2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2016 ONSC 1714

CITATION: 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2016 ONSC 1714

COURT FILE NO.: CV-11-437362

DATE: 20160309

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2287913 Ontario Inc. et al., Plaintiffs

and

Blue Falls Manufacturing Ltd. et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: H. Richard Bennett and J. Figliomeni, for the plaintiffs

A. Fischer and C. O’Connor, for the defendants

READ: March 9, 2016

COSTS ENDORSEMENT

[1] The defendants seek costs of over $20,000 for having successfully obtained directions to defer the plaintiffs’ proposed summary judgment motion after an attendance at Civil Practice Court, two Case Conferences, and a telephone Case Conference. The bulk of the costs claimed relate to the motion itself rather than to the time spent in informal appearances.

[2] In my view, costs consequences at Case Conferences should be rare. The informality is designed at least in part to keep costs down. The important goal of enhancing access to civil justice is best facilitated by encouraging parties to make use of Case Conferences, Civil Practice Court, Chambers Appointments, and the other light touch case management processes that are being implemented to enhance efficiency and affordability of civil litigation. Removing the costs risk from informal appearances in the ordinary case encourages parties to bring matters before the court earlier and less formally. This will help move cases forward more efficiently and affordably and thereby save more than the limited costs incurred by the informal attendances.

[3] The defendants succeeded in obtaining directions under para. 72 of Hryniak v. Mauldin, 2014 SCC 7, deferring the plaintiffs’ motion for judgment. The plaintiffs obtained a schedule to move the case forward which was in their interests. Moreover, if the plaintiffs ultimately succeed on the grounds asserted in the deferred motion it may be that they will be able to establish to the judge that the motion for summary judgment ought to have proceeded. I have held that the motion was presented in a manner that was too complex to conveniently proceed by way of motion at this time. The judge who ultimately digs into the merits will be in a position to decide if the discoveries or any revamping of the merits that occur hereafter ultimately mattered to the outcome. On the other hand, if the defendants succeed at a later date, the judge may be in a position to determine that this aborted detour toward summary judgment was doomed to failure and was an expensive waste of time.

[4] It seems to me therefore that I should deny costs for the three Case Conferences. The Civil Practice Court scheduling attendance is a mandatory part of bringing a motion for summary judgment now in Toronto. Therefore, the costs of that attendance should be subsumed in the costs of the motion. I reserve the costs of the motion to the judge who finally disposes of this action.

F.L. Myers J.

Date: March 9, 2016