Court File and Parties
COURT FILE NO.: CV-12-310-00 DATE: 2016, October 18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARCUS SHAVER AND MEATSNAX INC. Plaintiffs – and – GREAT CANADIAN MEAT COMPANY INC. AND CHRIS KURZ, MURRAY HART AND CODY DAVIS Defendants
Counsel: Marc Munro, counsel for the Plaintiffs Ian Johncox, counsel for the Defendants, Great Canadian Meat Company Inc. and Chris Kurz
Before: Tausendfreund, J.
COSTS ENDORSEMENT
[1] Attached and marked as Exhibit “A” is a copy of my endorsement of July 6, 2016 on a contested motion brought by the Plaintiffs against the Defendants, Great Canadian Meat Company Inc. and Chris Kurz (the “GCMC Defendants”). The Plaintiffs and the GCMC Defendants had been unable to reach an agreement on an appropriate discovery plan.
[2] At paragraph 13 of my Endorsement I held that the Plaintiffs’ draft plan, as accepted by the Defendant Hart (the Defendant Davis having been noted in default) is sufficient in detail, as contemplated by R. 29.1.03(3) of the Rules of Civil Procedure (“the Rules”). As such, it will serve as the discovery plan in this action, subject to certain amendments to the “oral discovery” part of the plan which I then detailed.
[3] Paragraph 14 of my Endorsement states:
“In the normal course, costs would follow the event. If the parties are unable to resolve the costs issue on this motion, they may provide short written submissions within 45 days.”
[4] Perhaps not surprisingly, the parties to this motion were unable to resolve the costs issue. The Plaintiffs seek partial indemnity costs of $12,548.72. The GCMC Defendants urge that there should be no costs, based on the Plaintiffs’ alleged failure to comply with my Order of January 29, 2015. Particulars of that Order are detailed at paragraph 6 of Exhibit “A”.
[5] As my reasons in Exhibit “A” apparently may not have been sufficiently clear, I now make these observations on the failure of the parties to this motion to have found a common ground for a proposed discovery plan:
a) This action was issued June 15, 2012.
b) Plaintiffs’ previous counsel took steps to move matters forward to the discovery stage. These endeavours may not have been perfect, yet any delay did not rise to the level of unreasonableness.
c) The passage of time allowed the GCMC Defendants to move for a dismissal of the action. A status hearing held on November 28, 2014 was adjourned to January 29, 2015. The Plaintiffs by then had appointed their current counsel.
d) I will now refer to paragraphs 5 and 6 of Exhibit “A”:
[5] . . . On January 15, 2015 and in advance of the status hearing, the Plaintiffs’ then newly appointed counsel provided a draft discovery plan and asked opposing counsel for comment. The response from counsel for the GCMC Defendants was to the effect that they did not intend to engage in a dialogue regarding the proposed discovery plan and that the GCMC Defendants would seek a dismissal of the action at the status hearing.
e) At the return of the status hearing on January 29, 2015 the GCMC Defendants sought a dismissal of the Plaintiffs’ action based on delay. My Order of that date provided that:
a) The status hearing be adjourned to January 28, 2016;
b) By May 31, 2015 the parties were to attempt to arrive at an agreement on a discovery plan;
c) If the parties could not come to an agreement on a discovery plan, by June 30, 2015 the Plaintiffs were to serve and file a motion for terms of a proposed discovery plan; and
d) Counsel were to attempt to identify a timetable for discoveries, undertakings, answers and refusals and a date when the action was to be set down for trial.
[6] I further noted at paragraph 6 of Exhibit “A”:
For reasons that are unclear, the GCMC Defendants did not approve that order until June 29, 2015. On that date, the Plaintiffs sent another request for comments by the GCMC Defendants on the Plaintiffs’ proposed discovery plan. In the absence of a response, the Plaintiffs made renewed requests on September 10 and October 19, 2015 and then brought a motion returnable January 21, 2016. The GCMC Defendants again sought a dismissal of the action on the return of the status hearing. On that date I ordered that the status hearing be adjourned sine die and that the parties were to be governed by a discovery plan as agreed or ordered. Absent an agreement, each side was to provide a factum on the proposed particulars to be included in the discovery plan.
[7] It is clear to me that the GCMC Defendants used the failure of the parties to this motion to reach a consensus on a discovery plan as a sword to seek dismissal of the Plaintiffs’ action. That is not the intent of R. 29.1. Its purpose is helpfully detailed in the “Summary” of this Rule:
“A basic purpose of the Rules is to ensure more open and complete discovery prior to trial to facilitate settlement or to make the trial process more efficient and fair, balanced against the principle of proportionality.”
[8] I find that the Plaintiffs acted reasonably and as of January 2015 did so with all due dispatch. But for my amendments to the “oral discovery” part of the discovery plan, the Plaintiffs were entirely successful. These amendments which I added were but a minor addition to the plan submitted by the Plaintiffs, a plan which I found was sufficient in detail and was to serve as the discovery plan in this action.
[9] As to general costs principles, I accept and adopt these comments of Cumming, J. at Waterloo (City) v. Ford, 2008 CarswellOnt 2692:
Costs are in the discretion of the Court: s. 131 Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedures. In Ontario the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, ie. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
Rule 57.01(1) lists a broad range of factors for the Court to consider, including the result achieved in the proceeding, the complexity of the proceeding, the importance of the issues and whether any step in the proceeding was improper, vexatious or unnecessary.
The Court’s discretion to award costs is designed to further three main objectives in the administration of justice, being: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to encourage settlements; and (3) to discourage inappropriate behaviour by litigants in their conduct of the proceedings. See British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan (1999), 46 O.R. (3d) 330 (Ont. C.A.); Fellowes; Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Ont. Gen. Div.) and; Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330 (B.C. C. A.).
In exercising its discretion, a Court must produce a result that is fair and reasonable in all the circumstances: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.).
[10] The Plaintiff will be entitled to costs from the GCMC Defendants fixed at $10,000.00 all in and due within 30 days of the date of the release of these reasons.
Justice W. Tausendfreund
Released: October 18, 2016