1668135 Ontario Inc. v. Pearce, 2016 ONSC 6667

CITATION: 1668135 Ontario Inc. v. Pearce, 2016 ONSC 6667

COURT FILE NO.: CV-15-530281

DATE: 20161026

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: 1668135 ONTARIO INC., Plaintiff

AND:

ANDREW PEARCE, FRANK SUPPA, STANISLAV TSYSAR and THE CITY OF VAUGHAN, Defendants

BEFORE: Mr. Justice M. D. FAIETA

COUNSEL: James C. Morton, for the Plaintiff

Catherine DiMarco, for the Defendants

HEARD: October 26, 2016

C O S T S E N D O R S E M E N T

[1] The individual defendants are employees of the defendant municipality. The plaintiff claims damages in the amount of $6 million related to a development project being undertaken by the plaintiff within the defendant municipality. The Statement of Claim lacked particulars regarding the basis for the individual defendants’ liability. On June 17, 2016, I granted a motion brought by the individual defendants’ to strike the claim for disclosing no cause of action. The plaintiff was granted leave to file an Amended Claim within 30 days. A further motion was brought by the individual defendants to strike the Amended Claim for the same reasons. I granted this motion on September 15, 2016. The plaintiff was given leave to file a further Amended Claim by September 22, 2016. Costs of both motions were reserved.

[2] I agree with the following statement made by Justice Myers in Fimax Investments v. Grossman, 2015 ONSC 2048, at para.7:

The fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579, (2004), 71 O.R. (3d) 291 (Ont. C.A.), at paras 26, 37.

[3] Further, Rule 1.04(1.1) of the Rules of Civil Procedure provides that:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[4] In my view, the principle of proportionality informs the balancing of interests in deciding whether an award of costs is “fair and reasonable”: see Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, at paras. 126-7.

[5] The individual defendants seek a total of $18,052.30 in costs on a partial indemnity basis for both motions.

[6] The plaintiff submits that success was divided because leave was granted to file a further amended claim. I reject that view as the individual defendants, in the main, obtained the relief that they sought on each motion.

[7] The plaintiff’s very brief submissions baldly asserts that the costs claimed are excessive and well beyond what a party would expect without providing any particulars for the basis of that assertion nor by providing its outline of costs for both motions.

[8] I reject the individual defendants’ submission that substantial indemnity costs should be awarded as the plaintiff is not guilty of “egregious misconduct in the proceeding”. See Iannarella v. Corbett, 2013 ONCA 110, para .139. The plaintiff’s repeated inability to deliver crafting a proper pleading does not meet this standard. Parenthetically, I note that the individual defendants submit that the further Amended Pleading was delivered shortly after the September 22, 2016 deadline and, in any event, remains inadequate. The plaintiff is at liberty to bring a further motion to strike. It is not a matter that is appropriate to decide on this costs motion.

[9] Having considered the submissions of the parties, and the factors described above, including the principle of proportionality, I find that that it is fair and reasonable to award the individual defendants the sum of $18,052.30, in total, inclusive of disbursements and taxes, for both motions.

Mr. Justice M.D. Faieta

Released: October 26, 2016