ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-490626
DATE: 20151203
BETWEEN:
DANIELS MIDTOWN CORPORATION and DANIELS CORPORATION
Plaintiffs
– and –
PAUL MARIAI
Defendant
Jeremy Devereux for the Plaintiffs
Michael S. Teitelbaum and Yulia Pesin for the Defendant
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Mr. Mariai brought a motion pursuant to Rule 21 of the Rules of Civil Procedure to have the Daniels Corporations’ defamation action dismissed. I dismissed the motion. See Daniels Midtown Corporation v. Mariai, 2015 ONSC 6568. This is my costs decision.
[2] I dismissed Mr. Mariai’s motion without addressing the substantive legal merits of it. I dismissed the motion on the procedural grounds that his use of Rule 21 was improper. In my reasons, I recognized that there are defamation cases where a defendant has used Rule 21 to show that it is plain and obvious that the plaintiff’s claim is bound to fail because the defamatory words were spoken on an occasion of absolute or qualified privilege, but I held that that this is not the same thing as a defendant using Rule 21 as a means of showing that it is plain and obvious that his or her defence of absolute or qualified privilege is bound to succeed, which is what Mr. Mariai tried to do. I suggested that if Mr. Mariai wished a summary determination of the merits of his defences, then he should have brought a summary judgment motion.
[3] In my reasons, I was circumspect in detailing the background facts because I did not wish to be taken to making any findings of fact about the claim or the defences, which remain to be determined on the merits.
[4] I invited costs submissions if the parties could not agree about the matter of costs, and I indicated that my inclination was to order costs in the cause.
[5] The parties were able to agree about the quantum of costs; i.e., $24,187.37, but they were unable to agree about what type of costs order should be made.
[6] The Daniels Corporations, the plaintiff and the successful party on the motion, submits that costs should be ordered in accordance with rule 57.03(1) which provides that, on the hearing of a contested motion, the court shall order costs to be paid within 30 days unless the court is satisfied that a different order would be “more just.”
[7] The Daniels Corporations submit that it would be “less just” not more just to make costs in the cause in the immediate case because of Mr. Mariai’s misuse of Rule 21 and because of the policy behind rule 57.03(1), which is to force a party to think long and hard about bringing a motion and only to initiate motions that have some merit. See Re Assaf Estate, [2007] O.J. No. 3193 at para. 68. The Daniels Corporations submit that the immediate case is unlike the cases where courts have departed from rule 57.03(1); for example: summary judgment motions that were reasonable and “too close to call;” motions for leave to appeal; motions involving an interlocutory injunction where the losing party may ultimately succeed at trial; and some interlocutory motions in a class proceeding. See Brown v. Hudson’s Bay Co., 2014 ONSC 4059.
[8] In the alternative, the Daniels Corporations submit that the costs order should be to the plaintiff in any event of the cause.
[9] Relying on St. Louis v. Capreit, 2015 ONSC 5538; Davies v. McCain Foods Ltd., 2001 CarswellOnt 4312 (S.C.J.); Posluns (Litigation Guardian of), 2002 CarswellOnt 601 (C.A.); Delco Equipment & Services Ltd. v. Hatch Industries Ltd., 2010 ONSC 6691; and Parker v. Dirar, 2015 ONSC 4723, Mr. Mariai submits that costs should be in the cause because the ultimate disposition of the action may be that his defences based on privilege may succeed and it would be unjust that he pay costs for a motion that was an attempt to spare all the parties the expense of what will be long, complex and costly proceedings.
[10] In my opinion, the appropriate award is to award costs of $24,187.37 to the Daniels Corporations in any event of the cause. In the event that the Daniels Corporations are ultimately successful, it would be entitled to these costs. In the event that the Daniels Corporations are unsuccessful, then it would be fair that it should have a setoff which would take into account that it was a misstep for Mr. Mariai to resort to Rule 21, even if he is ultimately successful.
[11] Order accordingly.
Perell, J.
Released: December 3, 2015
COURT FILE NO.: CV-13-490626
DATE: 20151203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELS MIDTOWN CORPORATION and DANIELS CORPORATION
Plaintiffs
– and –
PAUL MARIAI
Defendant
REASONS FOR DECISION – COSTS
PERELL J.
Released: December 3, 2015