720441 Ontario Inc. v. The Boiler et al
CITATION: 720441 Ontario Inc. v. The Boiler et al, 2015 ONSC 4841
COURT FILE NO.: 03-CV-254717
Heard: November 7, 2014; March 11 and June 23, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 720441 Ontario Inc. v. The Boiler et al
BEFORE: Master Joan Haberman
COUNSEL: Dobson, C. for Dominion of Canada General Insurance Company Salsberg, B. for the plaintiffs Forrest, B. for Dynes Insurance Brokers Limited et al. Van Zandvoort, M. for Carpenters Co. et al.
REASONS
Master Haberman:
[1] These Reasons deal with the continuation and resolution of 3 of 4 motions for security for costs brought by various defendants in this action. All were originally scheduled to be heard together on November 7, 2014. Despite my misgivings, counsel assured me dealing with these matters together would save time and costs all around and could be done in one day. They then proceeded to file in excess of three boxfuls of materials.
[2] As a result, the first date scheduled, November 7, 2014, was used to deal only with two issues: whether the plaintiff could file new materials late in the day and whether the plaintiff had established impecuniosity, an issue common to all four motions. On March 11, 2015, I dealt with the issue of entitlement of each of the defendants to security for costs orders and on the last attendance on June 23, 2015, I heard submissions from Dynes, Carpenter and Dominion regarding the quantum of security to be posted if entitlement was found.
[3] On December 19, 2014, I released my Reasons dismissing the plaintiffs’ request for leave to file new materials. On January 9, 2015, I released my Reasons pertaining to the issue of alleged impecuniosity, finding that the plaintiffs had failed to prove that their financial positions could be characterized as such. On June 3, 2015, I released Reasons dealing with Boiler’s entitlement to security for costs, and though I held that they are, no order was made at that time as a significant sum was being sought and the support provided to the plaintiffs and the court needed to be fleshed out. Counsel for Boiler was not yet ready to argue quantum when we reconvened on June 23, 2015, so they have been told to book 2 hours on a Regular Motions list to that end. I await their return.
[4] Each defendant moves under more than one ground, but in view of my earlier findings with respect to Boiler’s entitlement to the order sought, two of those grounds, common to the group, have, for the most part, been decided. There is, in my view, a prima facie basis for making the order sought in favour of all moving defendants pursuant to subrules 56.01(1) (a) and (d).
[5] The third ground, subrule 56.01(1)(e) requires each of the defendants to show that it appears that the action is frivolous and vexatious as against their respective client (see Hallum v. Canadian Memorial Chiropractic College (1989), 1989 4354 (ON SC), 70 OR (2d) 119, where Doherty J. stated: Rule 56.01 which empowers a court to order security for costs established a two-step inquiry. First, the defendant must show that it “appears” that one of the six factors set out in paragraphs (a) through (f) of Rule 56.01 exits).
[6] I will deal with subrule (e) briefly in these Reasons. As I have stated in my earlier reasons, a defendant need only establish entitlement to security for costs under one subrule, regardless of how many subrules he relies on. Thus, if the defendants succeed under subrule (a) or (d), that will be sufficient to grant the relief sought.
THE PLAINTIFFF’ ONUS WHERE IMPECUNIOSITY HAS NOT BEEN MADE OUT
[7] Where a prima facie case for security has been made out, the onus shifts to the plaintiff. That onus will vary depending on whether the court finds that the plaintiff has established that they are impecunious. As I noted in my earlier Reasons:
As a result, where impecuniosity is not alleged or not proven, it is not enough for a plaintiff to show that their claim is not devoid of merit. In these instances, the onus is on the plaintiff to show that their action has a good chance of success in order to avoid the imposition of the order sought (see Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP 2013 ONSC 686, 2013 CarswellOnt 1630, and on appeal, 2013 CarswellOnt 9210; Stojanovic v. Bulut, 2011 ONSC 874; Cigar500.com Inc. v. Ashton Distributors Inc., 2009 46451 (ON SC), [2009] OJ No. 3680; Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 OR (3d) 131).
Where the plaintiff is able to demonstrate this, the order that is just could include that no security at all need be posted.
[8] As a result of my earlier findings regarding impecuniosity, it is not enough for the plaintiffs to simply show that their action is not devoid of merit. The onus on the plaintiffs is to demonstrate that the action has a good chance of success vis a vis each of the moving parties. I have already found that not to be the case as regards Boiler. However, this is an issue that must be explored individually against each defendant in the context of the claim against them when we reach the second step of the Hallum analysis.
[9] One common issue among all four sets of defendants involves damages. It is conceded that Dominion has already made an advance payment of $250,000. It was therefore critical for the plaintiffs to demonstrate that they have a good chance of recovering in excess of that amount when the action goes to trial. Having a good case on liability is of little value if the court finds that they have already been paid what the case is worth.
[10] The plaintiffs tendered little evidence regarding their damages. In my earlier Reasons dealing with the issue of impecuniosity, I already noted the problems with the financial statements that were produced. There is really no evidence before the court from which I can conclude that there is a good chance that the damages that could be proven at trial will exceed the $250,000 advance payment that was made.
[11] This problem impacts on all four defence motions. Even if the plaintiffs demonstrate that they stand a good chance of proving liability, if they have already been compensated to the full extent of their provable claim, the order it is just is to require that they post security.
[12] I was also taken to no evidence to support the claim that the late Broner’s illness was in any way caused or exacerbated by mould that developed as a result of the untreated water damage. Nor was evidence presented to establish that mould developed to a level where it might impact on health, or that mould was, in fact, present at higher levels after these events.
[13] This area of the damage claim was completely ignored by the plaintiffs, except for an assertion by Conen in her affidavit. She states that she believes that Bronen’s incapacity and subsequent death were caused by the mould that developed as a result of the failure by the defendants to address the water damage caused by the flooding. It is trite to state that the plaintiffs’ onus requires that they do more than simply assert their belief in a state of affairs.
[14] Further, while the plaintiffs took me to no evidence of Bronen’s pre-existing health and his possible susceptibility to being affected as he claims and to the degree claimed, the defendant, Carpenter, produced various medical reports that they obtained from the plaintiff as part of the discovery process. These demonstrate that Broner had a significant history of heart decease and related issues, which were ultimately responsible for his untimely death.
[15] The plaintiffs have also included more than five pages of particulars regarding their alleged entitlement to punitive and exemplary damages. Again, I have not been taken to any evidentiary support for any aspect of this part of the claim.
[16] The plaintiffs responded very briefly to all 4 motions, both in terms of the evidence they filed and the submissions made at the various hearings. For the most part, Ella Conan’s evidence touches only on why Boiler was included in the law suit, relying not on asserted and supported facts, but on what she believed Dominion’s position was vis a vis this party.
[17] In oral submissions, the plaintiffs essentially relied on what appears to be more in the line of res ipsa loquitor than a detailed explanation of why they believe they have a good chance of succeeding against each defendant on both liability and damages, and more importantly, why the court should accept their position.
[18] By way of example, the argument as against Carpenter was linear– the pipe burst, stock and equipment were damaged, the landlord is responsible – but without detail or explanation. The issue of causation was ignored. Why was the landlord responsible? I was taken to no evidence to substantiate the connection between these assertions and the ultimate alleged conclusion.
[19] Nothing of substance was said regarding either Dynes or Dominion during oral submissions and I was taken to no evidence that implicated either in these events.
[20] I was, in fact, taken to virtually no direct evidence regarding any of these defendants that addressed the merits of the action as against any one of them.
THE CLAIMS AGAINST EACH of THESE PARTIES
[21] It is important to note that this action is quite far along. Process issued almost 12 years ago. The defendants have faced various incarnations of the claim, as issues have been added and deleted and new issues have emerged. The current version of the Fresh as Amended Statement of Claim, amended in 2011, runs 69 pages. Comatec claims $5 million for general and special damages and a further $2 million for aggravated, exemplary and punitive damages. Broner (now his estate, through Ella Conen) seeks $1.5 million. Ella has her own action for a further $1.5 million. These numbers suggest potentially serious exposure for the defendants.
[22] In view of the current status of the action, the plaintiffs were well placed to understand the position of each defendant, to seek admissions they could rely on here and to reformulate and focus their theory of the case against each in the context of having had full disclosure. If they are not yet able to do any of this, for the purpose of this motion, it is difficult to imagine that they will be in any better position at trial, nor did they claim that they expected to be. The case essentially is what it is – there was no indication of any future steps to be taken or events to occur that could change the complexion of the action.
[23] A major problem in this action for the plaintiffs, and in the end, for all parties, was the approach taken when drafting the Statement of Claim. Its length and extensive detail led to significant disclosure obligations as no stone was left unturned, no possible allegation omitted. A reader is left with the sense that, at least at the outset of the case, the plaintiffs really had no idea what their case against each defendant would be, so they pleaded very broadly in order to have access to considerable disclosure from the various defendants. But at this stage, having completed that process some time ago, the plaintiffs should have a firm handle on where the case is going and not going against each defendant. The pleading ought to have been simplified.
[24] Yet, the pleading remains as it was when last amended in 2011. By failing to take a focused approach at the outset, instead, throwing everything into the pleading, the plaintiffs created an unnecessary level of complexity. This approach led to lengthy and detailed defence pleadings and a complex, labour intensive discovery process. This is neither a cost effective nor a particularly expedient way to manage litigation.
[25] In this action, in the context of the multitude of allegations that have been made against each of the defendants, I was taken to no direct evidence to support any of them. This is a critical problem for the plaintiffs.
[26] On Zeitoun, supra., the Divisional Court stated that when a plaintiff adduces no evidence addressing the merits of the action:
…it is clearly a failure to show that the claim has a good chance of success or even a reasonable chance of success and, is, in my view, also a failure to show that the claim is not devoid of merit or bound to fail.
[27] In essence, the court is saying that, regardless of the test and the extent of the plaintiff’s onus, the court will find the plaintiff has failed in meeting that onus if he fails to adduce evidence regarding the merits of the case.
Claim against CARPENTER
[28] The action against Carpenter is in their capacity as landlord of the premises where the alleged flood occurred. Comatec alleges that they were entitled to coverage through the landlord’s policy and as a result, did not obtain separate “building” insurance. They take issue with Carpenter’s policy of having allegedly maintained a large self- insured retention and suggest that this made them fiduciaries and subject to an obligation of good faith. All of this, they assert, is actionable.
[29] The plaintiffs also base their claim on the landlord’s alleged failure to perform repairs and maintenance of the leased premises. They allege that, though Carpenter was advised of issues, they failed to remedy them. It is also alleged that the overhead sprinkler system was negligently designed and installed.
[30] Particulars of Carpenter’s alleged negligence go on for a page and a half, followed by a long description of the damages the plaintiffs seek from Carpenter. This is followed by another 2 pages of particulars of negligence, more claims for damages and 3 pages explaining why they say they are entitled to punitive and exemplary damages. In total, 35 pages of the claim are devoted to discussing what damages Carpenter is allegedly responsible for and why they are liable.
[31] Yet, when it came to this motion, at this late stage of the action, no direct evidence at all was brought to the court’s attention to support any of these allegations, although discoveries are complete and a series of expert reports have already been produced.
[32] Instead, the plaintiffs relied on the discovery transcript of Gary Snodden, the witness produced on behalf of the defendant, Urban Clean. They are not involved in these motions.
[33] The plaintiffs claim that, when cross-examined, Snodden stated that there was a sprinkler leak at the back of the facility and that it was caused by a frozen pipe. As the tenant, Comatec would only have been responsible for maintenance of the pipe, so the plaintiffs submitted that there was an onus on Carpenter to establish that the pipe’s failure was caused by lack of maintenance.
[34] While this might be an appropriate submission to make at trial, assuming Snodden had been quoted accurately, at this hearing and in the context of this motion, and the onus was on the plaintiffs to show they had a good chance of success against Carpenter. They have made no effort to do so, aside from referring to this passage.
[35] Further, those parts of Snodden’s evidence relied on were taken completely out of context. What he actually said was that he assumed the pipe leaked because it may have been frozen. He made it clear that this was only his assumption, in fact, a guess on my part, due to the lack of heat in the building. He agreed, however, that he had not looked for other frozen pipes in the building.
[36] On the basis of the above, I am unable to say that the plaintiffs have satisfied their onus of showing that their case against this defendant has a good chance of success.
[37] I have already found that the plaintiffs do not appear to be ordinarily resident in Ontario and that there is good reason to believe they have insufficient assets to pay a cost order.
[38] As a result, the order that is just is one requiring the plaintiffs to post security for costs, pursuant to subrule 56.01(1)(a), as sought.
[39] In view of these findings, it appears that the action against Carpenter is frivolous and vexatious, thereby meeting the criteria under subrule(e). As Carpenter has not moved under this subrule there is no need for me to comment further.
CLAIM against DOMINION defendants
[40] Dominion of Canada General Insurance is described in the claim as the plaintiff’s “first party insurer.”
[41] The plaintiffs claim that they had a duty to clean up after the flooding, and having undertaken that work, they were required to do so in a professional, competent, careful and diligent manner. It is alleged that the insurers knew or ought to have known of the risks posed by the water and the failure to handle the situation properly, and the alleged risks are then set out, followed by more than a page of particulars of negligence.
[42] Despite the foregoing, it is alleged that Dominion halted the remedial work, though warned by the defendant, Urban Clean, that further work was required.
[43] Dominion claims that that Dominion counted and acknowledged that they had suffered damage of $1.1 million for stock and $550,000 for equipment. They admit that Dominion made an advance payment of $250,000 but claim they accepted it subject to Dominion agreeing to confirm that the equipment could not be repaired and would have to be replaced. The plaintiffs also claim that, though they provided Dominion with evidence regarding the state of the equipment, this confirmation was never received. The court, however, was not taken to evidence regarding the state of the machines.
[44] The plaintiffs allege further that they retained an additional $1.1 in additional coverage for machinery under the Boiler and Machinery policy as well as various other coverages. It has already been shown and I have held, in the context of dealing with Boiler’s entitlement to an order for security for costs, that the plaintiffs have not produced any evidence demonstrating that they had a direct policy of insurance for any coverage through Boiler. Instead, I found that Boiler’s role in these events was strictly as Dominion’s reinsurer. To the extent that they plead that Boiler is responsible for this additional coverage, then Dominion would not responsible for all losses occasioned to the machinery or as a result of this equipment no longer being functional.
[45] Again, the plaintiffs advance a multitude of allegations against this defendant, yet filed no evidence to support any of them, in so far as liability.
[46] There was also no evidence filed to support the damages claimed, an important point, in view of the advance payment of $250,000 made by this defendant. The plaintiffs have not filed any evidence on this motion to suggest that the claim, as it now stands exceeds that figure. For that reason too, I am unable to say that the plaintiffs appear to have a good chance of success in this action as against Dominion or as against any of these defendants.
[47] The plaintiffs have failed to show that the order that is just in the circumstances is anything less than an order for full security for costs to be posted.
[48] Dominion’s motion is therefore granted.
CLAIM against DYNES defendants
[49] Dynes was the insurance broker that apparently arranged for Comatec’s coverage. They are mentioned in the claim for the first time on page 35. The plaintiffs allege that they relied on their expertise and skill to provide them with appropriate advice regarding their needs and they assert that Dynes breached their common law and contractual duties to perform in a professional, competent and diligent fashion.
[50] Almost a full page of particulars of negligence follow, and the plaintiffs allege that if they were insufficiently insured, the Dynes defendants are responsible.
[51] Although the plaintiffs assert that Dynes obtained two policies of insurance for them – one with Dominion for tenant’s property and contents, and the other from Boiler - they have never been able to establish the existence of the alleged Boiler policy.
[52] Unless and until it is established that the plaintiffs were underinsured, they really have no claim against Dynes. The claim against Dynes is thereof only a contingent or alternative one, based on the plaintiffs’ success or lack thereof against Dominion.
[53] This action is 12 year old and has already been through the oral discovery process, so the plaintiffs should have already formulated their theory of the action. They continue to claim they had the appropriate kinds and levels of insurance through Dominion, while bringing forward no evidence of, or even details as to Dynes’ alleged negligence.
[54] Again, I am hard pressed to accept that the plaintiffs have a good chance of success against this defendant. I therefor grant Dyne’s motion for security for costs. That, in my view, is the order that is just in the circumstances.
THE ORDERS
General Comments
[55] All three moving defendants are entitled to an order for security for costs. In view of the absence of evidence to connect any of them to these events in a way that suggests the plaintiffs have a good chance of success against any one of them, compounded by the absence of evidence demonstrating that any judgment they might obtain has a good chance of surpassing the $250,000 advance payment, this is the just order.
[56] In view of the amounts in issue, I asked for and received a more detailed breakdown of the quantum sought, including dockets, from each defendant. The plaintiffs have therefore had access to a considerable amount of information about how each defendant reached the amount they seek.
[57] It is well established that when costs are fixed, the quantum should reflect a number that falls within the reasonable contemplation of the parties. A similar approach should generally be applied when dealing with the quantum of costs to be posted as security, in the context of dealing with those costs already incurred.
[58] Further, security for costs, in most cases, will be ordered on a partial indemnity scale. There will be exceptions, as in contractual actions where an agreement between the parties expressly stipulates that any litigation will result in costs payable at a higher scale. This action does not fall into that category.
[59] It has been the practice of this court for many years to order that security for costs be posted in tranches, in what has been referred to as a “pay-as you go” manner. In some instances, the court provides the quantum for the first tranche only, leaving counsel to resort to the Rule, which provides that a party can return to seek further security as the case moves forward. In other instances, the court may fix the quantum for each tranche in advance.
[60] Dealing with the motions before me, though the case is nearly ready for trial, there are still two opportunities for resolution of the action. I am therefore going to order two tranches only at this time. I am fixing quantum for the first tranche, which includes costs incurred to-date and for the second, dealing with scheduling, preparation for and attendance at mediation and the pre-trial.
[61] While I would have preferred to also fix the costs for preparation for and attendance at trial, the disparity in defence counsels’ prediction for trial duration makes that quite difficult. One party expects 20 days’ of trial, another 25, a third, 30 days. As a result, I am reluctant to make any order about costs for trial at this time. Perhaps after the pre-trial, all parties will have a better estimate.
[62] Dealing still with the motions before me, it is important, in my view, to put the sums that are being claimed in context. This action has been ongoing for 12 years. There are currently five corporate defendants, as well as three individual defendants.
[63] As noted earlier in these Reasons, the statement of claim goes on for 69 pages. It was amended several times, as new claims were added and the amount claimed increased. These amendments led to amended statements of defence. Bronen passed away mid-action, and that led to further pleading complication.
[64] This pleading followed on the heels of a 100-page proof of loss.
[65] Documentary discovery was a significant exercise in the context of the number of defendants and their different roles and the number of issues on the table. Productions included extensive clinical notes and records pertaining to Broner’s health issues. None of them were produced by the plaintiffs, however, in the context of this motion.
[66] Discoveries went on for approximately 35 days. Some were partial days, only, in view of Bronen’s illness and his inability to sit for a full day. Nonetheless, each attendance required preparation.
[67] Discoveries of the plaintiffs gave rise to some 400 undertakings. Compliance was erratic and problematic, resulting in motions.
[68] There was also considerable activity as a result of the plaintiffs’ dealings with the large Amada machine, contrary to a preservation order, and the defendants’ need to return to court repeatedly for compliance with orders already made.
[69] In her order of June 24, 2008, Master Jean (then Sproat) noted that:
o The plaintiffs breached a court order dated February 21, 2005 by failing to produce documents pertaining to the Amada machines;
o They then breached an order of July 26, 2005 by failing to produce or request these documents from Amada;
o They breached a court order of March 8, 2006 by failing to serve a revised affidavit of documents and to deliver an OHIP summary;
o They breached a court order of January 24, 2005 by failing to: clarify what was contained in boxes delivered to them by former counsel; advise the defendants if they would be obtaining certain information from that counsel; and by failing to comply with undertakings given by Broner on his examination for discovery;
o They failed to disclose the contests of the boxes received from former counsel, though ordered again, breaching a further court order of April 22, 2008.
[70] Though the Master gave the plaintiffs “one last chance”, she added:
In my view, the plaintiffs have been subject to numerous orders and have been provided numerous extensions to comply with various orders. This is a case where the plaintiffs have failed to comply on a number of fronts. The case has barely progressed and significant matters such as the inspection of the Amada equipment and questions on liability and damages remain unanswered despite the passage of significant time.
Given the history of the action, I have no confidence that the plaintiffs will fulfill their disclosure obligations (see Cardoso v. Cardoso (1998), 22 CPC (4th) 134 (Ont. S.C.) per Kitely J. at paragraph 17). I am of the view that the plaintiffs’ conduct has shown a consistent and cavalier disregard for their obligations as litigants (see Madonia v. Mulder (2002) 17 CPC (5th) 349 (Ont. S.C.) per McCombs J.)
This is evident from the plaintiffs’ instructions to counsel to bring a motion to terminate their oral examinations for discovery. Additionally, a review of the orders made demonstrate an indifference to the rights of the defendants to inspect the Amada equipment and to disclosure obligations. The plaintiffs have not taken proactive steps to move the action forward.
[71] The Master also noted that she was gravely concerned about a submission from plaintiffs’ counsel, to the effect that it was incumbent on the defendants to move for further orders when the plaintiffs fail to comply in first instance. As she put it:
This attitude unreasonably foists significant costs of litigation upon the defendants.
[72] The Master pointed out that this was all the more confusing in that the plaintiff had consented to these various orders that they then breached.
[73] The plaintiffs cannot now complain that the defendants spent too much time on this file or incurred unnecessary costs. In view of how the action was pled and prosecuted, the numbers before the court are not surprising. There were apparently 27 case conferences, many in large part dealing with the plaintiffs’ ongoing lack of compliance with various court orders. The case history for the file runs 59 pages in length – this, in itself, is rare and shows that an unusually high degree of court intervention was required.
[74] In response to this part of the motions, plaintiffs’ counsel spoke of proportionality and claimed that all those days of discovery were effectively unnecessary and amounted to overkill. But this submission completely misses the point. To the extent that a tremendous amount of work beyond what one would normally expect in this kind of action was required, it appears clear that the plaintiffs were in large part responsible for that, starting with their statement of claim, followed by their ongoing failure to comply with disclosure obligations and, ultimately, their breaches of consent orders. In view of Master Sproat’s Reasons set out above, and the Case History in general, it is fairly clear why the defendants felt the need to dedicate significant resources to this action. As one defence counsel put it, “the claim was a moving target.”
[75] The complexity of the action began with a claim that was more along the lines of wishful thinking than reality. Several amendments to the pleadings, large damage claims, poor compliance with disclosure obligations and the ongoing need for court intervention all worked together to justify most of the time spent and costs incurred to-date.
[76] Counsel advise that discoveries of the plaintiffs were focused largely on damages. In view of the length of the proof of loss, this, too, is not surprising. The value of each item claimed at the time of the loss had to be established in addition to the state it was in just prior to the flood. This involved a lengthy and detailed exploration.
[77] These are all factors I have considered when reviewing the defendants’ submissions in the context of costs incurred. In terms of costs going forward, I have taken the order to the conclusion of mandatory mediation and the pre-trial.
[78] In addition to the amount of time spent, I have also reviewed counsels’ rates. Putting together these materials was not a straightforward exercise for counsel as, over the 12-year span of the action, their rates have changed. I note, for example, that counsel for Carpenter was, at times, high in his calculations of partial indemnity costs but at other times, on the low side. Ultimately, the rate used appears to be an average of those two scenarios, such that the rate is close to accurate. In any event, the plaintiffs took no issue with rates charged.
[79] It would have been extremely helpful had defence counsel conferred and chosen a common approach as to how to go about putting their materials dealing with quantum together instead of coming at the exercise three different ways. It would have also been helpful had they conferred about anticipated length of trial. For whatever reason, this did not occur.
[80] I therefore assume that, to the extent that there is a discrepancy in the quantum claimed, it reflects both counsels’ rates and the nature of the issues each had to deal with in view of their clients’ respective roles in this matter. This is not an order to pay costs but simply an order to post security for costs. When awarding costs, the court fixes them rather than assessing them and so it is when dealing with quantum of security. These numbers are therefore best estimates of what appears reasonable.
[81] I turn to the individual orders.
Carpenter
[82] On the basis of these Reasons and those that precede it, as set out above, it is ordered that:
The plaintiffs shall post security for costs to the credit of this action in favour of the Carpenter defendants, in the amount of $300,000 representing costs incurred to-date, exclusive of the costs awarded for various motions, within 45 days from the date of these Reasons;
This action is stayed, subject to each party’ rights of appeal, until security has been posted as ordered;
If security has been posted as ordered, the parties shall schedule mandatory mediation no later than the end of December 2015, to take place no later than the end of December 2016;
Further security for costs shall be posted to the credit of the action in favour of these defendants in the amount of $20,000 at least 60 days before the date scheduled for such mediation. This represents the costs associated with scheduling, preparing for and attending mediation, to its conclusion as well as for scheduling, preparing for and attending a pre-trial;
If the action has not settled and proceeds to trial, these defendants are at liberty to move for further security for costs.
Dominion
[83] On the basis of these Reasons and those that precede it, as set out above, it is ordered that:
The plaintiffs shall post security for costs to the credit of this action in favour of the Dominion defendants, in the amount of $150,000 representing costs incurred to-date, exclusive of the costs awarded for various motions, within 45 days from the date of these Reasons;
This action is stayed, subject to each party’ rights of appeal, until security has been posted as ordered;
If security has been posted as ordered, the parties shall schedule mandatory mediation no later than the end of December 2015, to take place no later than the end of December 2016;
Further security for costs shall be posted to the credit of the action in favour of these defendants in the amount of $20,000 at least 60 days before the date scheduled for such mediation. This represents the costs associated with scheduling, preparing for and attending mediation, to its conclusion as well as for scheduling, preparing for and attending a pre-trial;
[84] If the action has not settled and proceeds to trial, these defendants are at liberty to move for further security for costs.
Dynes
[85] On the basis of these Reasons and those that precede it, as set out above, it is ordered that:
The plaintiffs shall post security for costs to the credit of this action in favour of the Dynes defendants, in the amount of $80,000 representing costs incurred to-date, exclusive of the costs awarded for various motions, within 45 days from the date of these Reasons;
This action is stayed, subject to each party’ rights of appeal, until security has been posted as ordered;
If security has been posted as ordered, the parties shall schedule mandatory mediation no later than the end of December 2015, to take place no later than the end of December 2016;
Further security for costs shall be posted to the credit of the action in favour of these defendants in the amount of $12,000 at least 60 days before the date scheduled for such mediation. This represents the costs associated with scheduling, preparing for and attending mediation, to its conclusion as well as for scheduling, preparing for and attending a pre-trial;
[86] If the action has not settled and proceeds to trial, these defendants are at liberty to move for further security for costs.
[87] These orders do not include the costs of this motion, which remains to be dealt with. It would probably be best to deal with those by way of written submissions.
Master Joan M. Haberman
Released: July 30 , 2015