BARRIE COURT FILE NO.: CV-14-0815
DATE: 20150811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD BEST
Moving Party (Respondent/Plaintiff)
– and –
GERALD LANCASTER REX RANKING; SEBASTIEN JEAN KWIDZINSKI; LORNE STEPHEN SILVER; COLIN DAVID PENDRITH; PAUL BARKER SCHABAS; ANDREW JOHN ROMAN; MA’ANIT TZIPORA ZEMEL; FASKEN MARTINEAU DUMOULIN LLP; CASSELS BROCK & BLACKWELL LLP; BLAKE CASSELS & GRAYDON LLP; MILLER THOMSON LLP; KINGSLAND ESTATES LIMITED; RICHARD IVAN COX; ERIC IAIN STEWART DEANE; MARCUS ANDREW HATCH; PHILIP ST. EVAL ATKINSON; PRICEWATERHOUSECOOPERS EAST CARIBBEAN (FORMERLY ‘PRICEWATERHOUSECOOPER’); ONTARIO PROVINCIAL POLICE; PEEL REGIONAL POLICE SERVICE a.k.a. PEEL REGIONAL POLICE; DURHAM REGIONAL POLICE SERVICE; MARTY KEARNS; JEFFERY R. VIBERT; GEORGE DMYTRUK; LAURIE RUSHBROOK; JAMES (JIM) ARTHUR VAN ALLEN; BEHAVIOURAL SCIENCE SOLUTIONS GROUP INC.; TAMARA JEAN WILLIAMSON; INVESTIGATIVE SOLUTIONS NETWORK INC.; TORONTO POLICE ASSOCIATION; JANE DOE #1; JANE DOE #2; JANE DOE #3, JANE DOE #4; JANE DOE #5; JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE #5;
Respondents (Applicants/Defendants)
Paul Slansky, for the Plaintiff
Mark Polley/Jessica Prince, for the Defendants PricewaterhouseCoopers East Carribean (Formerly ‘PricewaterhouseCoopers’), Kingsland Estates Limited, Philip St. Eval Atkinson, Richard Ivan Cox and Marcus Andrew Hatch.
HEARD: in writing
EBERHARD J.
[1] PricewaterhouseCoopers East Caribbean (Formerly ‘PricewaterhouseCoopers’), Kingsland Estates Limited, Philip St. Eval Atkinson, Richard Ivan Cox and Marcus Andrew Hatch are among the Defendants in this action brought by the Plaintiff Donald Best, referred to as the “Barbados Defendants”. Since other Defendants are not involved in the issues before me, for ease of reference I will refer to the parties merely as Plaintiff and Defendants.
[2] The Plaintiff seeks leave to appeal the costs order of McCarthy J. made April 15, 2015 in favour of the Defendants.
[3] McCarthy J. is appointed case management judge for this action. Considering the criteria to obtain such an appointment, I may infer that the case is complicated and requiring firm procedural control. This requires judicial inventiveness and begs for the exercise of discretion.
[4] The costs arose over disputes as to the timing of a motion by the Defendants to challenge jurisdiction in the context of a pending motion by other Defendants in the action which might have rendered the issue moot and then the right to examine two of the Defendants on issues relating to jurisdiction. Notwithstanding that these were procedural issues appropriate for a scheduled case conference with the case management judge, despite an exchange of warnings from each side, the Plaintiff noted the Defendants in default. The Defendants were put to the expense of moving to set aside the noting in default and the Plaintiff opposed that motion until the Plaintiff’s motion to examine failed whereupon the Plaintiff did consent to set aside the noting in default.
[5] This is unlike the cases cited by the Plaintiff[^1] to suggest that awarding the Defendants costs for a consent setting aside of a noting in default is wrong in law. The case management judge here ruled that the noting in default in spite of the clear indication of intention to defend generated a series of expensive procedures. He considered the context and listed four reasons why the Plaintiff should not have noted the Defendants in default, describing the tactic and its sequelae as unreasonable, unnecessary, regrettable and time consuming also remarking that the issues could have and should have been sought and obtained at the case conference scheduled for less than two weeks later.
[6] The Plaintiff’s argument on this motion for leave attempts to ignore the totality of the reasons of McCarthy J. and suggest that he incorrectly[^2] based his decision solely on intention to defend. That is simply not so. In brief handwritten endorsement McCarthy J. averted amply to the several issues in dispute that generated the noting in default, the alternative means of addressing delay in expeditiously dealing with jurisdiction[^3] in a case managed action, and, unfortunately for the Plaintiff, whose litigation conduct was giving rise to unnecessary complication and expense.
[7] I do not find reason to doubt the correctness of the decision.
[8] Also, the Plaintiff has not demonstrated his argument that the costs decision conflicts with Expressview (supra) in that he identified why the Plaintiff should not get costs for the Defendants’ default that was set aside and did identify a range of litigation misconduct by the Plaintiff. Nor is an exercise of discretion to award costs to the Defendants in conflict with the decision in Schrieber[^4] but merely a different choice open to him based on his view of the Plaintiff’s tactics.
[9] Further, the cost dispute between these litigants raises no issue of general importance making it desirable that leave be granted. The Plaintiff argues an error of quantum as McCarthy J. imposed slightly more in substantial indemnity costs than full indemnity costs claimed. Remembering that he was fixing costs, not assessing them, he had discretion in what proportion he would allow. A better course than appeal would be to point out the possible discrepancy to the case management judge to be taken account on another occasion in the litigation. An appeal would simply be a request for another court to substitute its discretion, or mathematics. It is de minimus and does not elevate this costs award to one that should be granted a further expensive proceeding to consider.
[10] The motion is dismissed. Leave to appeal is denied.
EBERHARD J.
Released: August 11, 2015
[^1]: Expressview v. Dako [2002] O.J. No. 4078 (SCJ), Metro Toronto Condominium Corp 706 v. Bardmore [1991] O.J. No. 717 (CA), [1991] O.J. No. 717 (CA) – see also Metro Toronto Condominium Corp 706 v. Bardmore, 1991 7095 (ON CA)
[^2]: Nobosoft v No Borders, 2007 ONCA 444
[^3]: Sault College of Applied Arts and Technology v. Agresso [2006] O.J. No. 5265