Court File and Parties

Court File No.: CV-15-537074 Date: 20160927 Ontario Superior Court of Justice

Between: NORTHERN CABLES INC. Plaintiff – and – KEVIN PHILPOTT, MARK PHILPOTT, JESUS NUNEZ, JOHN DOE DISPATCHER 1 and JOHN DOE DISPATCHER 2 Defendants

Counsel: Annette Uetrecht-Bain for the Plaintiff Romesh Hettiarachchi for the Defendants Kevin Philpott and Mark Philpott

Heard: In writing

Perell, J.

Reasons for Decision - Costs

[1] The Defendants Kevin Philpott and Mark Philpott brought a motion to have Northern Cables Inc.’s action dismissed as either an abuse of process or for failure to disclose a reasonable cause of action. I concluded that the action was not an abuse of process, but that Northern Cables’ Statement of Claim should be struck out in its entirety but with leave to amend to plead a reasonable cause of action. See Northern Cables Inc. v. Philpott, 2016 ONSC 5152.

[2] The Philpotts seek costs for the motion of $22,817.59, all inclusive of disbursements and HST, on a substantial indemnity basis.

[3] Northern Cables Inc. submits, however, that costs should be in the cause. In the alternative, it submits that it should receive costs of $8,569, all inclusive of disbursements and HST.

[4] Technically speaking, the Philpotts were the successful parties on the motion, but in my view, it was a pyrrhic victory. The Philpotts’ primary purpose was to escape being sued by Northern Cables. The Philpotts, however, failed to stop Northern Cables’s action as an abuse of process, and it still remains to be seen whether there is a claim against the Philpotts, because I granted Northern Cables leave to amend its Statement of Claim to plead a reasonable cause of action against the Philpotts.

[5] In the circumstances of this case, this is just a pyrrhic victory for the Philpotts and a major defeat on the issue that was the driver for the motion, their cheeky abuse of process allegation. I say “cheeky” because the mess that is the companion action that was the foundation for the abuse of process claim was largely caused by the Philpotts’ lawyer delivering a defence for a party for whom he did not act.

[6] The Philpotts submit that I should ignore the circumstances of the companion action that was the foundation for their failed abuse of process argument and award substantial indemnity costs because the motion succeeded in striking Northern Cables Inc.’s Statement of Claim.

[7] I disagree with this submission, but even if I did not disagree, there is no basis for making a punitive costs award against Northern Cables Inc. in the circumstances of this case. As a piece of legal craftsmanship, its Statement of Claim was abysmal, but it was not so poor that I saw no hope for a viable pleading to be delivered.

[8] Given the lack of civil procedure acumen of both parties leading up to the motion, I generously suggested in my Reasons for Decision that the costs of this motion should be in the cause. This was a generous suggestion because there is a case to be made that there should be no order as to costs.

[9] Having read the costs submissions of both parties, I return to my initial assessment that the fairest and most appropriate exercise of the court’s discretion is to order costs in the cause and to fix those costs at $8,500, all inclusive.

[10] Order accordingly.

Perell, J. Released: September 27, 2016