Ashim v. Zia, 2015 ONSC 564

SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: Ashim v. Zia, 2015 ONSC 564

COURT FILE NO.: CV-09-02609-00

DATE: 2015 01 27

RE: REMONA ASHIM v. SABRINA ZIA, JAMES ZIA, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY;

AMEER MOHAMED ASHIM, THIRD PARTY

COUNSEL: Dave Bily, for the Defendants, Sabrina Zia and James Zia

Stacey Karellas, for the Third Party, Ameer Mohamed Ashim, the moving party

No one appearing for the Plaintiff or the Defendant State Farm

COSTS ENDORSEMENT

1The Zia defendants successfully opposed the motion for summary judgment brought by the third-party, Ameer Mohammed Ashim, to dismiss the third party claim. Mr. Ashim brought his motion based in large part on the Fault Determination Rules under the Insurance Act, and on evidence given by the parties at their respective examinations for discovery.

2The Zia defendants seek costs on a substantial indemnity basis in the amount of $7,950.03 under rule 20.06. They submit that the basis for the motion was erroneous in law and should not have been brought. They say that the third party acted unreasonably by bringing the motion having regard to the findings of the court that the Fault Determination Rules did not apply. They also refer the contrasting evidence of the parties as to the speed of the third party vehicle at the time of the collision.

3The third party resists the claim for costs of the Zia defendants at this stage, and submits that the costs of the motion should be reserved until the trial of the main action and third party claim. Alternatively, the third party argues that substantial indemnity costs should only be awarded where the court finds reprehensible conduct on the part of the unsuccessful party. According to this argument, where a motion fails because of the interpretation of legal principles or where the moving party reasonably believed at the time the motion was brought that there was no genuine issue requiring a trial, a finding cannot be made under Rule 20.06 that the party acted unreasonably in bringing the motion.

4The amendments to Rule 20, effective January 1, 2010, introduced a number of changes to summary judgment motions in Ontario. Prior to January 1, 2010, the cost ramifications for a party who was unsuccessful in bringing a motion for summary judgment was set out in former subrule 20.06. Prior to January 1, 2010, where the moving party obtained no relief on a motion for summary judgment, it was mandatory under subrule 20.06 for the court to award costs to the responding party on a substantial indemnity basis and to order the moving party to pay them forthwith unless the court was satisfied that the motion was reasonable to bring. Those cost ramifications were daunting, if not draconian in terms of providing access to justice when viewed from today’s perspective.

5When the change was made to the summary judgment rule to add the enhanced fact-finding powers given to the court, a change was also made to subrule 20.06:

COSTS SANCTIONS FOR IMPROPER USE OF RULE

20.06 The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,

(a) the party acted unreasonably by making or responding to the motion; or

(b) the party acted in bad faith for the purpose of delay. O. Reg. 438/08, s. 14.

6The change to Rule 20.06 must be read in context and in keeping with the policy objectives set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. Every motion for summary judgment is now considered to be as viable a litigation route as the traditional process that culminates in a full trial. In order that it is seen as a viable alternative, the Supreme Court of Canada in Hryniak has directed that a summary judgment motion in an appropriate case should be encouraged, rather than discouraged. The change in the costs rule emphasizes this change in direction.

7The former rule mandated substantial indemnity costs against a moving party who was unsuccessful on obtaining any relief on the motion, subject to limited residual discretion of the motion judge. The current rule gives the motions judge generous discretion to fix an order for the payment of costs on a substantial indemnity basis if there is a finding that a party has acted unreasonably by making or responding to the motion, or a party has acted in bad faith for the purpose of delay. This represents not only a change to the test for making a costs award at a higher level, it lowers the economic barrier and therefore the risk to bringing a motion for summary judgment as a proportionate procedure to access timely and affordable justice.

8There is no allegation of bad faith made in the cost submissions received on this motion. Therefore, the only issue with respect to whether I should award substantial indemnity costs to the Zia defendants as the successful party is whether the third party acted unreasonably by bringing the motion in the first place.

9What does it mean for a party to act unreasonably by bringing a motion for summary judgment in a post Hryniak environment? The court in Hryniak was clearly concerned about access to justice, particularly with respect to making litigation routes available to litigants that are proportionate to the case. It is my view a moving party would be seen to have acted unreasonably if:

1. the evidence on the motion was clearly insufficient to show facts on which the court could conclude that there was no genuine issue requiring a trial;

2. the legal basis for the motion was wrong or clearly insufficient for the court to conclude that there was no genuine issue requiring a trial;

3. the evidence and legal principles when applied to the issues on the motion did not engage the economies that Hryniak contemplated as a proportionate, timely and affordable procedure to justify bringing the motion having regard to the nature of the action or prevailing circumstances in the litigation; or

4. no meaningful order is made by the court under Rule 20.05 to assist with the trial management process for the action or that part of the action for which the motion for summary judgment was refused.

10In view of these observations, I do not find it necessary to conclude that the moving party acted egregiously, or in a reprehensible manner by bringing the motion. By concluding that the Fault Determination Rules did not apply to the claim made by the defendants in the third party claim, I found the legal basis for the motion was misplaced and refused summary judgment. Further, because of the contrasting evidence as to the speed of the third party vehicle in which the plaintiff was riding as a passenger, the evidence on the motion was clearly insufficient to show facts on which the court could conclude that there was no genuine issue requiring a trial.

11Accordingly, I find that the third party acted unreasonably in bringing the motion, and that the Zia defendants are entitled to their costs on a substantial indemnity basis.

12When fixing the amount of those costs, I have considered the submissions of the Zia defendants. The costs outline described in paragraph 10 of those submissions is actually a time docket showing the date, explanation and time for each task performed by the lawyers defending the motion for summary judgment. The hours incurred total 23.7 hours. Of those hours, 7 hours were spent to “review/analyze the plaintiff’s motion materials, transcript for examinations for discovery of the parties, and to consider the liability issue with respect to the summary judgment motion.” In order to reduce those hours because of an apparent duplication of effort on separate days, I’m reducing the total number of hours to 20 hours.

13The submissions of counsel for the Zia defendants also fails to provide an hourly rate on an actual or substantial indemnity basis for the hours incurred by Mr. Bily. I am therefore assigning an hourly rate of $250 an hour on a substantial indemnity basis which is commensurate with his call and experience. I note that the time docket does not include a counsel fee for actually arguing the motion in court on September 8, 2014. I therefore award him $750 for a counsel fee.

14Costs are therefore awarded on a substantial indemnity basis to the Zia defendants in the amount of $5750 plus HST of $747.50 for a total of $6497.50. I make no award for the time or cost to obtain transcripts used on the motion as the costs of those examinations for discovery are properly part of the action and third party claim and may be dealt with at trial.

Emery J