CITATION: Masales v. Cole, 2016 ONSC 1814
COURT FILE NO.: CV-11-434673
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RANDALL MASALES, PAMELA MASALES and DOROTHY BLONG
Plaintiffs
– and –
HENRY COLE, MACQUARIE PRIVATE WEALTH INC. and RBC DOMINION SECURITIES
Defendants
Edward Babin and Julia Z. Webster for the Plaintiffs
Alistair Crawley and Clarke Tedesco for the Defendant Macquarie Private Wealth Inc.
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Defendant, Macquarie Private Wealth Inc., brought an unsuccessful summary judgment motion. See Masales v. Cole, 2016 ONSC 763. This is my costs decision.
[2] The Plaintiffs, Randall Masales and Pamela Masales, request costs on a partial indemnity basis of $37,610.84, all inclusive.
[3] In my Reasons for Decision, I invited the parties to make costs submissions if they could not agree about the matter of costs, but I indicated that I was inclined to order costs in the cause. Having now considered the parties’ written costs submissions, I reject the Plaintiffs’ request for costs, and I order costs in the cause.
[4] Two years ago, when Macquarie launched its summary judgment motion, the motion had two branches of argument. One branch advanced the argument that the Masales’ action should be dismissed because they had suffered no damages. The second branch advanced the argument that the Masales’ action against Macquarie was statute-barred under the former Limitations Act, R.S.O. 1990, c. L.15 or the current Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
[5] Two years later, shortly before the argument of the summary judgment motion, Macquarie abandoned the first branch of its summary judgment motion. The Masales seek their costs related to the abandonment of the damages argument branch of the summary judgment motion. They attribute $26,646 of their $37,610.84 request for costs to the abandoned damages argument.
[6] In my opinion, this portion of the claim for costs should be in the cause. While Macquarie abandoned the damages argument for the purposes of the summary judgment motion, Macquarie has not abandoned this argument for the purposes of the trial. The costs incurred by both parties with respect to this aspect of the action have not been wasted, and it is appropriate that these costs be in the cause and abide the result of the trial, which will determine the merits of the Masales’ case against Macquarie.
[7] Although the second branch of Macquarie’s summary judgment motion was argued and although Macquarie lost the summary judgment motion, the situation with respect to the balance of the Masales’ request for costs, which requests costs for Macquarie’s failed technical defence that the action was statute-barred, is similar.
[8] My decision on the summary judgment motion did not resolve the limitations period defence, and like the matter of the merits of the Masales’ claim, the merits of this technical defence will have to be determined at trial.
[9] The summary judgment motion based on the limitation period defence was reasonably brought, and it was understandable why Macquarie would bring the motion. The Masales commenced their action in 2011, and their claim against Macquarie concerns events that occurred between 2001 and 2005, when the Masales’ investment accounts were managed by Macquarie’s predecessors.
[10] Metaphorically, I described the summary judgment motion as a horse race, and I decided that the finish line should be a trial and not a summary judgment motion. It remains to be determined whether Macquarie will succeed with its damages argument or with its limitation period defence at trial.
[11] Where a motion for a summary judgment is reasonably brought and the decision to dismiss the motion and send the matter to trial is a close call, it may be appropriate to order costs in the cause: Marini v. Muller, [2001] O.J. No. 259 (S.C.J.); Smith v. Barna Estate, 2012 ONSC 1543; Mahmood v. Royal Bank of Canada, [2002] O.J. No. 1502 (S.C.J.); Greer v. Homer, [2008] O.J. No. 3093 (S.C.J.); Falco v. P.V. & V. Insurance Centre, [2007] O.J. No. 4893 (S.C.J.).
[12] One value of an order for costs in the cause is that the order sustains the value of a party’s investment in his or her litigation until the outcome. Further, costs in the cause has the virtue that sometimes it is fair that a party should recover costs for an interlocutory motion – win or lose – if that party ultimately succeeds in the action: Smith Estate v. National Money Mart Co. (2008), 2008 CanLII 45406 (ON SC), 92 O.R. (3d) 224 (S.C.J.).
[13] Accordingly, I order costs in the cause.
Perell, J.
Released: March 15, 2016
CITATION: Masales v. Cole, 2016 ONSC 1814
COURT FILE NO.: CV-11-434673
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RANDALL MASALES, PAMELA MASALES and DOROTHY BLONG
Plaintiffs
– and –
HENRY COLE, MACQUARIE PRIVATE WEALTH INC. and RBC DOMINION SECURITIES
Defendants
REASONS FOR DECISION – COSTS
PERELL J.
Released: March 15, 2016