uncertainty about missing documents arising from unfulfilled undertakings.
[17] Dealing with the last ground, the original motion record was filed by the plaintiff’s lawyer, not by counsel appearing on this motion. That motion record was admittedly “thin”. However, at the time it was filed, it was more important to file the record quickly than to ensure that it was as fulsome as it could be made with the luxury of time, given the third factor in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d (2002) 48 C.P.C. (5th) 93 (Ont. Div. Ct.). The supplementary material of which the defendants complain was later filed by counsel who appeared for the plaintiff on the motion and was much more fulsome. It included an affidavit sworn by the plaintiff’s lawyer. This would not have been permissible at the time the first motion materials were filed, given that a lawyer should not appear on his own affidavit. The supplementary motion record did not contain any unnecessary evidence. Indeed, just the opposite. In my view, this is not the kind of conduct within a proceeding that should result in costs on a higher scale.
[18] For these reasons, the defendants shall be paid their partial indemnity costs in the amount of $4,162.50, together with disbursements in the amount of $165.06, and HST on both sums in the amount of $562.59, for total partial indemnity costs payable by the plaintiff in the amount of $4,890.15.
The Honourable Mr. Justice M.G. Ellies
Released: July 21, 2015
COURT FILE NO.: CV4234, 2007
DATE: 2015/07/21
ONTARIO
SUPERIOR COURT OF JUSTICE
KATHLEEN MADISEN
Plaintiff
– and –
NINDON INVESTMENTS LTD.,
DONALD DUBYTZ and NING LOW
Defendants
REASONS ON COSTS
Ellies J.
Released: July 21, 2015