SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-431552-00A1
DATE: 2015-08-14
RE: DEBRA FLOM
Plaintiff
- and -
BROWN WINDOW CORPORATION and HOMETECH WINDOW CORPORATION
Defendants
and
INEX SPACER INC., LASERSEAL INSULATING GLASS LIMITED, GUARDIAN GLASS LIMITED, WOODROW EARLE and JOHN DOE CORPORATION
Third Parties
BEFORE: Justice M. D. Faieta
COUNSEL:
Allan Sternberg, for the Plaintiff
L. De Thomasis, for the Defendants
Mordy Mednick for Guardian Glass Limited
Rob Moss, for Laserseal Insulating Glass Limited
Daniel Bassili, for Inex Spacer Inc.
No one appearing for Woodrow Earle
HEARD: July 8, 2015
COSTS ENDORSEMENT
[1] The Plaintiff brings this action for damages arising from the purchase of allegedly defective glass windows that were installed at her cottage property. The Defendants were the suppliers of the doors with the allegedly faulty glass windows. The windows and doors are allegedly defective because moisture has accumulated between the two panes of glass in the windows and doors. The Defendants have commenced a third party claim in respect of the doors against: 1) Inex Spacer Inc. which allegedly makes and supplies glass edge spacers for the doors; 2) Guardian Glass Limited, which allegedly manufactured and produced the glass used in the doors; 3) Laserseal Insulating Glass Limited, which produced or sold the allegedly defective glass used in the doors; 4) Woodrow Earle and John Doe Corporation, who installed or were responsible for the installation of the allegedly defective doors for the Plaintiff.
[2] Inex, Guardian and Laserseal (the “Settling Third Parties”) and the Defendants settled the Third Party Claim in May 2015.
[3] By letter dated May 27, 2015 the Plaintiff demanded that the parties immediately produce a copy of the Settlement Agreement, or at the very least, disclose its substantive terms failing which she would bring an urgent motion for disclosure.
[4] By email dated June 1, 2015, Laserseal advised the Plaintiff that it had no issue with the terms of settlement being disclosed.
[5] By email dated June 1, 2015, Guardian advised the Plaintiff that it refused to disclose the terms of the settlement as Guardian was not a party to the main action and did not defend against the main action.
[6] By email dated June 9, 2015 the Defendants disclosed the following information regarding the settlement to the Plaintiff:
the settlement with the Third Parties does not include any agreements that alter the landscape of the litigation;
the Defendant is to execute a full and final release in exchange for payment of an undisclosed sum;
the Defendants/Settling Third Parties consent to a without costs dismissal of the Third Party Claim.
[7] The parties attended Civil Practice Court on June 9, 2015 to schedule a motion for the disclosure of the Settlement Agreement. A hearing date of July 8, 2015 was obtained for this motion.
[8] By letter dated June 10, 2015, the Plaintiff advised the Defendant and the Settling Third Parties that further information regarding the settlement was required, and specifically whether the settlement obliged experts retained by the Settling Third Parties to give evidence at trial. The Plaintiff asked the Defendants to provide a copy of the Settlement Agreement with those portions that did not alter the landscape of the litigation being redacted. The Plaintiff would then review that redacted document and decide whether to proceed with the motion for the disclosure of the Settlement Agreement.
[9] By letter dated June 11, 2015 counsel for Inex advised that it did not object to the disclosure of the Settlement Agreement but did not want to impair the confidentiality that the Defendant believed should attach to them as the Defendant was still subject to a trial in this matter.
[10] By email dated June 12, 2015 the Plaintiff repeated his request for a redacted copy of the Settlement Agreement by the end of the day failing which he would prepare his Motion Record.
[11] By email dated June 12, 2015, Laserseal advised the Plaintiff that there was no “Settlement Agreement” but rather that the terms of the settlement were outlined in an exchange of emails and that the Plaintiff had been given the substance of those emails earlier.
[12] No further affidavit evidence was provided by any of the parties. However, counsel for the Plaintiff advised the Curt that on June 19, 2015 he was given the emails that were exchanged as well as a draft form of the release by two of the third parties. Counsel for the Plaintiff also advised that the Plaintiff was content with that information and asked for costs of $1,500.00 but the other parties refused to pay this amount.
[13] The Settling Third Parties also seek their costs of responding to this motion.
[14] The failure of the parties to agree on the issue of whether costs of this abandoned motion should be awarded, and who should pay for them, led to the parties litigating in an abbreviated manner the merits of the motion given that an award of costs typically is given to the successful party(s).
[15] In my view, it is remarkable that the parties ask this Court to decide the merits of this motion in the abstract solely in order to help inform whether costs should be paid and by whom. I refuse to do so. This motion for costs was triggered by the Plaintiff’s demand that it be paid its costs of $1,500.00, which increased to about $5,700.00 on a partial indemnity basis by the time this motion was heard. It would have been sensible for the Plaintiff not to seek her costs of this motion given that she was provided with information about the terms of the Settlement Agreement prior to preparing the motion material and, in any event, was satisfied with the information provided about three weeks prior to the hearing of this motion. To proceed with the hearing of this motion solely to support its claim for its costs of this abandoned motion, in these circumstances, was a waste of the resources of this Court as well as counsel for the other parties that appeared at the hearing of this motion.
[16] I dismiss this motion and refuse to award costs to any party.
Mr. Justice M. Faieta
Date: August 14, 2015