Court File and Parties

COURT FILE NO.: CV-14-502031 DATE: 2016/05/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada v. David Bodanis and Irene Bodanis aka Irenka Bodanis

BEFORE: Master Graham

HEARD: April 22, 2016

COUNSEL:

L. Keown for the plaintiff (moving party) D. Bodanis, defendant in person P. Gakiri, lawyer responding to motion against him personally

REASONS FOR DECISION

(Plaintiff’s motion to strike statement of defence and for costs payable personally by defendant’s lawyer)

[1] On June 24, 1999, the plaintiff Royal Bank obtained a judgment against the defendant David Bodanis in Ontario Superior Court of Justice action no. C20255/99. On April 11, 2014, Royal Bank commenced this action against David Bodanis and his wife Irenka Bodanis alleging a fraudulent conveyance in respect of their residential property at 11 King Georges Drive, Toronto (“the property”) with the intention of thwarting or hindering its ability to recover its 1999 judgment.

[2] The defendants defended the action through counsel by way of a statement of defence delivered on July 3, 2014. Plaintiff’s counsel initiated the discovery process on July 23, 2014 by sending the defendants’ lawyer a draft discovery plan. The defendants’ lawyer responded promptly, suggested some changes to the proposed discovery schedule and stated that he would correspond further with respect to some other changes following his return from vacation at the end of August. No further communication was received from the defendants’ lawyer and plaintiff’s counsel sent further correspondence with respect to the discovery plan on five occasions between September 2, 2014 and October 31, 2014. On November 28, 2014 the defendants’ lawyer obtained and served an order removing himself from the record and the defendants have since been self-represented.

[3] Plaintiff’s counsel then served motion materials for an order striking the statement of defence for the defendants’ failure to deliver notices of appointment of solicitor or notices to act in person. On February 19, 2015 Master Dash adjourned the motion and imposed terms that the defendants deliver one of the required notices by February 27, 2015 and respond to the proposed discovery plan by March 6, 2015. He further ordered that the defendant David Bodanis answer all undertakings from his examination in aid of execution in the 1999 action.

[4] On March 4, 2015, the defendants served notices of intention to act in person. On the same date, they corresponded with plaintiff’s counsel to suggest deadlines for affidavits of documents and examinations for discovery; they also took issue with the proposed scope of documentary discovery in the plaintiff’s proposed discovery plan. On March 10, 2015 Mr. Bodanis sent correspondence with enclosures partly answering the undertakings from his examination in aid of execution. Plaintiff’s counsel corresponded on April 7, 2015 with a modified version of the draft discovery plan and proposing later deadlines.

[5] The plaintiff’s motion again came before Master Dash on May 6, 2015 on the issue of the discovery plan. Master Dash made an order, with Mr. Bodanis present, that the plaintiff’s most recent version of the discovery plan apply to the action and awarded the plaintiff costs of the motion in the amount of $1,800.81 payable within 90 days. The scope of documentary discovery in the discovery plan is relevant to issues on the motion before me and accordingly a copy of Master Dash’s order with the discovery plan is attached as schedule A to these Reasons. This court-ordered discovery plan set deadlines of June 30, 2015 for delivery of affidavits of documents and August 31, 2015 for conducting examinations for discovery.

[6] On May 19, 2015, June 3, 2015, June 15, 2015 and June 30, 2015, plaintiff’s counsel wrote to both defendants requesting their available dates for examinations for discovery. In the letters of June 3, 2015 and June 30, 2015, counsel specifically requested the affidavits of documents required by the discovery plan forming part of Master Dash’s order. The defendants did not respond. With his June 30, 2015 letter, plaintiff’s counsel served an unsworn affidavit of documents and indicated that a sworn copy would be provided at discoveries.

[7] On July 2, 2015, July 13, 2015 and July 22, 2015, plaintiff’s counsel again wrote to the defendants requesting available dates for examinations; on July 22, 2015 he also reiterated his request for an affidavit of documents. On August 18, 2015, plaintiff’s counsel served notices of examination on both defendants returnable August 28, 2015, noted that his letters since May with respect to compliance with Master Dash’s order had been ignored and stated that service of the notice was not a waiver of any rights arising out of the defendants’ failure to comply with the discovery plan.

[8] On August 28, 2015 Mr. Bodanis attended to be examined for discovery but Ms. Bodanis did not. At that time, Mr. Bodanis took the position that Ms. Bodanis had not been served with the notice of examination, notwithstanding the affidavit of personal service in the motion record. Mr. Bodanis agreed to have the examinations proceed on September 8, 2015 at which time he would ensure that Ms. Bodanis was present and that Master Dash’s order would be complied with. Plaintiff’s counsel confirmed this arrangement in writing on September 1, 2015 and stipulated that Ms. Bodanis was to be examined first.

[9] On September 8, 2015, both Mr. Bodanis and Ms. Bodanis attended at the discovery appointment but Ms. Bodanis said that she wanted a lawyer for her examination. The examinations were again postponed.

[10] On September 8, 2015, plaintiff’s counsel wrote to both defendants requesting dates on which they could be examined and reminding them that they were in breach of the order for production of documents, payment of costs and completion of discoveries.

[11] The examinations of the defendants were subsequently scheduled to proceed on September 15, 2015. Ms. Bodanis attended with a lawyer, Mr. Gakiri, who was representing her for the limited purpose of her examination. For reasons set out in detail below, the plaintiff submits that Mr. Gakiri interfered with his examination of Ms. Bodanis to such an extent that it was necessary for plaintiff’s counsel to adjourn the examination to seek directions from the court regarding the conduct of the examinations.

Relief sought on this motion

[12] To date, neither of the defendants has served an affidavit of documents, the costs of $1,800.81 awarded on May 6, 2015 remain unpaid and examinations for discovery have not been completed.

[13] The plaintiff now moves for the following relief:

1. To strike the defendants’ statement of defence for their breach of Master Dash’s order of May 6, 2015, arising both from their failure to comply with the discovery plan and to pay the costs of the motion;
2. For an order that Mr. Gakiri pay personally the costs of the aborted examination for discovery of Ms. Bodanis;
3. In the event that the statement of defence is not struck, for directions with respect to the conduct of the examinations for discovery of the defendants.

[14] The motion first came before the court on November 23, 2015 at which time Master Pope adjourned it because the defendant Mr. Bodanis was provided with insufficient notice of the motion. Although the responding parties’ adjournment request was granted, Master Pope made the new return date peremptory to them owing to the delays in the proceeding including compliance with the discovery plan. The matter came before me on February 17, 2016, by which time the responding parties Mr. Bodanis and Mr. Gakiri filed responding affidavits and the plaintiff and Mr. Gakiri filed factums and books of authorities. On that occasion, it was necessary to adjourn the matter because plaintiff’s counsel confirmed insufficient time for the motion. The motion was argued on April 22, 2016.

Motion to strike the statement of defence

[15] The plaintiff’s motion to strike the defendants’ statement of defence for their breach of Master Dash’s order is under rule 60.12:

60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

[16] With respect to the failure to pay the costs awarded by Master Dash, rule 57.03(2) is also applicable:

57.03(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.

[17] In Schaer v. Barrie Yacht Club, [2003] O. J. No. 4171 (SCJ), Eberhard J. elaborated on the application of this rule (at paragraph 15):

15 Where a party fails to comply with an interlocutory order, the Court may dismiss or stay the party's proceedings or make any other order that is just. 3 The rationale for Rule 60.12 is that there will be situations when "a party's position ought to be determined for procedural reasons arising from the failure of the party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these rules." "If this court's rules are going to be taken seriously by anybody, they must be enforced." 4 "A party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a Plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12." 5 "Because of the importance of avoiding a situation in which litigants without means could ignore the rules of the court, the trial judge acted reasonably in refusing to take into account the impecuniosity of the Plaintiff. [All footnotes cite Baksh v. Sun Media (Toronto) Corp., , [2003] O.J. No. 68 (Ont. Master)]

[18] In the case before me, the defendants are self-represented. The Divisional Court commented on the obligations of self-represented parties in Rock Precast Erectors Ltd. v. Canadian Precast Ltd., 2012 ONSC 5924 (at paragraph 14):

14 Parties who represent themselves are not free to disregard orders of the court and the rules of civil procedure. At times, and when circumstances permit, they will be extended courtesies and provided direction on how to keep their case on track. However, when a litigant's actions are in default of a court order which is clear on its face, it may expect there to be less tolerance and fewer courtesies extended. When a litigant is before a judge and makes material misrepresentations, its position becomes more tenuous. When a matter is on the cusp of trial and a litigant attends pre-trials late and without filing materials, and attends a motion without making any effort to obtain and provide evidence to the court, it may find the court to be less than sympathetic. When a litigant has done all of these things in the face of a looming trial which has been long delayed, it should not be surprised when the court strikes its pleadings. [emphasis added]

[19] Under rules 60.12 and 57.03(2), the court has discretion to strike the statement of defence for the defendants’ failure to deliver an affidavit of documents and for their failure to pay the costs of the motion at which Master Dash ordered that the discovery plan apply to the action. The details of the defendants’ breaches of Master Dash’s order are as follows:

1. Almost a year after Master Dash’s order, they have still failed to deliver affidavits of documents, which were required by June 30, 2015, despite numerous letters to both of them reminding them of this obligation, and despite the fact that the motion to strike their statement of defence for breach of the order was served on November 5, 2015.
2. Ms. Bodanis failed to attend to be examined for discovery by August 31, 2015 despite being served personally with a notice of examination. After attending on September 8, 2015, and stating at that time that she wanted a lawyer for her examination, she attended to be examined with counsel on September 15, 2015 at which time the examination was aborted owing to plaintiff’s counsel wishing to seek directions with respect to the conduct of Mr. Gakiri. It should be noted that although Ms. Bodanis did not comply with the initial deadline in Master Dash’s order, it is Mr. Gakiri’s conduct at examinations that is impugned, and not her own conduct.
3. They have still failed to pay the costs of $1,800.81 awarded by Master Dash on May 6, 2015 despite numerous reminders to comply with the order and despite service of the motion record on November 5, 2015.

[20] There is no explanation in Mr. Bodanis’s responding affidavit for his or Ms. Bodanis’s failure to comply with the discovery plan in Master Dash’s order. He attempts to challenge the merits of the current fraudulent conveyance action and the naming of Ms. Bodanis as a defendant in this action. He acknowledges that there “have been some delays in this case” but states that “delays in civil litigation are not unusual” and that there will be delays arising from the fact that he and Ms. Bodanis are self-represented. He makes a bald statement that he has been unable to pay the money owing under the 1999 judgment but provides no evidence regarding his financial circumstances that would indicate that impecuniosity prevents the defendants from paying the $1,800.81 in costs awarded by Master Dash on May 6, 2015. The balance of his affidavit relates to the motion arising from the September 15, 2015 examination for discovery. There is no evidence on the motion from Ms. Bodanis although Mr. Bodanis deposes that his affidavit is also on his wife’s behalf. Ms. Bodanis did not attend on the motion.

[21] In his submissions on the motion, Mr. Bodanis acknowledged the unpaid judgment from 1999 and states that when he was contacted with respect to payment of the judgment in 2010 he attended and answered questions at his examination in aid of execution. He also provided some answers to undertakings from that examination and suggested that those documents would be included in those required by the discovery plan. He stated that he complied with all of the terms of the adjournment of the plaintiff’s motion to March 11, 2015, none of which are the subject of this motion. He denied any failure to cooperate in the action but then acknowledged that he and Ms. Bodanis never served affidavits of documents in accordance with the court-ordered discovery plan, despite numerous written requests to do so and despite this pending motion. He also acknowledged that they have not paid the outstanding costs of $1,800.81.

[22] Both rules 60.12 and 57.03(2) state that in cases of the breach of an order or a failure to pay costs, the court “may dismiss the party’s proceeding or strike out the party’s defence or make such other order as is just”. In this case, where there is uncontroverted evidence of both the defendants’ breach of an order and their failure to pay the costs award, the court could strike the statement of defence. However, the wording is not mandatory. The word “may” allows for the exercise of discretion and the rules specifically provide for the possibility of “such other order as is just”. The rules therefore contemplate that not every breach of an order or failure to pay costs should result in the dismissal of the action or the striking of the statement of defence.

[23] The court must therefore consider whether striking the statement of defence is the appropriate order in all the circumstances or whether the defendants should be given one last opportunity to remedy their breaches of Master Dash’s order.

[24] The defendants have taken very few steps in this action subsequent to the delivery of their statement of defence on July 3, 2014. I accept that part of the delay in the matter resulted from their lawyer removing himself from the record. However, subsequent to the removal order on November 28, 2014, the defendants have done almost nothing unless forced to attend court by pending motions or compelled to attend at examinations for discovery by notices of examination. The only exception is that in March, 2015 they did respond to the plaintiff’s proposed discovery plan and Mr. Bodanis did partly comply with Master Dash’s order that he answer undertakings from his examination in aid of execution.

[25] The main feature of the case before me that militates against striking the statement of defence is that the defendants are in breach of a single order. There is no question that orders of the court must be respected and enforced, failing which they become meaningless. The issue is whether breach of a single procedural order, for production of affidavits of documents and costs, is sufficient to deprive the defendants of the ability to defend the action on the merits. The fact that the defendants do not have counsel, while not an excuse for breaching an order, would make it more difficult for them to comply with the order to deliver affidavits of documents. In addition, if the plaintiff had provided sufficient notice of the November 23, 2015 return date, the issue would have been resolved less than five months after the breach of Master Dash’s order.

[26] Although the defendants’ conduct in breaching Master Dash’s order of May 6, 2015 is worthy of sanction, the appropriate order in this case is to give the defendants one more opportunity to comply with the order but to require them to pay the costs of the motion arising out of their breach on a full indemnity scale. My decision in this regard is similar to that of Eberhard J. in Schaer, supra, where she held that a plaintiff who had not paid a costs order of $10,000.00 be given a further opportunity “to comply with the cost order in order to continue to adjudication on the merits” (Schaer, paragraph 17).

[27] The other authorities relied on by the plaintiff can all be distinguished. In Baksh, supra, in which the court dismissed an action for the plaintiff’s failure to pay costs, the plaintiff was in default of four costs orders, an order for security for costs, and an order to answer questions refused on discovery, despite a number of indulgences and extensions granted. In Burrell v. Peel, [2008] O.J. No. 5718 (SCJ), in which Kelly J. upheld a decision of Master Dash staying the plaintiff’s action, the plaintiff had failed to pay multiple costs orders. Finally, in Rock Precast Erectors Ltd., supra, although the defence of the corporate defendant was struck for breach of a single order requiring it to appoint counsel or seek leave to be represented other than by a lawyer, the court found that the corporate representative had made material misrepresentations to the court and had failed to file material for a pre-trial “in the face of a looming trial that had long been delayed”. In any event, although the principles applied in these cases are applicable to this motion, the specific decisions do not fetter my discretion on the matter before me.

[28] Based on this ruling, I hereby order as follows:

1. Both defendants shall serve sworn affidavits of documents, along with copies of all schedule A documents as described in the discovery plan forming part of Master Dash’s order of May 6, 2015, upon plaintiff’s counsel within 30 days of this order.
2. The defendants shall pay the costs of $1,800.81 awarded by Master Dash by delivery of a certified cheque, money order or bank draft in that amount to plaintiff’s counsel within 30 days of this order.
3. The costs of the motion to strike the statement of defence will be addressed below in my order with respect to the costs of the entire motion.

[29] I emphasize that my decision on this motion is a “close call” and that this order is intend to give the defendant one final chance to comply with Master Dash’s order, including the costs award.

Motion for Mr. Gakiri to pay costs personally

[30] As stated above, the defendant Ms. Bodanis attended to be examined for discovery on September 15, 2015 with lawyer Peter Gakiri, from whom the plaintiff is seeking costs personally on this motion. The plaintiff submits that Mr. Gakiri interfered with the examination of Ms. Bodanis to such an extent that it was necessary for plaintiff’s counsel to adjourn the examination to seek directions from the court regarding the conduct of examinations for discovery

[31] Applicable to this part of the motion are rules 34.14 and 57.07:

34.14(1) An examination may be adjourned by the person being examined or by a party present or represented at the examination, for the purpose of moving for directions with respect to the continuation of the examination or for an order terminating the examination or limiting its scope, where,

(a) the right to examine is being abused by an excess of improper questions or interfered with by an excess of improper interruptions or objections; . . . .[emphasis added]

(2) Where the court finds that,

(a) a person’s improper conduct necessitated a motion under subrule (1); or

(b) a person improperly adjourned an examination under subrule (1),

the court may order the person to pay personally and forthwith the costs of the motion, any costs thrown away and the costs of any continuation of the examination and the court may fix the costs and make such other order as is just.

57.07(1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,

(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;

(b) directing the lawyer to reimburse the client for any cots that the client has been ordered to pay to any other party; and

(c) requiring the lawyer personally to pay the costs of any party. [emphasis added]

(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the lawyer is given a reasonable opportunity to make representations to the court. [There is no issue of notice to Mr. Gakiri.]

[32] The law in Ontario governing the circumstances in which a lawyer should be ordered to pay costs of a proceeding or a step in a proceeding personally is set out in Galganov v. Russell (Township), 2012 ONCA 410. The applicable principles from that decision are as follows:

1. Rule 57.07(1) is not concerned with the lawyer’s professional conduct generally or the discipline or punishment of a lawyer but only with compensation for conduct which has caused unreasonable costs to be incurred. (see paragraphs 16 and 21)
2. Mere negligence can attract costs consequences as can actions or omissions which fall short of negligence. Bad faith is not a requirement for imposing costs consequences on a lawyer under rule 57.07(1)(c). It is only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court that resort should be had to rule 57.07. (see paragraph 18)
3. The first step in determining whether an order is warranted is to inquire whether the lawyer’s conduct falls within rule 57.07(1) in the sense that it caused costs to be incurred unnecessarily. Rule 57.07(1) refers specifically to conduct that “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”. (see paragraph 18)
4. The second step in the application of the rule is to consider, as a matter of discretion and applying the extreme caution principle enunciated in the Supreme Court of Canada decision in Young v. Young, , [1993] 4 S.C.R. 3, whether in the circumstances, the imposition of costs against the lawyer personally is warranted. The “extreme caution” principle, as stated in Young, means that “these awards must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in rule 57.07(1)”. (see paragraph 22)

[33] With respect to the conduct of examinations for discovery generally, the plaintiff relies on Madonis v. Dezotti, 2010 ONSC 2180, in which Master Dash states as follows (at paragraph 16):

16 A set of principles for the conduct of an examination for discovery has developed in our jurisprudence. As applicable to the matter before me some of the important principles include the following:

1. An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions. The role of the lawyer for the party being examined is to listen to the question asked, decide if the question is improper or incomprehensible and if so to make an objection. They must not interfere in the examination any more than is necessary to perform that function. Otherwise such interjections by counsel may interrupt the proper flow of the examination. 1 Further, such interruptions may affect the quality of the examination record making it difficult or impossible for the examining party to have it read into evidence at trial as part of his or her own case as permitted under rule 31.11(1) or to use the transcript for purposes of impeachment as permitted under rule 31.11(2). 2
2. The lawyer for the party being examined may therefore interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party either to not answer or, as permitted by rule 34.12(2), to answer under objection. 3 Rule 34.12(1) requires that the objecting party "briefly state the reasons for the objection". This does not give licence to the lawyer for the party being examined to engage in an argument with the examining lawyer about the question asked or to provide gratuitous information not requested. The reasons for the objection should be stated on the record briefly and simply - for example that the question is not relevant or that it is protected by a particular privilege or that the question has already been answered.
3. The lawyer for the party being examined may also interrupt the examiner if necessary to ensure that the witness and counsel understand the question. 4 The lawyer should simply advise the examiner that the question is unclear or ambiguous and should not suggest what the question should be or how the question may be rephrased. The lawyer must be scrupulously careful not to engage in a dialogue that would provide a cue to the party being examined on how to answer the question.
4. It is the party who is being examined and not his or her lawyer. The examining party is entitled to the evidence of the witness and not that of counsel. Rule 31.08 requires that questions at an oral examination for discovery "shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer." If questions are put to the witness, it is expected that the witness will personally answer the questions asked. As a practical matter the lawyer may wish to assist by answering a question or correcting an answer, but once the examiner objects then neither of these are permitted 5 even if the answer given by the party is wrong. 6 If the examining party objects to counsel answering, the lawyer must refrain from answering even if counsel may provide a more fulsome answer than his or her client. It would of course be appropriate for the lawyer for the party being examined to answer questions directly put to him or her by the examining party. 7
5. Often there is a spirit of co-operation at an examination for discovery where counsel allow each other some latitude and permit the lawyer for the witness to offer assistance, however if examining counsel wishes to insist on strict compliance with the rules he or she "should be clear about it". A party should not dredge up on a rule 34.14 motion interjections at an examination prior to the time that objection was made. 8
6. It is the duty of the party and not counsel to correct an answer given, even if the answer given by the party is wrong. If the lawyer for the party being examined wishes to correct an answer they have two options - counsel may (a) choose to re-examine their own client under rule 34.11(1) to correct, clarify, explain or complete an answer but only after the completion of the examination by the examining lawyer or (b) provide the clarification, correction or completion of the answer in writing after the conclusion of the examination as permitted by rule 31.09(1)(a). 9 Sometimes it may be more desirable to correct or clarify the answer at the time it is given, but if the examining party objects then the correction must be made in accordance with these rules. 10
7. Counsel must not communicate with his or her client during the examination except on the record, and even then, this communication should be made sparingly so as not to interfere with the flow of the examination. Counsel must not lead his or her own witness after the witness has given a damaging or incorrect answer since this serves to cue the witness to offer an explanation for his damaging answer. 11 Counsel must not suggest directly or indirectly to the client how a question should be answered.

[34] Although Madonis was not a case in which the moving party sought costs against the lawyer whose client was being examined and who was found to have improperly interfered with the examination by an excess of improper interruptions, the guidelines set out in the decision are helpful in determining whether Mr. Gakiri’s conduct at the examination was improper.

[35] The conduct of Mr. Gakiri at the examination must be considered in the context of the scope of documentary discovery in the discovery plan that Master Dash ordered apply to this action. The documentary discovery required from the defendants under this discovery plan includes:

1. Documents relating to the ownership, transfer of ownership, trust arrangements and any other transaction involving the defendants’ residential property from June 24, 1999 [the date of the initial judgment against Mr. Bodanis] to the present;
2. Documents related to any attempted transfer of ownership or transaction involving the property since June 24, 1999;
3. All documents relating to the expenses for the property and their payment since June 24, 1999;
4. All documents relating to the financial status of both Mr. Bodanis and Ms. Bodanis from June 24, 1999 to the present including but not limited to tax returns, business records, bank records, documents setting out their debts and assets, letters or communications from creditors, as well as any pending, threatened, or concluded litigation or insolvency matter related to them. [emphasis added]

[36] The plaintiff has provided the transcript of the examination of Ms. Bodanis held September 15, 2015 at which counsel submits that Mr. Gakiri, who attended with Ms. Bodanis at the examination, made numerous unwarranted interruptions and objections, thus giving rise to this motion. Specifically, plaintiff’s counsel submits that in the 52 questions between Question 8 and Question 59 on this examination, Ms. Bodanis answered only six questions. For the purpose of this motion, it is necessary to review the transcript in detail to determine whether Mr. Gakiri’s conduct falls within rule 57.07(1).

[37] The first seven questions on the examination consist of asking Ms. Bodanis for her name and place of residence. Subsequent questions refused and the basis provided by Mr. Gakiri for the refusals are as follows:

Question 8: And what do you do for a living?

• Refused as irrelevant.

Question 9: What are your sources of income?

• Refused as irrelevant. Examining counsel Mr. Hansen then asked Mr. Gakiri about compliance with Master Dash’s order of May 6, 2015. Mr. Gakiri replied “We are complying with the order” and then gave an undertaking to do so. When Mr. Hansen informed him that the documents included in the discovery plan were to have been produced by “the end of June”, Mr. Gakiri stated that “it’s supposed to be done within 60 days of discovery” but would not explain the basis for his position. Mr. Hansen then asked “Where has there been compliance with all documents relating to the financial status of Ms. Bodanis from June 24, 1999, which makes relevant what her income is now and what she does for a living?”. Mr. Gakiri’s response was again that “it’s not relevant”.

Question 10: Could you indicate to me where there has been compliance with a court order requiring you to produce all documents relating to your financial status since 1999?

• Refused on the basis that the question was “asked and answered”.

Question 11: What is your income Ms. Bodanis?

• Refused on the basis that the question was “asked and answered”.

Questions 12-20: Mr. Hansen asked Ms. Bodanis what her income was in each year from 1999 to 2006.

• Mr. Gakiri initially responded “irrelevant” and then “asked and answered”. When Mr. Hansen stated at question 14 that the question was relevant on the basis of Master Dash’s order, Mr. Gakiri replied that “her income information is not relevant to any of the issues that are anticipated in this case”.

Questions 21 and 22: Please produce your income tax returns from 1999 to the present including Notices of Assessment, in accordance with the court order of Master Dash.

• Mr. Gakiri again responded “Not relevant”. Mr. Hansen pointed out that there is a court order that sets out that those documents are to be produced and Mr. Gakiri told him not to lecture him about court orders.

Questions 23, 24 and 25: Ms. Bodanis, please produce all of your bank records from June 24, 1999 to present in accordance with the order of Master Dash of May 6, 2015.

• Mr. Gakiri responded that Ms. Bodanis did not have bank records from 1999, 2000, 2001 or 2003. He undertook to make enquiries of Ms. Bodanis’s banks.

Question 26: Where do you bank?

• Mr. Gakiri answered “not relevant”. When asked why the question was not relevant he stated that “this is not a debate” and that he had responded to the question on his client’s behalf. When Mr. Hansen again stated that Mr. Gakiri was obligated to explain his objection Mr. Gakiri responded “I’m not obligated to explain anything to you, Mr. Hansen”.

Question 27: Ms. Bodanis, why haven’t you complied with the order of Master Dash?

• Mr. Gakiri replied that she has complied with the order. When Mr. Hansen challenged this statement, Mr. Gakiri told him not to read the order to him. When Mr. Hansen asked him to show him one document that shows compliance with the order, Mr. Gakiri replied that he was not going to show him any documents “besides what we’ve already produced and what we’ve undertaken to produce”.
• Under the same question, Mr. Hansen asked “Please produce all documents relating to the ownership of 11 King Georges Drive from June 24, 1999.” Mr. Gakiri refused to do so on the basis that the documents were publicly available. Mr. Hansen referred to the passage in the discovery plan that required the defendants to produce those documents and Mr. Gakiri replied that “you can get them yourself”. Mr. Hansen then suggested that Mr. Gakiri was saying that Ms. Bodanis did not have to comply with Master Dash’s order. Mr. Gakiri responded that Mr. Hansen was putting words in his mouth and denied that he suggested that anyone refuse to comply with a court order.

Question 28 and 29: Ms. Bodanis show me where the documents are which relate to the ownership of 11 King Georges Drive, please.

• Mr. Gakiri replied that they are available at the Land Titles office and then that the question was asked and answered.

Question 30: I ask you to show me all documents relating to the transfer of ownership of the property known as 11 King Georges Drive from June 24, 1999 to present, please.

• Mr. Gakiri replied that “we have read the court order” and “we have complied with that court order and to the extent that we haven’t, we’ll provide you with the documents that we have undertaken to provide”. Mr. Hansen then requested compliance within 30 days and Mr. Gakiri said that the order allowed 60 days from when discoveries were completed. Mr. Hansen then brought to his attention that documents to be produced under the discovery plan were to have been produced “some time ago”. Mr. Hansen then asked where financing applications from June 24, 1999 had been produced and Mr. Gakiri replied that the question had been asked and answered.

Question 31 and 32: Ms. Bodanis, could you show me what mortgage and financing applications you have from June 24, 1999 to present in respect of 11 King Georges Drive.

• Mr. Gakiri replied that they do not have any mortgage applications for 1999 and that none exist. Mr. Hansen asked Ms. Bodanis whether any such documents exist and Mr. Gakiri replied that he answered the question on his client’s behalf.

Question 33: Now, Ms. Bodanis, I do understand there are mortgage applications. There was one when you purchased the property, correct?

• Mr. Gakiri answered “there probably was” and when Mr. Hansen took exception to him answering instead of Ms. Bodanis, Mr. Gakiri stated “Well, I’m allowed to answer questions on my client’s behalf”.

Question 34: Now there was an application for mortgage financing when the property was transferred to you in 2001, correct, Ms. Bodanis?

• Mr. Gakiri again answered “there probably was”. Mr. Hansen again took exception to him answering and stated that if Mr. Gakiri continued to conduct himself in this way it would be necessary to adjourn the examination.

Question 35: Now, you told me, Ms. Bodanis, you moved into the property 26 years ago. Who lived there when you moved in?

• Mr. Gakiri stated that the question was not relevant and when Mr. Hansen asked why it was not relevant, he simply restated that it was not relevant and did not provide any reason.

Question 36: I understand that Helen Bodanis was once the registered owner of the property?

• Ms. Bodanis answered “Yes”. This is the first question answered by Ms. Bodanis herself in 26 pages of transcript.

Question 37 and 38: When did she cease becoming the registered owner?

• Mr. Gakiri answered “not relevant” and then stated that the information was publicly available. Mr. Gakiri again refused to elaborate on the reason for his contention that the question was not relevant.

Question 39: And you became the owner at some point, or the registered owner I should say?

• Mr. Gakiri answered “Yes” followed by Ms. Bodanis answering “Yeah”. Mr. Hansen took exception to Mr. Gakiri answering questions and Mr. Gakiri stated that he would answer questions if the information was within his knowledge. Specifically, Mr. Gakiri stated that “I will answer questions if I know the answer to the questions”.

Question 40: Now, I understand Helen Bodanis went bankrupt Ms. Bodanis?

• Mr. Gakiri answered “not relevant”.

Question 41: And the property was transferred from the bankrupt estate?

• Mr. Gakiri answered “That’s not information within my client’s knowledge”. Mr. Hansen again objected to Mr. Gakiri answering for his client.

Question 42: So, the property was transferred to you in terms of the registration on the land titles or the land registry from the bankrupt estate of Helen Bodanis, correct, Ms. Bodanis?

• Mr. Gakiri answered “not relevant”.

Question 43: And that was in 2001, Ms. Bodanis? [It should be noted that the discovery plan provided for production of documents with respect to the ownership or transfer of ownership of the defendants’ residential property since Jun 24, 1999.]

• Mr. Gakiri answered “publicly available information”.

Question 44: Was the bankrupt estate paid anything, Ms. Bodanis?

• Mr. Gakiri answered “That’s not information within my client’s knowledge”.

Question 45: Is it within your knowledge, Ms. Bodanis? I’m asking you, Ms. Bodanis.

• Mr. Gakiri answered “It’s not within her knowledge”. Mr. Hansen stated that the question was for the witness to answer and again objected to Mr. Gakiri intervening.

Question 46: Do you concede that the property was transferred so that it was registered in your name in 2001, Ms. Bodanis? Do you agree with that?

• Mr. Gakiri answered “Yeah, it probably was, yeah”. Mr. Hansen objected to Mr. Gakiri coaching the witness and Ms. Bodanis stated that “He’s not coaching me”.

Questions 47-54: These questions relate to the transfer of the property to Ms. Bodanis from Mr. Bodanis’s mother. Ms. Bodanis answered three of the questions and then Mr. Gakiri interjected at question 50 when Mr. Hansen asked when Ms. Bodanis and Mr. Bodanis were married. Ms. Bodanis answered two more questions and then refused on her own initiative to answer whether she paid her mother-in-law for the transfer of the property to her.

Question 55: Was your husband, David Bodanis, also listed as an owner when it was transferred to you?

• Mr. Gakiri refused first on the basis that the information was publicly available and then stated that Ms. Bodanis “isn’t here to answer questions about her husband”.

Questions 56-59: Did you pay Mr. Bodanis [the transcript says Ms. Bodanis but from the context this is clearly an error] for any transfer of an interest in the property to you, Ms. Bodanis?

• Mr. Gakiri answered “probably” and Mr. Hansen again asked him to stop interrupting, stating “one more time and we are going to adjourn and ask for directions and sanctions against your for interference in this examination”. In response to Mr. Hansen’s objection to Mr. Gakiri answering for his client, Mr. Gakiri stated “My client knows she can correct me if the answer is incorrect”.
• When Mr. Hansen tried to ask the question again at question 57, Ms. Bodanis said of her own initiative that “This is not a debtor’s examination. I don’t have to answer that”. Mr. Hansen persisted with the question and Mr. Gakiri again intervened, stating that “we’ve answered the question. She probably did”. Mr. Hansen again questioned Mr. Gakiri’s right to answer questions for his client and Mr. Gakiri insisted that he was entitled to do that.

[38] At this point, Mr. Hansen elected to adjourn the examination to seek directions. He reiterated his objection to Mr. Gakiri’s position that he was entitled to answer questions for his client and Mr. Gakiri informed him that he would take the same position with respect to Mr. Bodanis. Mr. Gakiri stated his view on this issue as follows: “I am allowed to answer questions on my client’s behalf if information being sought is within my knowledge”.

[39] Before addressing the issue of whether Mr. Gakiri’s conduct at the examination of Ms. Bodanis warrants relief under rule 57.07 it is first necessary to consider whether there is any merit to his stated reasons for his interventions during the examination.

[40] I will consider five categories of objections or interventions by Mr. Gakiri:

• Relevance of questions;
• Obligation to comply with Master Dash’s order of May 6, 2015;
• Public availability of documents;
• Counsel answering questions directed to Ms. Bodanis;
• Counsel’s failure to provide a reason for his objection.

[41] Relevance of questions Relevance of documents and questions at examinations for discovery are determined by the issues raised in the pleadings. In this case, the scope of production of documents was already addressed by Master Dash in his order of May 6, 2015 that the attached discovery plan apply to the action. In making this order, Master Dash already ruled on the relevance of the documents included in the discovery plan, including those listed at paragraph 35 above, and by extension, discovery questions relating to those documents would also be relevant.

[42] The refusals at questions 8, 9, 11, 12-20, 21, 22 and 26, all of which related to Ms. Bodanis’s sources of income and bank records, were all on the basis of relevance. Master Dash had already determined that documents relating to Ms. Bodanis’s financial status from June 24, 1999, including tax returns and bank records, were relevant when he ordered production of those records as part of the discovery plan. Mr. Gakiri’s objections to oral discovery on those issues were therefore improper.

[43] The refusals at questions 35-42 were to questions regarding the transfer of the property to Ms. Bodanis from the previous registered owner, Helen Bodanis. Master Dash had already determined that the defendants were required to produce documents relating to the ownership and transfer of ownership of the property from June 24, 1999 to the present. Mr. Gakiri, at question 46, acknowledged that the property was probably registered in Mrs. Bodanis’s name in 2001 so that transfer would fall within the scope of relevance determined by Master Dash. Accordingly, Mr. Gakiri’s objections were again improper.

[44] Obligation to comply with Master Dash’s order of May 6, 2015 This issue arose at question 9 in relation to Ms. Bodanis’s sources of income. Mr. Gakiri took the position that compliance with Master Dash’s discovery plan order was not required until 60 days after examinations for discovery. Master Dash’s order clearly establishes June 30, 2015 as the deadline for documentary discovery so Mr. Gakiri’s statement that production was not required until 60 days following examinations for discovery is inaccurate.

[45] At question 27, counsel asked Ms. Bodanis why she had not complied with the order of Master Dash. Mr. Gakiri answered for her that she had complied with the order. The evidence on the motion is that the defendants have produced none of the documents in the discovery plan ordered by Master Dash, so the statement by Mr. Gakiri that Ms. Bodanis had complied with the order is inaccurate.

[46] Public availability of documents At questions 27, 28 and 29 counsel asked for production of all documents relating to the ownership of 11 King Georges Drive from June 24, 1999 and Mr. Gakiri responded that “you can get them yourself”. The discovery plan ordered by Master Dash specifically requires the defendants to produce these documents so the objection was improper.

[47] At questions 37 and 38, Mr. Gakiri stated that information about when Helen Bodanis ceased being the registered owner of the property was publicly available. At question 55, Mr. Gakiri stated that information about whether David Bodanis was also listed as an owner when it was transferred to Ms. Bodanis was publicly available. Given that the documents with respect to the transfer from Helen Bodanis to Ms. Bodanis were already determined to be relevant and producible by the defendants, questions relating to that transfer would also be relevant. The fact that the information would be publicly available does not relieve Ms. Bodanis from the obligation to answer relevant questions. The objection to these questions was also improper.

[48] Counsel answering questions directed to Ms. Bodanis At questions 31, 32, 33, 34, 39, 41, 45 and 56-59 Mr. Gakiri answered questions directed to Ms. Bodanis and, over Mr. Hansen’s objections, stated several times (questions 33, 39 and 56-59 and at the conclusion of the examination on p. 45 of the transcript) that he was entitled to answer questions on his client’s behalf if the answer was within his knowledge. He also stated (questions 56-59) that his client knew that she could correct him if his answer was incorrect.

[49] Rule 31.08 states:

31.08 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer. [emphasis added]

[50] The presumption under this rule is that the party being examined “shall” answer the discovery questions; the lawyer may answer “where there is no objection”. As stated by Master Dash in Madonis, supra, “The examining party is entitled to the evidence of the witness and not that of counsel. . . . If the examining party objects to counsel answering, the lawyer must refrain from answering even if counsel may provide a more fulsome answer than his or her client”.

[51] In this case, despite Mr. Hansen’s numerous objections, Mr. Gakiri continued to insist that he could answer for his client. Mr. Gakiri’s position on his right to answer questions for his clients is without merit and his frequent interruptions in this regard were improper.

[52] Counsel’s failure to provide a reason for his objection At question 26, Mr. Gakiri objected to a question on the basis of relevance. Mr. Hansen asked him to explain his objection and Mr. Gakiri stated that he was not obligated to do so.

[53] Rule 34.12(1) states:

34.12(1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.

[54] Mr. Gakiri objected to the question with the bald statement “not relevant” and refused to elaborate on this reason. Aside from the fact that Mr. Gakiri was incorrect in stating that where Ms. Bodanis did her banking was not relevant (see paragraph 42 above), his assertion that he was not obligated to provide any further reason for the objection was contrary to the rules and improper.

[55] It is now necessary to apply the law as stated in Galganov, supra to determine whether Mr. Gakiri’s conduct warrants an award of costs against him personally under rule 57.07. In this regard I am mindful both that the purpose of the rule is to provide compensation for the party that has suffered the consequences of the lawyer’s improper conduct and that bad faith on the part of the lawyer is not a prerequisite to an award under the rule.

[56] The first Part of the Galganov test is to determine whether the lawyer’s conduct caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.

[57] It is not disputed that Mr. Gakiri was retained by the defendants on September 10, 2015 (five days before the examinations for discovery) for the limited purpose of assisting them with their examinations for discovery. In his affidavit filed in response to the motion, Mr. Gakiri deposes that at the examination, Mr. Hansen asked questions of a personal nature that had nothing to do with the plaintiff’s action and “was determined to badger her [Ms. Bodanis] with questions about her marriage, her husband and her in-laws, matters that are clearly irrelevant to the plaintiff’s lawsuit against Mr. and Mrs. Bodanis”. As indicated above, Mr. Gakiri’s objections on the basis of relevance were unfounded and ignored the substance of Master Dash’s discovery plan order. Mr. Gakiri also deposes that Mr. Hansen asked questions the answers to which were publicly available. As indicated above, a witness is required to answer relevant questions irrespective of whether the answers might be publicly available.

[58] Mr. Gakiri also deposes that Mr. Hansen became frustrated with his objections and states that Mr. Hansen repeatedly accused him of being uncivil and waving his hand at him, which he denies. Mr. Hansen’s evidence is that Mr. Gakiri raised his voice during the course of the examination and the transcript does indicate that Mr. Hansen took exception to Mr. Gakiri waiving his hand at him. I make no findings with respect to any non-verbal conduct, because the words of counsel on the record are sufficient for me to decide the matter.

[59] Mr. Gakiri further deposes that Ms. Bodanis “had difficulty with the whole process and had difficulty with some of the questions that were being asked”. There is no indication in the transcript that Ms. Bodanis had any difficulty with any of the questions asked. In fact, as indicated above, she hardly spoke during her entire examination.

[60] In support of his position that he should not be required to pay costs personally, Mr. Gakiri relies on Rule 5.1-1 of the Rules of Professional Conduct, along with commentary [1]:

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.

Commentary

[1] Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

[61] Mr. Gakiri submits that a lawyer’s obligation “to raise fearlessly every issue” required him to make good faith objections to questions that he considered improper. He denies that he was being obstructionist and states that he was simply representing his client. He also submits that an error in judgment on the part of counsel with respect to what constitutes a proper question does not expose him or her to paying costs personally.

[62] Mr. Gakiri further submits that the failure to produce relevant documents as ordered by Master Dash should not result in an award of costs against him personally. In this regard, he relies on the words of Master Glustein (as he then was) in Bégin v. Cameron, 2014 ONSC 5864, at paragraph 32:

32 However, it would be a radical change in approach for the court to assume that the failure to produce relevant documents is that of the lawyer, let alone one who is orchestrating a delay campaign. It is the client’s obligation to produce relevant documents and as such the client generally bears the costs order if relevant documents are not produced in an affidavit of documents or refused at examination for discovery, except in rare circumstances if unnecessary costs are incurred and it is a “clear case” that the lawyer is responsible for the conduct.

[63] As indicated above, I have concluded that almost all of Mr. Gakiri’s objections or interjections at Ms. Bodanis’s examination were improper, as follows:

• Most of his assertions that questions were irrelevant were unfounded and contrary to the order of Master Dash.
• He asserted at one point that his clients had complied with Master Dash’s order when they most certainly had not.
• He then stated that the documents ordered produced as part of the discovery plan were not required to be produced until 60 days after the examination when Master Dash’s order clearly required that they be produced by June 30, 2015.
• He objected to questions on the basis that the information was publicly available which is not a valid objection to a relevant question.
• He insisted repeatedly that he was entitled to answer questions for his client regardless of any objection by examining counsel, contrary to rule 31.08.
• He asserted at one point that he was not required to give a reason for his objections, contrary to rule 34.12(1).

[64] Mr. Gakiri’s unwarranted objections significantly contributed to depriving the plaintiff of its right to a meaningful examination for discovery of the plaintiff leaving Mr. Hansen with no choice other than to adjourn the examination to seek direction from the court. The inevitable consequence of Mr. Gakiri’s conduct is that plaintiff’s counsel wasted his time preparing for and attempting to conduct the examination of Ms. Bodanis on September 15, 2015. I accept that Mr. Gakiri’s conduct has caused the plaintiff to incur costs thrown away in relation to that examination without reasonable cause. The plaintiff has therefore satisfied the first part of the Galganov test.

[65] The second step of the Galganov test is to consider whether, exercising the “extreme caution” required by the Supreme Court of Canada in Young, supra, an award against Mr. Gakiri personally is warranted. Mr. Gakiri’s submission is that the court should not “second guess” the conduct of counsel and that any errors in judgment on his part do not constitute grounds for an award of costs against him.

[66] The court’s consideration of the consequences of Mr. Gakiri’s conduct must also take into account the defendants’ failure to comply with the discovery plan ordered by Master Dash prior to the examinations for discovery. Although Mr. Gakiri’s conduct at the examination of Ms. Bodanis was improper, the value of that examination was also compromised by the defendants’ own failure to produce the documents contained in the court-ordered discovery plan. I accept that a lawyer should not generally be responsible for a client’s duty to produce relevant documents (see Bégin, supra). This is particularly true in the case before me, where Mr. Gakiri was not retained until more than two months after the discovery plan deadline of June 30, 2015 for the production of documents and only five days before the September 15, 2015 examination for discovery.

[67] The plaintiff was justified in arranging and attempting to proceed with the examinations that, under the court-ordered discovery plan, were to have been held by August 31, 2015. Although the defendants’ failure to produce the required documents would have impeded the effectiveness of the examination, Mr. Gakiri’s unwarranted and improper interruptions further contributed to the plaintiff’s costs thrown away. In applying the “extreme caution” principle from Young, supra and Galganov, supra, it is significant that on various occasions during the examination, Mr. Gakiri both disregarded the substance of Master Dash’s order and either displayed a lack of knowledge of or wilfully ignored rules of civil procedure relating to the conduct of examinations for discovery. His conduct went far beyond the reasonable bounds of zealous advocacy for his client and amounted to sabotaging the plaintiff’s examination of Ms. Bodanis. Even approaching the issue with extreme caution, I am satisfied that Mr. Gakiri should be required to contribute personally to the plaintiff’s costs thrown away.

[68] In summary, the wasted costs for which the plaintiff seeks compensation as a result of the aborted examination of September 15, 2015 were the fault both of the defendants, for failing to comply with Master Dash’s order to produce the documents set out in the discovery plan by June 30, 2015 and of Mr. Gakiri, for his unwarranted and unjustifiable objections to almost all of the questions asked at the examination attempted by plaintiff’s counsel. I conclude that the costs thrown away of the September 15, 2015 examination should be paid 50% by the defendants for their failure to provide the required documents in advance of the examination and 50% by Mr. Gakiri for his improper conduct. I will quantify these costs when addressing the issue of costs generally.

Directions with respect to the conduct of the defendants’ examinations

[69] The defendants shall re-attend to be examined for discovery within 60 days of the service of their affidavits of documents on a date and at a location to be set by the plaintiff in a notice of examination. As the examination of Ms. Bodanis was rendered completely ineffective by her failure to produce any of the documents in the discovery plan and by Mr. Gakiri’s improper interruptions, her examination shall proceed as though a first examination and not as a continued examination.

[70] The following directions are given with respect to both defendants’ examinations:

1. The lawyer for the defendants, if he attends with them at their examinations, may not interrupt the examinations except to state that he objects to a question, briefly stating the basis for the objection and directing the plaintiff not to answer or to answer under objection.
2. The lawyer for the defendants shall only seek clarification of a question in the event that the party being examined first states that she or he does not understand it.
3. The lawyer for the defendants shall not answer or offer to answer any question on behalf of the party being examined or refer to any document to assist either that party or the examining lawyer or place any document before the party being examined unless invited to do so by the examining lawyer.
4. Once the examination begins, the lawyer for the defendants shall not give instructions to the party being examined about how to answer a specific question or questions generally.
5. The lawyer for the defendants shall not correct any answer given by the party being examined except by way of re-examination under rule 34.11(1) following completion of the examination by the plaintiff’s lawyer or by written corrections under rule 31.09(1)(a).
6. The defendants and their lawyer shall be guided with respect to the relevance of discovery questions by the documents contained in the discovery plan ordered by Master Dash on May 6, 2015.
7. No objection shall be made to any question on the basis that the information is also publicly available.

Costs

[71] Following the hearing of the motion, I invited submissions on costs. The plaintiff provided two costs outlines, one for the entire action in the event that the action was dismissed and one limited to the motion and the aborted examinations for discovery. As the action was not dismissed, I will consider the second of these costs outlines.

[72] Mr. Bodanis did not bring a costs outline to the hearing and made no submissions on costs despite being invited to do so. Mr. Gakiri did not bring a costs outline to the hearing but indicated that he wished to file one. As directed by the court, he provided a costs outline the next business day following the motion and well in advance of the release of these reasons.

[73] The plaintiff seeks full indemnity costs of the motion and of the aborted examinations for discovery. As the motion was necessary owing to the defendants’ breaches of a previous court order and Mr. Gakiri’s improper conduct at the examination of Ms. Bodanis, this is an appropriate case for full indemnity costs. The time required for preparation of materials and argument on the issues of the defendants’ breach of Master Dash’s order and of Mr. Gakiri’s conduct at Ms. Bodanis’s examination was sufficiently similar that the costs of the motion should be apportioned equally between the defendants and Mr. Gakiri. Because Mr. Gakiri’s first involvement in the matter was after the second attendance by plaintiff’s counsel to conduct examinations for discovery, the costs of the first two aborted examinations for discovery should be borne completely by the defendants.

[74] In his submissions, Mr. Gakiri argued that, regardless of the outcome of the motion, he and the defendants should be compensated for their attendances on November 23, 2015, when the motion was adjourned because of insufficient notice to the defendants, and on February 17, 2016, when the motion could not proceed because plaintiff’s counsel confirmed insufficient time for the motion.

[75] The plaintiff should not be awarded costs for the first two attendances on this motion which were wasted owing to errors by plaintiff’s counsel. However, as the defendants and Mr. Gakiri were responsible for the circumstances giving rise to the motion and were ultimately unsuccessful in opposing it, they should not be awarded costs of these attendances either. There shall be no costs awarded to any party for preparing for and attending at the November 23, 2015 and February 17, 2016 appearances.

[76] The plaintiff’s costs outline sets out total full indemnity costs of $26,254.28 consisting of $23,279.13 in fees and $2,975.15 in disbursements.

[77] The amount for fees should be reduced by $5,208.00 being the total amounts for preparation for and attendance at the November 23, 2015 and February 17, 2016 hearings. Although Mr. Keown, who argued the motion, was not the lawyer who prepared the material, his preparation time was 2.5 hours which would have been reasonable for a lawyer involved in the matter from the outset. Accordingly, there is no basis on which to reduce the costs for duplication of effort.

[78] The list of disbursements provided includes disbursements for the action such as issuing and serving the statement of claim and obtaining a certificate of pending litigation. These disbursements are not recoverable on this motion. The disbursements with respect to the aborted examinations for discovery and the motion total $2,226.03 exclusive of HST. It will be necessary to apportion these disbursements between the defendants and Mr. Gakiri.

[79] Based on the plaintiff’s costs outline, the costs not including disbursements, payable by the defendants are as follows:

Examination for discovery of August 28, 2015: $ 1,887.00 Examination for discovery of September 8, 2015: 1,073.00 50% of examination of September 15, 2015: 518.00 50% of preparing initial motion materials: 906.50 50% of preparing supplementary motion materials 3,145.50 50% of preparing order and costs outlines 536.50 50% of preparing for April 22, 2016 hearing 462.50 50% of counsel fee for attendance on motion 647.50 TOTAL $9,176.50

[80] The costs, not including disbursements, payable by Mr. Gakiri are the total of these same figures except those for the examinations for discovery of August 28 and September 8, 2015, in which he was not involved. Mr. Gakiri’s share of the costs not including disbursements is $6,216.50. Mr. Gakiri’s own costs outline includes fees of $9,280.13 inclusive of HST so the fees portion of the costs for which he is responsible, which is considerably less than his own figure, must have been within his reasonable contemplation.

[81] The disbursements for the motion, for which both the defendants and Mr. Gakiri are responsible, total $1,289.91 inclusive of HST. The defendants collectively and Mr. Gakiri are each responsible for 50% of this amount, or $644.95. The defendants are also responsible for the disbursements for the first two aborted examinations for discovery, which total $481.38 including HST. The disbursements payable by the defendants total $1,126.33. The total costs payable by the defendants with respect to the motion, including the costs of the aborted examinations, are as follows:

Fees: $9,176.50 HST on fees: 1,192.94 Disbursements, including HST 1,126.33 TOTAL $11,495.77

[82] The only disbursement payable solely by Mr. Gakiri is for the cost of the transcript of the September 15, 2015 examination, which was obtained solely as evidence of his conduct at the examination. This disbursement is $454.75 ($402.50 + $52.25 HST). The disbursements for which Mr. Gakiri is responsible total $1,099.70 ($644.95 + $454.75). The total costs payable by Mr. Gakiri are as follows:

Fees: $6,216.50 HST on fees: 808.14 Disbursements, including HST 1,099.70 TOTAL $8,124.34

[83] The defendants shall pay their share of the costs of the motion including the aborted examinations for discovery fixed at $11,495.77 within 60 days and in any event before their examinations for discovery. These costs are in addition to the costs of $1,800.81 awarded by Master Dash on May 6, 2015 and ordered payable within 30 days of this order in paragraph 28 above.

[84] Mr. Gakiri shall pay his share of the costs of the motion including the aborted examination for discovery of September 15, 2015 fixed at $8,124.34 payable within 60 days.

MASTER GRAHAM DATE: May 2, 2016