SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14-61172
DATE: September 17, 2015

RE: DARREN SPROULE, Plaintiff

AND:
TONY GRAHAM LEXUS TOYOTA, et. al. , Defendants

BEFORE: MASTER MACLEOD

COUNSEL:
Andrew Lister, for the Plaintiff, moving party
Jim Anstey, for the Defendants, responding parties

HEARD: In writing

COSTS ENDORSEMENT

[1] I have received written submissions on a motion heard on May 19th, 2015. That was a motion by the plaintiff for an order that the defendants make additional production and answer questions refused on cross examination.

[2] In reasons released on June 19th, 2015 the court declined to grant the requested relief. (2015 ONSC 3976) I concluded that the plaintiff’s requests were disproportionate and unnecessary for the summary judgment motion.

[3] The defendants seek significant costs. It must however be borne in mind that the admissions and concessions which led to this conclusion were in part at least made only after the cross examination in question. Those concessions were wise as my ruling otherwise might well have been different. On the face of the pleadings, had the defendants denied that the corporations were under common control and were interrelated then on a relevance test it would have been necessary to order further disclosure.

[4] Nevertheless in the face of those concessions, it should not have been necessary to argue the motion. The factual issues to which the questions and the demands for disclosure were directed were ultimately admitted and so were no longer in dispute. There remains of course a significant issue about whether or not the cause of action against those holding companies is viable and that will be the subject of the summary judgment motion.

[5] The defendants are entitled to costs of the motion because they were successful but in my view those costs should be on a modest party and party scale. The actual costs incurred by the defendants were $17,514.55 and the defendants propose partial indemnity costs of $11,702.46. I fully understand why it was important to the defendants to resist production of financial information in relation to privately held companies which they assert could have no employment relationship with the plaintiff so it was not unreasonable for them to incur these costs.

[6] The question I have to decide is what it is reasonable to award against the party that was unsuccessful on the motion. In that regard, indemnity is an important consideration but it does not stand alone. On the facts of this motion I am not prepared to award 66% of the actual costs incurred. I consider that $4500.00 is a reasonable partial indemnity award.

[7] As the summary judgment motion is pending, I will defer the payment of these costs for a reasonable period to allow that motion to be concluded. The motions judge may take this award into account when awarding costs of the main motion but unless otherwise ordered the costs will be payable 30 days after the decision is released. In case the motion is not scheduled or is scheduled and then adjourned these costs will be payable by April 1st, 2016.

[8] In conclusion, the plaintiff is to pay the defendants $4,500.00 for the costs of the motion on a partial indemnity scale. Unless otherwise ordered by the motions judge, the costs are to be paid by April 1st, 2016 or within 30 days of the release of the decision on the summary judgment motion, whichever is sooner.

Master MacLeod