Court File and Parties

COURT FILE NO.: CV-11-00437115-0000 DATE: 20160718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSE ELIZABETH GRAY Plaintiff

– and –

DAVID BRATHWAITE and 1492569 ONTARIO INC. and DAAB VENTURES INC. c.o.b. as CHESSWOOD TRANSMISSION DRIVELINE SPECIALISTS Defendants

COUNSEL: Jennifer Klotz for the Plaintiff Blair Bowen for the Defendants

HEARD: Written Submissions

COSTS ENDORSEMENT

DIAMOND J.:

[1] At the conclusion of my Reasons for Decision released on June 24 2016, I asked the parties to exchange and file written costs submissions pursuant to a fixed schedule. I have now received and reviewed those costs submissions.

[2] As set out in my Reasons, the lack of a cogent and coherent theory of the plaintiff’s case necessitated the plaintiff to bring a motion to amend her Statement of Claim. That motion was effectively argued at the outset of trial.

[3] I granted the plaintiff’s motion in part, allowing some of the draft amendments to be issued. As a result of that motion, the trial was unfortunately adjourned to be heard by me during the week of November 28, 2016.

[4] Not surprisingly, the defendants now seek an order requiring the plaintiff to pay them the following amounts:

(a) The defendants’ costs thrown away (ie. those costs incurred in preparing for trial) on a substantial indemnity basis in the amount of $36,060.50,

(b) The defendants’ costs for preparing and arguing the plaintiff’s motion to amend on a substantial indemnity basis in the amount of $3,068.00, and

(c) The defendants’ costs to be incurred in preparing additional pleadings and productions, and participating in further examinations for discovery, all on a partial indemnity basis “as soon as those costs can be ascertained”.

[5] As held by Justice Broad in Yeoman et al v. Meyer et al, 2015 ONSC 716, on a motion to amend a compensatory cost award to the responding party will frequently be appropriate even if the responding party was not fully or partially successful in opposing the motion.

[6] The defendants rely upon the decision of King’s Gate Developments Inc. v. Drake (1994), 416 (ON CA). In King’s Gate, the defendants brought a motion on the eve of trial seeking leave to make extensive amendments to their Statement of Defence. Relying upon the provision “on such terms as are just” in Rule 26.01 of the Rules of Civil Procedure, the Court of Appeal for Ontario allowed the amendments but ordered the defendants to pay the plaintiff’s substantial indemnity costs occasioned by the motion, including those costs associated with the necessity of preparing fresh pleadings, delivering productions and conducting examinations for discovery.

[7] In response, the plaintiff submits that she should not be ordered to pay any of the defendants’ costs, or in the alternative that she be responsible for paying the defendants’ costs in the all-inclusive amount of $2,500.00 plus HST. In support of her position, the plaintiff advances three main arguments.

[8] First, the plaintiff submits that the costs occasioned by her motion should be dealt with “at the end of trial after all the facts have been fully examined”. She claims that a costs order at this time would be “unjust and premature”. I see no authority cited in support of her position, and in my view such an argument seems to fly in the face of the rationale implemented by the Court of Appeal in the King’s Gate decision.

[9] Second, the plaintiff submits that the prohibitive nature of the costs award sought by the defendants could “end her possibly meritorious case” due to her inability to pay. The plaintiff submits that since May 2016, she has been “fixing her life and financial woes due to the Fort Murray wild fires”, and that any substantial costs order could derail her continued access to justice. Unfortunately, I have no sworn evidence before me to access the merits of such an argument. If the plaintiff is claiming impecuniosity, the Court will require sworn evidence to that effect, which evidence could be challenged under the crucible of cross-examination by the defendants.

[10] Third, the plaintiff submits that the defendants have acted “spitefully” by allegedly breaching undertakings (previously given during the life of this proceeding) not to encumber a property municipally known as 1882 Wilson Avenue, Toronto, Ontario. While the issue of whether the defendants did breach such an undertaking will likely be canvassed during the trial of this proceeding, I note that the plaintiff had never brought any interlocutory motion nor sought any prior relief arising out of the alleged breach of that undertaking. I cannot in any event find a causal connection between the defendants’ alleged breach of the undertaking and the defendants’ costs thrown away occasioned by the plaintiff’s motion to amend during trial. While I understand that the plaintiff is relying upon the general principle that the Court ought not to award a party who has acted inequitably, the issue of whether the defendants breached any alleged undertaking is still live and will form part of the pending trial of this proceeding.

[11] Accordingly, in my view there are no substantive grounds to deny the defendants their costs occasioned by the plaintiff’s motion. That said, I am always mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the successful party with the overall goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[12] I have reviewed the Costs Outlines provided by the defendants. I agree that their costs thrown away ought to be awarded on a substantial indemnity basis. In reviewing those Costs Outlines, I find the presence of some duplication of efforts on the part of the various lawyers acting for the defendants. In addition, some of the docketed time does not appear to be costs truly “thrown away” in that the specific time both had value and may not need to be duplicated when the trial resumes before me.

[13] In the circumstances of this case, and having regard to the results achieved on the motion, the reasonable expectations of the parties and the hours claimed, I make the following order:

(a) The plaintiff shall pay the defendants their costs thrown away on a substantial indemnity basis in the all-inclusive amount of $22,500.00 and payable forthwith, and

(b) The plaintiff shall pay the defendants their costs of the plaintiff’s motion to amend on a partial indemnity basis fixed in the all-inclusive amount of $1,500.00 and payable forthwith.

Diamond J. Released: July 18, 2016