CITATION: Bosak, et al v. 3930441 Canada Inc., et al, 2015 ONSC 6138
COURT FILE NO.: 13-1085
DATE: October 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BONNIE LEE BOSAK and JANICE IRENE MAES c.o.b. BOJA ENTERPRISES
Trea B. Tuck, for the Plaintiffs
Plaintiffs
- and -
3930441 CANADA INC. and QUDDUS ASHRAF
Michael Rappaport, for the Defendants
Defendants
The Honourable Mr. J. M. Johnston
RULING ON COSTS
[1] These are Reasons for Ruling on Costs, following my decision dated March 17, 2015.
[2] The Defendants were the moving parties on their Motion seeking to amend the Statement of Defence and Counterclaim, an Order removing Certificate of Pending Litigation from Knight’s Inn, an Order to set off costs previously awarded to the Plaintiffs, by an amount the Plaintiffs allegedly owe to the Defendants, an Order that the Plaintiffs post security for costs and an Order for disclosure of specific items by the Plaintiffs to the Defendants. The Plaintiffs by cross-motion sought to strike out the Statement of Defence and Counterclaim.
[3] In my view the Plaintiffs were largely successful in their opposition to the Motion and, while they were not successful in the Motion to strike out the Defence and Counterclaim, there was a merit to the position. To some degree there was mixed success between the Plaintiffs and the Defendants, however, on balance the Plaintiffs were successful on this Motion. Pursuant to Rule 57.03(1) of the Rules of Civil Procedure, on the hearing of a contested Motion, unless the Court is satisfied that a different Order would be more just, the Court shall
(a) fix the costs of the Motion and order them to be paid within sixty days.
Position of the Parties:
[4] The Plaintiffs argue that they were largely successful and cost should follow the event. Further, the Plaintiffs argue they should be awarded costs on a full indemnity basis as against the Defendants jointly and severally, given the importance of the issue, the complexity involved and argument that the Defendants’ Motions were frivolous and unnecessary. The Plaintiffs argue that costs should be fixed in the full indemnity amount of $11,534.35 inclusive of disbursements and H.S.T. payable forthwith.
[5] The Defendants, in a 10-page written submission on costs, argue that costs of this Motion ought to be deferred to the Judge who hears an alleged impending Motion to set aside an earlier decision of Pedlar, J. The Defendants argue that this Court should not have considered the decision of Justice Pedlar be conceded as correct on behalf of the Defendants. The Defendants re-argue the issue of the Certificate of Impending Litigation in submissions. Further, the Defendants argue that the stay on the counterclaim ought not to have been issued as it was granted in violation of Rule 2(3) of the Rules of Civil Procedure. Further the Defendants argue that the Court ought to draw an adverse inference from the failure of the Plaintiffs to personally appear at the hearing of this Motion February 25, 2015. Counsel for the Defendants further argues that the legal account of Plaintiffs’ counsel is unreasonably high and it is an abuse to permit counsel to file a Bill of Costs without producing supporting invoices and receipts. The Defendants argue these are all strong reasons supporting the result they seek, namely, deferral of the decision on costs to the Motion’s Judge who will hear the Defendants’ Motion to set aside the decision of Pedlar, J.
Analysis:
[6] According to the aforesaid Rule 57.03(1) the Court is directed to assess the issue of costs on a Motion, unless a different Order would be “more just”.
[7] The Defendants argue that the decision of Pedlar, J. was premised on fraudulent information and, as such, they will move to set aside the Order. I am now urged that the proper administration of justice requires that this decision on costs of the motion be deferred until after the hearing of the next Motion the Defendants intend to schedule. I do not agree. The Defendants have had ample opportunity to bring such a Motion that they advise will be commenced to set aside Pedlar J.’s Order. The Defendants may or may not proceed with such a Motion. If the Motion proceeds, it may or may not be successful.
[8] In my view, there is no evidence before me that persuades this Court to exercise discretion and defer the issue of costs. Costs generally can be best assessed by the Judge who actually hears the Motion and renders the decision. In many circumstances, it can be unfair to the litigants and to the Trial Judge to defer the assessment of costs function to that Judicial Officer.
[9] I am persuaded that this is an appropriate case to deal with at this stage. I acknowledge that the Defendants’ position is that they have not paid the Pedlar, J. previous Cost Order because of a cash flow difficulty, namely, the primary asset is the Knights Inn: which is frozen by Certificate of Pending Litigation. I reject the Defendants’ argument. It was the choice of the Defendants to bring the Motion for various relief sought. In my view, the Motion was largely unnecessary and has added to the expense of the case. The parties ought to concentrate on the substantive issues.
[10] In my view, a reasonable cost award on hearing of the Motion and Cross-Motion, which in my view was a relatively brief and relatively straight forward, is in the amount of $3,500.00. In addition, G.S.T/H.S.T. is payable. I reject the Plaintiffs’ argument that costs ought to be incurred on a substantial indemnity basis. Accordingly, Order to go for costs payable to the Plaintiffs in the amount of $3,500.00; plus HST.
[11] In arriving at the costs award, I consider the factors relating to the exercising of discretion as outlined in Rule 57.01(1) including the principle of indemnity, the experience of the lawyer and party entitled to costs, her rate charged and hours spent; costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are fixed, the complexity of the proceeding, the importance of issues, the conduct of each party and whether the Motion was improper. I have reviewed the Bill of Costs filed by counsel for both Defendants and the Plaintiffs. I have considered the complexity of the Motion as aforesaid. The Parities would be better served dealing with the merits of this litigation; rather than expending further time, effort and money on motions.
[12] Having regard to the Defendants’ Claim of cash flow difficulties, I am persuaded to exercise further discretion and extend the time for payment of this costs award from thirty (30) days to ninety (90) days, as of the date of this Ruling.
The Honourable Mr. Justice J. M. Johnston
Released: October 2, 2015
CITATION: Bosak, et al v. 3930441 Canada Inc., et al, 2015 ONSC 6138
COURT FILE NO.: 13-1085
DATE: October 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BONNIE LEE BOSAK and JANICE IRENE MAES c.o.b. BOJA ENTERPRISES
Plaintiffs
- and -
3930441 CANADA INC. and QUDDUS ASHRAF
Defendants
RULING ON COSTS
The Honourable Mr. Justice J. M. Johnston
Released: October 2, 2015