ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-11,267/2008
DATE: 2015-07-29
BETWEEN:
Anne Marie Szarko
Plaintiff
– and –
Dr. Guillaume Racicot Dentistry Professional Corporation
Defendants
Michael A. Gauthier, for the Plaintiff, for the
Eric S. Baum, for the Defendants
HEARD: Written Submissions
RULING ON COSTS
GAUTHIER J.
[1] On June 15, 2015, I denied the defendants’ request to amend the litigation timetable in the within action, and to obtain a date for a proposed summary judgment motion. The defendants’ motion was not properly before the court. I found that the defendants had failed to pursue the matter of summary judgment in a diligent manner.
[2] I further ordered that the defendants could not bring a motion for summary judgment without leave of the court.
[3] Finally, I invited written submissions on costs of the June 10, 2015, proceedings. I have received and reviewed those submissions.
Plaintiff’s Position:
[4] The plaintiff seeks partial indemnity costs of $10,090.72, including disbursements and HST. The costs claimed include services provided to the plaintiff in connection with the earlier motion by the defendants for summary judgment, which was abandoned. They further include the costs associated with the January proceeding dealing with the litigation timetable.
[5] The plaintiff has been put to significant expense in responding to two summary judgment motions, neither of which proceeded as a result of the defendants’ actions. The costs submissions outlined, in great detail, all of the steps taken on behalf of the plaintiff, which she says were unnecessary. Had the plaintiff known that the defendants’ motion materials were never filed with the court, she would not have incurred the expense that she has. It is the plaintiff’s position that those costs are Costs Thrown Away, for which she should be reimbursed.
[6] The plaintiff submits that the defendants intentionally did not properly file their motion material, and ascribes an improper motive to that conduct. The plaintiff further relies upon the defendant’s failure to respond to numerous inquiries regarding the status of the motion and the availability of their witness for cross-examination.
[7] The plaintiff objects to the defendants’ written costs submissions, characterizing them as containing inaccurate and misleading information, inappropriate references to without prejudice discussions which were held between counsel, and including an untested affidavit which refers to matters never discussed at the motion.
Defendant’s Position:
[8] A determination of costs, at this time, and in particular, of any “Costs Thrown Away”, is premature, given that the defendants have brought a motion, returnable on August 28, 2015, for leave to proceed with a motion for summary judgment. The matter of costs should be reserved until following the hearing of the defendants’ leave motion, and if successful, the hearing of the summary judgment motion itself.
[9] The costs the plaintiff seeks to recover are in relation (a) the first summary judgment motion which was settled prior to the date before which the defendants were required to file their motion materials, (b) the responding materials for the second summary judgment motion are nearly identical to those earlier served by the plaintiff, and, (c) cross-examinations on affidavits and examinations for discovery were conducted simultaneously on March 27, 2015, at the plaintiff’s request. “It is artificial and unreasonable to attempt to divide the two for the purposes of costs.”
[10] If costs are awarded to the plaintiff, they should be only for two hours for the additional material in the second motion record and for counsel’s attendance at court on June 10, 2015.
[11] It has always been the defendants’ intention to move for summary judgment and they deny having engaged in any conduct designed to delay the action.
[12] As indicated, the defendants’ materials make reference to the Affidavit of Mario E. Delgado, apparently included as part of the costs submissions, and refer to the plaintiff’s earlier actions “thwarting” previous attempts at moving for summary judgment. Any present delay “is partially, if not entirely, attributable to the plaintiff’s belated insistence on examining the defendants’ expert, Dr. Laura Tam, despite the parties’ long-standing agreement that the experts would not be cross-examined” according to the defendants.
[13] The defendants further indicate that they believed, based on correspondence, that they had the plaintiff’s consent to adjourn the June 10, 2015, motion to permit for the cross-examination of Dr. Tam.
Analysis:
[14] Although the defendants’ costs submissions make reference to having enclosed a copy of the Notice of Motion and Affidavit of Mario E. Delgado, neither document was in fact attached to the costs submissions. In any event, I agree with the plaintiff that such material is not properly included in a submission on costs.
[15] While I agree with the defendants that it is premature to deal with all of the costs sought to be recovered by the plaintiff, at this time, given the upcoming motion for leave, I do not accept the suggestion that the proper quantification of any costs awarded to the plaintiff should be restricted to the two hour period suggested by the defendants.
[16] The defendants’ characterization of the plaintiff’s “belated insistence on examining the defendants’ expert, Dr. Laura Tam, despite the parties’ long-standing agreement that the experts would not be cross-examined”, as being responsible for any present delay, is incorrect. As early as mid-March, 2015, the defendants were made aware of the plaintiff’s change of position about the need to cross-examine Dr. Tam, in connection with the proposed summary judgment motion.
[17] The plaintiff made numerous requests, between mid-March and mid-May, for Dr. Tam’s availability, all of which were ignored by the defendants. To now lay the blame for delay at the feet of the plaintiff is not appropriate.
[18] Likewise, I have some difficulty with the defendants’ submission that they believed that they had the plaintiff’s consent to adjourn the June 10, 2015, motion. The plaintiff repeatedly requested that the defendants address the need to amend the litigation timetable, right up to June 1, 2015. No response came until June 5,2015, when the defendants attempted to late file their motion materials. Up to that point, it does not appear that the plaintiff was aware of any attempts by the defendants to vacate the June 10, 2015, date. At that point in time, the plaintiff was justified in objecting to the late filing of the materials and to no longer consent to an adjournment of the motion, which was not properly before the court.
[19] In assessing the quantum of the costs the successful plaintiff should be awarded, it is appropriate to not include costs relating to the pleadings in this matter, either for the first summary judgment motion, or the second one. Costs for those can be dealt with after the defendants’ leave motion is addressed, and after their summary judgment motion is adjudicated, if permitted to proceed.
[20] The plaintiff is however entitled to those costs incurred for unnecessary steps she had to take as a failure of the defendants to respond to correspondence, and to properly file their motion materials in advance of the fixed date of June 10, 2015, including attending before the court on June 10, 2015, correspondence after early March, 2015, leading up to the June date, and for preparation of the bill of costs and submissions.
[21] A reasonable amount of costs in the circumstances is $1,500 plus HST. Those costs shall be paid within 30 days of today’s date.
Order:
[22] The Defendants shall pay the Plaintiff her costs for the June 10, 2015, court appearance, and related matters, fixed in the amount of $1,500 plus HST, within 30 days of today’s date.
The Honourable Madam Justice Louise L. Gauthier
Released: July 29, 2015
2015 ONSC 4818
COURT FILE NO.: C-11,267/2008
DATE: 2015-07-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anne Marie Szarko
Plaintiff
– and –
Dr. Guillaume Racicot Dentistry Professional Corporation
Defendants
RULING ON COSTS
Gauthier J.
Released: July 29, 2015