Court File and Parties
COURT FILE NO.: 13-58025 DATE: July 25th, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marina Parris, Gregg Goss, Rebekah Foote, Krystian Foote, a minor, and Aldwyn Parris, by their litigation guardian Marina Parris Plaintiffs
And:
Robert Wylie, Colette Robitaille, 1543197 Ontario Inc., carrying on business as Porsche Canadian Investment Company and 1109958 Ontario Inc., carrying on business as Porsche Cars Canada, Ltd. Defendants
BEFORE: Master Calum MacLeod
COUNSEL: Stanford Cummings, for the Wylie & Porsche defendants, moving parties Sean Van Helden, for the Robitaille defendants and for the plaintiff, responding parties.
HEARD: May 26th, 2015
ENDORSEMENT
[1] This action concerned a three vehicle rear end collision. In simplest terms, the Robitaille vehicle struck the Wylie vehicle which was in turn forced into the back of the Parris vehicle injuring Marina Parris. Eventually the other parties agreed to let the Wylie defendants out of the action but by that time the Wylie defendants were preparing to launch a summary judgment motion. They want costs of the action and of the motion. That is the only question remaining before the court as the action has otherwise been entirely resolved.
[2] I have reviewed the affidavit material, the factums and the written submissions filed after the motion. I decline to award costs to the defendants and I decline to award costs of this motion.
[3] I do not intend to give extensive reasons. Amongst the factors I have considered are the following:
a) Costs are in the discretion of the court. There is a general principle that costs will follow the event but there is no longer a rule based or statutory presumption. Policy considerations such as encouragement of settlement and discouragement of needless expense are also a feature of the costs regime. [1]
b) It was both reasonable and understandable that the plaintiff sued these defendants. As such the action was not frivolous or vexatious. In the current state of motor vehicle law it would have been negligent not to do so. With the combination of the limitation period, the verbal and monetary thresholds, various other complications created by the Insurance Act, insurance policy limits and the operation of the Negligence Act, it is not only completely understandable but also unavoidable that a plaintiff will engage in “shotgun litigation”. That is the plaintiff will sue every probable defendant. Certainly there is a costs risk to doing so but the risk of losing a right of action against a necessary defendant is higher.
c) It is permissible to plead speculative alternative theories of liability. The Court of Appeal has recognized the necessity of broad pleading in cases where the plaintiff cannot know all of the facts. [2] While exaggerated use of “shotgun litigation” and “boilerplate pleading” can be justly criticized and many people have advocated for a more precise and surgical approach to litigation, all parties adopted the same strategy. For example the Wylie defendants pleaded that they were not liable and pleaded that if the accident was not the sole responsibility of Robitaille, it was the fault of the plaintiff. They also pleaded that the plaintiff was responsible for her own injuries or for exacerbation of those injuries by (for example) not wearing a seatbelt. All of the pleadings contained allegations that had no basis in reality.
d) It was not unreasonable for the plaintiff to wait until after discoveries to release these defendants. In order to safely do so the plaintiff would have to be satisfied that the Robitaille defendant would admit liability and that the claim would be less than the Robitaille policy limits. I disagree that it was plain and obvious from the outset that there could be no liability on the Wylie defendants. All that was necessary for those defendants to be found liable to the plaintiff would have been a 1% apportionment of fault.
e) Similarly, faced with a claim that appeared to exceed the policy limits at the time of pleading, the insurer for Robitaille could not admit liability and was obliged to raise contributory negligence claims against the plaintiff and the co-defendants. I am not persuaded that Robitaille held up settlement by unduly continuing to deny liability or to release the Wylie defendants. [3]
f) The disagreement over discovery and attendance in Mississauga for discovery is not a factor to be considered. That was the subject of a motion and after the motion no costs were awarded. If counsel are not able to agree on compromises over the location of discovery then they can either follow the default provisions of the rules or seek court direction. That was done here and the court dealt with the matter including whether or not there should be costs consequences. It was improper to reargue the question of discovery conduct on this motion.
g) The disagreement over mediation shows a clear lack of understanding by defence counsel and the insurer concerning their obligation under the Insurance Act or the Rules. There is a positive duty to engage in good faith resolution efforts under s. 258 (5) (1). There is a duty to mediate under s. 258.6 or if that is not triggered then under Rule 24.1.
h) The court will not endorse the practice of “failing” mediation. This is code for pretending to mediate and misleading the court. It is improper. Mediation may be postponed on consent or a court order may be sought for an exemption but the Act and the rule otherwise require bona fide participation by those who have authority to settle. That is not a duty to admit liability or to contribute to a settlement if it is inappropriate to do so but it is a duty to seek consensual and non-adversarial resolution. It is a duty to participate. That is a “cost of doing business”. This is also true for plaintiffs. [4]
i) The defendants had agreed to go out of the action without costs provided the offer was accepted by a particular date. It was unreasonable not to permit a brief extension of time to obtain instructions or to reject an acceptance that was two weeks beyond the unilaterally imposed deadline. It was unreasonable not to grant reasonable accommodation to counsel requesting it whether that request for accommodation was due to illness, pregnancy, leave, inability to get instructions or any other factor that did not materially prejudice the defendant.
j) There was no need to launch a summary judgment motion. In any event the evidence that it was necessary to prepare “material” for the motion is misleading. All that was done was to schedule a case conference to set a date for the motion and to provide a draft notice of motion. The proposed timetable submitted by the Wylie defendants contemplated delivery of the motion record “90 days before the motion date”. No date was set because the matter was resolved at the case conference and no motion record was ever filed.
k) The legitimate costs for defending this action and being let out after discovery would have been pleading, production, discovery and attendance at mediation. The so called aggravating factors outlined by the defendant were either unreasonable or were self created.
l) Despite the fact that I am dismissing the motion for costs, I am not awarding costs of the motion. It was in principle appropriate for the Wylie defendants to seek reasonable costs as it was arguable that having extracted the client from the litigation, the defendant was successful. In addition the defendants had always indicated they would seek costs. It was also reasonable to put the matter before the court if the parties could not agree on the amount of those costs.
m) I have found that the defendants should not have costs because having agreed to go out without costs, they then behaved unreasonably when the other parties accepted (late) and they grossly overreached on the motion by seeking costs of a nonexistent summary judgment motion.
n) Finally I wish to observe that this motion was pursued with an unnecessary level of moral outrage, overreaction and a disturbing lack of civility. All counsel with carriage swore affidavits providing competing details of correspondence and communication which by and large I found unhelpful and uncompelling. Other counsel then had to argue the motion. This was all disproportionate to the amount legitimately in issue. This is not the fault of Mr. Cummings or Mr. Van Helden who were only the messengers.
[4] In summary, in the exercise of my discretion under s. 131 of the Courts of Justice Act, I decline to award the defendant any costs of the action (or the proposed summary judgment motion) and there will be no costs of this motion.
[5] As the parties are aware, I was appointed a judge of this court on June 16th, 2016 while this matter was under reserve but when the motion was argued it was before the master. As such the decision is released in my former capacity as case management master pursuant to s. 123 (1.1) and (2) of the Courts of Justice Act.
Master Calum MacLeod DATE: July 25, 2016
Footnotes
[1] Rule 23 dealing with discontinuance and Rule 20 dealing with summary judgment were amended in 1999 following the report of former Associate Chief Justice Osborne. Costs are determined under s. 131 of the Courts of Justice Act and Rule 57. The “result” is one of the factors to be considered.
[2] Khan v. Lee, 2014 ONCA 889; (2014) 123 O.R. (3d) 703 (C.A.)
[3] Had costs been awarded to the Wylie defendants I would have considered a “Sanderson Order” but I did not have to consider that issue. The responding parties had agreed between them how any costs award was to be paid.