ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4306/08
DATE: 20151116
BETWEEN:
Jocelyn Hebditch
Plaintiff
– and –
Jeanne Birnie, Michael Birnie and Ted Seddon (not a party to this motion)
Defendants
J. Malette, for the Plaintiff
A. Steinman, for the Defendant Jeanne Birnie/Estate of Jeanne Birnie
HEARD: On written submissions
A. D. Kurke J.
RULING ON COSTS
[1] The Plaintiff brought a Motion for Orders:
To set aside the Consent Order of September 26, 2008 dismissing the action as against former Defendant Michael Birnie;
In the alternative, that the Defendant Jeanne Birnie, now deceased, be estopped from taking the position in the action that Jeanne Birnie was incompetent at the time of the incident;
To strike the Defendant Jeanne Birnie’s Response to the Plaintiff’s Request to Admit certain facts.
[2] In my Ruling on the Motion on September 11, 2015 (2015 ONSC 5839), the Plaintiff succeeded on the third Order, but not on the first two.
[3] In concluding my Ruling on the Motion, I added “If the parties are unable to agree on Costs, they may provide written submissions of no more than two written pages within 30 days of this Ruling.”
[4] Only the Plaintiff and the Defendant Jeanne Birney, (“the Defendant”), have provided written submissions.
[5] Of the first two Orders sought, the first affected only Michael Birnie, and not the Defendant. That Order was successfully opposed at the hearing of the Motion by counsel for Michael Birnie, who has made no submission to me concerning Costs.
[6] The Plaintiff and the Defendant had divided success on the remaining two Orders sought by the Plaintiff.
[7] The Defendant seeks costs of $7,335.59 for a Motion that took two hours to argue, and on which the Defendant filed no materials except an Affidavit, where the other participant parties prepared factums and books of authorities.
[8] While I consider the Plaintiff’s second requested item of relief to have been arguable, I found in my Ruling on the Motion that the Defendant’s improper response to the Plaintiff’s request to admit was a pro forma blanket refusal that served only to frustrate the proper exercise and purpose of the rule concerning Requests to Admit.
[9] In those circumstances, there will be no Order as to Costs.
Justice
Released: 20151116
COURT FILE NO.: 4306/08
DATE: 20151116
BETWEEN:
Jocelyn Hebditch
Plaintiff
– and –
Jeanne Birnie, Michael Birnie and Ted Seddon
Defendants
J. Malette, for the Plaintiff
A. Steinman, for the Defendant - Jeanne Birnie
G. Marcuccio, for the Defendant - Michael Birnie
T. Seddon, a party, but not a party to this motion
Released: 20151116