SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 08-CV355524
Heard: October 6, 2016
RE: Molinari v. Aloe BEFORE: Master Joan Haberman
COUNSEL: Lachmansingh, R. for the moving party Reed, C. for the defendants Bakos, P. for the non-party, James
REASONS
Master Haberman:
[1] This motion, which began as a request for documents from a non-party, soon developed a life of its own. As a result, this 2008 action has not moved forward for several years pending resolution of this issue, while the costs incurred by all parties have grown to what is now an astonishing level. In short, this motion is a case study as to why proportionality has been made part of our Rules. It also demonstrates why it is critical when handling a file to take a step back from time to time, to assess if the strategy you are pursuing is, in fact, a wise one.
[2] Although the only issue before me at this time is costs, I have before me no fewer than 12 records, briefs and facta. The moving party filed an initial record with tabs A through MMM (65 documents. This was followed by a supplementary record, going from tab A to tab OO (41 documents) and then a second supplementary record with 16 further documents.
[3] In total, the moving party filed 122 documents, most of which are not needed for the purpose of the motion. Instead of a narrative setting out the salient details of the main events, the supporting affidavit is simply a summary of each letter and other document at the tabs that follow and there is no story line filling in the gaps between the documents. A factual summary with a few pieces of key correspondence would have been considerable more helpful and far less expensive to replicate. It would also have made it far easier for me to have prepared for this motion and to have reached and written my decision.
[4] In the face of all of this evidence, written submissions and case law my task now is to simply deal with who should pay how much to whom, something normally done by way of written submissions. This was not possible here in view of all of the paper filed. The plaintiff seeks costs of $45,000 - $10,000 from the non-party, James, and the remainder from the defendants. James seeks costs in excess of $22,000 from the plaintiff. The defendants are seeking no costs and resist paying any.
[5] Though costs sought deal with the period of April 2015 onwards, a history of the proceeding, dealing with the issue of the defendants’ productions, is required for context.
HOW WE GOT HERE
[6] The action within which all of this arises involves a claim by a “silent” member of a joint venture. He seeks an accounting of profits made from the others, followed by payment of his fair share. The group had been involved in buying and selling homes and the plaintiff, now deceased, contributed his labour to the intervening renovation work. As his name was not on legal title to any of the properties, it seems the documents supporting these assorted transactions bypassed him and, as a result, he was unable to track what was paid for each purchase and what each property ultimately sold for. It is not clear why he waited until the completion of several of these transactions before pressing the issue.
[7] Kenneth James, now retired, was counsel to the partners to the joint venture agreement. He categorically denies that he ever acted for the deceased, who was not involved in any of the purchase or sale transactions. Only those named on title or some of them, dealt with James to the exclusion of the deceased. It is not clear if James the deceased or even knew about his involvement in these properties. As a result, though the deceased was a party to the joint venture agreement, he was not a position to simply ask James for copies of the relevant documents as a client normally would.
[8] The motion for which I have been asked to fix costs was brought pursuant to Rule 30.10 and was heard in April 2015, but as the issue was initially dealt with by an earlier motion in 2009, I have to go back in time to provide context.
The Dash Order
[9] On July 21, 2009, Master Dash ordered the defendants Chiappetta and Pulcini to provide the plaintiff with their authorization directed to Kenneth James to permit the plaintiff to directly obtain the missing documents from Mr. James pertaining to 93 and 95 Evans Avenue and 22 Carnarvon Avenue at the plaintiff’s expense.
[10] This order makes four things perfectly clear: a) that as early as July 2009, there has been no substantive opposition to this relief from the defendants; b) that the defendants were to provide James with an authorization; c) that James was to produce the documents pertaining to three properties directly to the plaintiff; and d) that the expense for doing so was to be borne by the plaintiff.
[11] This was a very straightforward order. Had James simply done as ordered and had he provided some real explanation for his fee for doing so, this issue could have been revolved in 2009. Instead, we are here, 7 years later, dealing with costs, while the action has effectively sat dormant all this time.
[12] It should be noted that both plaintiff and defendants, as well as James, were initially represented by counsel other than those now appearing for them. Thus, the wrong path seems to have been selected early on by the initial counsel for both the plaintiff and James. When new counsel came on board for each, they both missed an opportunity to correct that path and resolve matters before they got completely out of hand.
Fallout from the Dash Order
[13] By letter of July 22, 2009, a day after the Dash order was made, James wrote to the plaintiff’s then counsel, Mr. Tsantis, to advise that the documents sought regarding the Evans properties had already been provided to Pulcini a week or so earlier. This revelation by James is an important one, in view of his having later invoked legal privilege when asked about whether he had conveyed documents to her.
[14] This was also an irrelevant piece of information at that time as Master Dash had ordered James to provide the documents directly to plaintiff’s counsel so that is what James ought to have done. Instead he opened a proverbial can of worms by indicating his client already had them, but then refusing to confirm that was the case when asked to do so.
[15] The catalyst for all the material I now have before appears to have been a fax from James, dated August 5, 2009. He wrote the following:
I acknowledge your letter of August 4, 2009. I will arrange to retrieve the referenced files from archives and respond to your request. Please forward the sum of $250 plus GST for each of the requested files (($1050).
[16] There are two aspects of this fax that are not at all clear. First, what James proposes to charge is not consistent with his fax of only a few days earlier, where he advised that he had already provided the documents for the Evans properties to Pulcini. I can think of no reason for him to have pointed that out other than to convey his expectation that the plaintiff would get these documents from Pulicini, rather than from him. As a result, his costs should pertain only to the remaining two files involving the Carnarvon property. He does not explain why he sought to charge for four files in this context.
[17] Further, James simply tossed off a number of $250 plus GST per file, without any explanation as to how he calculated this fee. James was still a practicing lawyer at that time, as his counsel advised. He must therefore have had an hourly rate. He says nothing about that in his response, nor does he provide any indication of the time he expected would be involved or make it clear how he calculated disbursements, if he expected there to be any.
[18] James stated only that he must retrieve the files from “archives”, but he fails to explain what that would involve. Are the archives in a room in his office, in the basement of his home or in an independent storage facility? It seems to me that retrieval costs, if there were any, could vary significantly, depending on where the documents were being stored and the difficulty or ease in accessing them.
[19] Further, as both files sought for Carnarvon pertain to the same property, they may well have been kept together, such that locating one could have easily lead to the other. In that context, a $500 fee to locate, copy and provide both required some explanation, in view of the small number of documents actually sought.
[20] When the court orders a non- party to produce documents and allows them to recover the costs associated with that task, this is not intended to be a windfall. It is expected that the requesting party will never have to pay anything above reasonable costs, whether or not the word “reasonable” is included in text of the order. This is covered by Rule 30.10(5), which, interestingly, James now relies on first the first time.
[21] It is therefore incumbent on the non-party to give some indication of the basis for their fee, particularly where the amount sought appears to be on the high side, as was the case here. Absent that information, how can a requesting party assess if what he is being asked to pay is reasonable? At first glance, this fee did not appear to meet the “reasonable” threshold.
[22] Before going to back to discuss this fee with James, Tsantis wrote to then defence counsel, Mr. Payne, asking that Pulcini provide him with the documents she apparently obtained from James. Tsantis’ understanding that she had them in hand was based on what he had been told by James. By getting half the documents from Pulcina, the plaintiff stood to save at least half of James’ quoted fee. However, it does not appear a response was received or if one was, it is not part of the record before me.
[23] It was not until August 17, 2009 that Tsantis wrote back to James, to advise as follows:
I am willing to pay for the cost of retrieving the files from storage if indeed that have been in storage since my first letter to you of July 9th (but I will need satisfactory evidence like a supporting invoice or statement from the storage company to confirm same). I am also willing to reimburse you for your assistant’s time at cost to obtain and copy the requested documents, as well as the cost of photocopies, but I would expect that it would take no more than one hour or so for your assistant to attend to this work.
[24] What is clear from this letter is that Tsantis never disputed that he had to pay or what he was being asked to pay. He simply asked for some explanation, and opined that it should not take James’ assistant more than an hour or so to attend to the task. This was a perfectly acceptable position for Tsantis to have taken and accords with standard practice.
[25] Matters could have been resolved quickly at this point. If James was sincerely of the view that the number he had quoted was one he could support, he ought to have provided that support to Tsantis there and then. That, however, was not the path he chose to pursue.
[26] Instead, James elected to be unhelpful. Rather than taking a line or two to explain how he arrived at his $250 fee per file number, he said only the following in his fax of August 18, 2009:
I have your letter of August 17, 2009. I see nothing in the endorsement entitling you to mandate my fees for compliance with your request. As a result of your letter, I have put a hold on complying with your requirements.
[27] James seems to have been of the mind that he could charge what he wanted, that the moving party was not entitled to “mandate” his fee and that he was not required to explain it. As I read Tsantis letter, he was not trying to “mandate” the fee, only to understand it.
[28] As a result, this response from James was unhelpful and it set the tone for all that has followed since, to where we are now, more than 7 years later. James was not correct in his interpretation of the letter and the tone of his response was confrontational. With nothing further from James, Tsantis was unable to assess whether the fee sought was reasonable.
[29] While the trigger for all of this was what I view as a very poor judgment call by James, Tsantis’ subsequent conduct only served to exacerbate matters. Upon receipt of James’ response, Tsantis had several possible courses of action. He could have simply held his nose, paid the $1050 sought and gotten on with the action. Although it seems to be an extraordinary sum for what was sought, it certainly pales in comparison to the amounts now in issue, after years of doing legal battle. In hindsight, it would have been a preferable course of action.
[30] Alternatively, Tsantis could have moved before the master at that time to clarify the issue of costs to be paid to James for his efforts.
[31] Unfortunately, Tsantis chose a third approach, one almost certain to increase hostilities and delay the progress of the action: he reported James to the Law Society. Although I can understand Tsantis’ frustrations with the situation, this, in my view, was a fairly extreme response to the problem. James was uncooperative, to the point of being rude, but his conduct, though far from exemplary, did not merit the intervention of the regulatory body at that point.
[32] Neither a copy of the complaint nor evidence as to how it was resolved is before the court. However, on September 15, 2009, James sent Tsantis a statement of account for the files, which I am told was the result of the complaint. It is drafted as a standard form legal “boiler plate” statement of account, so it still provided no real indication of what was actually done and how long it took to justify a flat rate of $250 per file.
[33] Matters were therefore no further ahead despite the intervention of the Law Society. James seems to have been playing some sort of game, and a very expensive one, was not about to budge from his initial position.
[34] It was not clear at that point if any of the works described in the statement of account had been done or if this was simply a projection. The account is for documents dealing with both the purchase and sale of 22 Carnarvon, as well as the sale of 93 Evans and 95 Evans, and it reads as follows:
To all our services rendered in connection with this matter including review and respond to your various requests for retrieval, copying and delivery of material;
To communications with respect to required authorizations and safeguards;
To review of consent and court order confirming our authorization to provide the requested material to your client in accordance with our need;
To retrieval of files from storage;
To identifying material covered by court order;
To copying thereof and to delivery. $1050.
[35] It is obvious that all of the above tasks would be involved in the process. However, having seen the court order and the authorization, I can safely say it should not have taken longer than 10 minutes to review it in a manner that would pertain to all 4 files. Similarly, all communications and delivery would be common to all four files, and to the extent that there was more than one letter from Tsantis, this results from James’ attitude and conduct.
[36] James had yet to explain where the files were and what the cost associated with retrieval was going to actually be and without knowing how many documents were involved it was not possible to assess photocopying charges. Yet, $250 was sought for each file requested, the identical amount sought from the outset. James was not prepared to back down or to provide any real insight into how he arrived at these numbers.
[37] The big item, one would expect, would be retrieval of files from storage, yet there was no explanation of where these files are stored and what would be involved in accessing them. No disbursement account from a storage facility was appended to demonstrate that there was or would be a disbursement associated with this exercise. We learned in court during the hearing that there was, in fact, no direct disbursement for retrieval. This is a critical point to which I will return.
[38] In short, this statement of account still fails to illuminate how James arrived at this number for each file, other than pointing out the obvious steps he would have to follow. The matter remained at a standstill.
Bring the motion back to court
[39] As a result, Tsantis decided to bring the issue back to court. There was some uncertainty about whether Pulicni had, in fact, received some of the requested documents from James – though he claimed to have given some to her, none of the documents appeared in Pulcini’s supplementary affidavit, served on October 6, 2009.
[40] Tsantis therefore wrote to both James and Payne on October 7, 2009, seeking clarification of this point. Having received no response, he wrote again on October 15, 2009.
[41] In the second letter, Tsantsis advised that the motion had been booked for November 30, 2009 and he explained when he wanted to examine James as a witness in aid of the motion. By October 19, 2009, Tsantis was still without a response from either counsel. He wrote to say he was proceeding with is motion and would serve a summons to witness on James shortly.
[42] This is another important turning point in the piece for two reasons. First, though the defendants take the position that they have been blameless throughout, having consented to the initial production motion in 2009, James had indicated that he had given some of the documents to Pulcini. She neither denied the fact, nor included them in her supplementary productions and letters to her counsel seeking clarification went unanswered.
[43] Further, the plaintiff was about to ask the court to condone and order cross-examination of a non-party over the issue of his reasonable costs. While no one appears to have done the research, I trust this was a first and I hope it will be the last time something of this nature occurs.
[44] On October 20, 2009, James finally responded to the three outstanding letters. What is quite remarkable about this response is that James goes on at considerable length about why he is not required to advise Tsantis what he provided to Pulcini, nor can he do so without violating solicitor-client privilege. He says this, though the information about the documents having been provided to Pulcini came from him. It was James who was the source of this confusion as he wrote to Tsantis on July 22, 2009, less than three months earlier, to advise that he had already provided the documents sought regarding the Evans property to Pulcini.
[45] Despite this, James suddenly seemed to recall the doctrine of privilege and sought to invoke it. In view of how unhelpful James had been up to this point, this appears to have been more of the same. James ended his letter by stating that unless he was paid, if the matter persisted, he would take counsel.
[46] It is important to bear in mind that this all began over what James could charge to provide documents in compliance with a court order. James volunteered information about what he had given his client, then refused to comment. James refused to provide anything close to a reasonable breakdown as to how he arrived at his costs. Tsantis sought to cross-examine him as a result, again, not a good strategy, but certainly something the two of them could have worked out without James resorting to retaining counsel
[47] As I read the correspondence, Tsantis had reached a high level of frustration. He wrote in August to make it clear he was willing to pay costs, but questioned why he was being asked to pay so much. It is clear he always and only wanted to understand why the quantum sought was so large. He asked for details, for some sort of breakdown. Since that point, James has tried to bully him into submission.
[48] Comments in James’ October 20, 2009 letter such as you, Mr. Tzantis, are an absolute novice when compared with the individuals and bodies from whom I experienced intimidation over my 40 years of practice. Intimidators are, from my experience, generally insecure bullies and that same experience has provided me with an infallible and effective response. I will engage counsel and seek costs against you personally…and depending on the advice of counsel, commence an action against you personally.
[49] This was followed by further correspondence from James on October 22, 2009, wherein he repeated the threats, adding that he would be looking for compensation for any further involvement in the matter at his hourly rate of $825, a hefty rate, indeed, in 2009 and one I have come across only rarely in the 7 years that have passed since then and only charged by top counsel.
[50] While it may not have been appropriate for Tzantis to have engaged the Law Society in these issues or to have served a summons to witness on James, James’ threats to seek costs from him personally and to commence suit against him are over the top, and clearly intended to intimidate him. Reading these letters in sequence, one gets the sense that this was all some sort of game to James and he was writing the rules of the game as it unfolded. His repetition of these threats only solidifies my concerns as to what was really going on here.
[51] At that point, James could and should have folded his hand and asked for what was reasonable to produce the documents or at least explained why what he sought met that criterion. The only reason Tsantis sought to cross-examine him was because it was now unclear if Pulcini had the documents in issue, and if not why James said he had given to her. This confusion was caused by James, when then took the position he could say nothing about what he gave her. This defendant, for the most part, also stayed closed-mouthed.
[52] Matters continued along the same “out of control” trajectory. James became increasingly less cooperative and more combative. I am left to ponder how and why this occurred and I conclude that, having tossed out the fee of $250 per file without much thought, James simply expected it would be paid. Justifying the number ought to have been a fairly easy task if the number was, in fact, justifiable.
[53] James was again faced with two options: he could justify this fee or to back down and come back with an appropriate number. He did neither. Instead, he dug his heels in and began making threats, all of this in the face of a court order requiring that he provide these documents. While he was entitled to costs, he was always only entitled to reasonable costs. His failure to explain the numbers leads me to draw the inference that this was a number he had picked from the air and was then too proud or too stubborn to move from. My views are reinforced by what I was advised by his counsel during oral submissions, which I will deal with later in these reasons.
[54] The motion was, indeed, booked for November 30, 2009 but did not proceed as it was not confirmed. There is nothing in the record to explain why it was not rebooked, and, as noted, there is no narrative in the affidavit to explain much beyond what is contained in the correspondence.
The next stage
[55] In the interim, the plaintiff set the action down for trial on December 2, 2009, though clearly not yet satisfied with the defendants’ productions and in February 2010, James retained counsel. Again, this was a step taken by James which was clearly going to cost him far more than the $1050 he was seeking by way of production fee. He proceeded this way nonetheless. This was yet another opportunity for James to sit back, take stock and re-evaluate, unfortunately, it as another opportunity missed.
[56] On February 4, 2010, James’ counsel wrote to say that James had provided the documents in issue directly to the defendant, who, in turn, delivered the documents through their counsel to your office. No cover letter from James to the defendants appending these documents was attached. In any event, James would not know what the defendants did with the documents after he passed them along and nothing of that kind has been produced to date, nor have any of the defendants provided evidence to the effect that this is what occurred. They took a back seat throughout this skirmish.
[57] It seems to me it would have been far more effective for Tsantis to have cross-examined Pulcini at this point, instead of James – did she or didn’t she get the documents? If she got them where are they now? But this is not the path he chose.
[58] Oddly, Tstantis wrote to James’ counsel the same day to say that the claim had settled so there would be no need to call James as a witness. Current counsel for the plaintiff disputes that this was the case and cannot explain the letter. It is not clear if Tsantis was asked to provide evidence and, if not why not. Judging from the Case History, there was a pre-trial shortly before this letter was sent, so it is conceivable the parties were in discussion and Tsantis believed settlement was imminent.
[59] Regardless of whether or not the case settled James expected to be paid, though it is not clear if he ever provided any documents to the plaintiff.
[60] In May 2011, the plaintiff appointed new counsel. Instead of chasing the defendants for documents, he, too, went after James, apparently oblivious to James’ comments about having already turned the documents over to the defendants. By this time, James had changed his position and had increased his fee – he was now looking to be paid $1842.54 before undertaking the necessary retrieval. This was intended to cover his legal costs, as well.
2012 onwards
[61] Over the course of the next two years, questions arose as to whether James or the Law Society had control of his documents, as he was the focus of an investigation unrelated to this matter. By October 2014, the Law Society had made it clear that they did not have any of these documents.
[62] This did not impede plaintiff’s counsel to continue to engage the Law Society in further discussions about the issue and to seek an authorisation for the defendant allowing the Law Society to release documents, which they had already said they did not have.
[63] In November 2014 James’ counsel returned to their position that he had already handed the documents over to the defendants, such that James now offered to retrieve the documents again if he was paid. A plethora of further documents were also sought at this time, and with respect to those James, a non-party, relied on the age of the action as a bar to the plaintiff having further discovery rights. Again, the defendants were not asked about any of this, the focus remaining on James.
[64] On November 26, 2014, plaintiff’s counsel wrote to advise that he would be moving against James and the Law Society for further production. The defendants were not included in the motion. In response, the Law Society repeated that they continued to have nothing in response to the request and James now said he would provide documents regarding the original three properties in issue for $1500. By February 2015, James’ fee had climbed back to $1842.54. He added that he would charge $250 for each additional file but that he doubted there was anything else still available beyond the documents initially sought.
[65] At some point, the defendants took the position that they had already provided these documents, presumably to plaintiff’s previous counsel. No one has been able to produce a record of this conveyance and it seems odd that Mr. Tsantis would have invested his time and emotion in the pursuit of these documents from James if he already had them in hand. It is also odd that the defendants waited until this point to take this position.
[66] In April 2015, almost 6 years after the Dash order requiring James to produce documents on receipt of the authorization and his costs, James wrote to plaintiff’s counsel to say that have had shut down his practice three years earlier, and that his computer system was no longer operative as a result. He claimed that he would have to bring in former staff to assist him, using the computer, to located which box these document would have been stored in with Iron Mountain. There is no explanation as to why it took him three years to provide this information.
[67] This was the first mention of Iron Mountain in the record. It is still not clear if these documents have been in the hands of Iron Mountain back to 2009 at the time of the Dash order or is they were only moved here after the practice was shut down.
The Brott order and the aftermath
[68] Everything came to a head before Master Brott on April 10, 2015, when she ordered the defendants to review the four files in issue and to advise of their position, among three possible scenarios, by May 1, 2015. The remainder of the motion was adjourned to October 16, 2015. It was before Master McAfee at that time, and she adjourned it to March 9, 2016¸when it came before Master Pope. As none of these masters seized themselves of the motion, it ultimately wended it way to my court on March 9, 2016. At that time, I ordered James, who consented, to produce the documents he had pertaining to 34 Evans and 7 Lloyd George to defence counsel, who would then provide them to plaintiff’s counsel. The remainder of the motion was adjourned to May 27, 2016 and from there to October 6, 2016.
[69] By the time the motion came before me, it involved further documents, further issues and some of the defendants had been added to it. However, the October 2016 appearance before me was to deal with costs only as the parties and James had apparently made some form of peace.
SUBMISSIONS
James’ costs:
[70] James’ costs have moved all over the map but up to now, have always been below $2000. He currently claims he expended in excess of $22,000 on this matter, with his partial indemnity costs coming in at $16,517.25. Although he is no longer practicing law and claims he hasn’t been for the last three years, and though he says nothing about what, if anything he currently does with his time, he charged his time at the rate of $275 from March 2015 onwards. There is no explanation for this.
[71] James’ counsel maintains that James should be paid his reasonable costs, as per the Rules pertaining to productions from non-parties. This is what James was entitled to at the outset. But he has not conducted himself reasonably and it remains unclear what his reasonable fee would be.
[72] The plaintiff never refused to pay his fee – his counsel simply tried to understand the basis for it. This is clear from a reading of the correspondence.
[73] James’ counsel is not correct when he asserts that James did not cause any delay in this action. The large chain of correspondence clearly demonstrates otherwise. A large part of why the matter got so far off the rails was James’ approach to these issues and to how he dealt with other counsel.
[74] What was particularly perturbing is that even at the return of the motion to deal with costs, James’ maintained an opaque stance when dealing with his costs. Though he clearly had to retrieve these files from Iron Mountain, or so he said, James provided no invoice for that service. Eventually his counsel conceded that there is no retrieval cost, but that instead, James was apportioning a portion of his storage costs to this request.
[75] James’ bill of costs is found at the back of his factum. It is clear he is claiming $3250 for fees and disbursement to retrieve 13 recent files. In brackets, he added that this involves disbursement such as monthly Iron Mountain storage charges absorbed in the amount of $250 per file). “Absorbed in” is far from being a clear way of saying what he was actually trying to do here.
[76] After considerable questioning by me during oral submissions, we have all finally discovered how James came up with a fee of $250 per file. This is what he has offset against his monthly storage fee, as there was no retrieval fee. I know of no basis on which James can seek to offset storage fees by claiming them as retrieval fees. It is not reasonable for a non-party to seek to cover his storage costs, costs he must incur pursuant to his obligations as former counsel, by attributing a portion of them to a motion that involves retrieval.
[77] James has also charged for his own legal fees, fees he incurred because he was not forthright about how he arrived at this $250 fee and because he first claimed he had given documents to Pulcini but then refused to confirm that, relying on privilege.
[78] Similarly, the ream of correspondence derives from the road blocks James kept putting in the plaintiff’s path. I don’t see how any of this can be included in a reasonable fee.
[79] At the end of the day I am prepared to award costs to James that represent what would have been reasonable fees at the outset of this 7 year saga, but inclusive of the additional 13 files sought more recently for a total of $600. The rest of what he claims either represents costs incurred as a result of his own bad conduct or is not chargeable as it has nothing to do with retrieval.
[80] It is important to add that these are documents that have always been within the defendants’ control, and which ought to have been sought by them to allow them to complete their affidavit of documents properly. I therefore order the defendants to pay these costs. The defendants shall therefore pay James’ costs, fixed at $600, within 30 days.
The plaintiff:
[81] The plaintiff seeks $45,000, $10,000 of which to be paid by James, the remainder from the defendants.
[82] As noted, although James is in large part responsible for what I view as a mess, both the plaintiff and the defendants had a role to play here. Though James was more aggressive than cooperative, Tsantis allowed James to get under his skin and responded in kind, by reporting him to the Law Society and threatening a summons to witness. This did nothing to dampen the fires.
[83] He also pursued James when he should have turned his focus to the defendants, who sat back for far too long and only now mention in documents recently discovered in May 2016. This action should have been tried several years ago – why is it that documents, some sought for about the last 7 years, are still emerging at this very late date? There are inferences to be drawn here.
[84] New counsel came on board for the plaintiff and also ignored the defendants, instead dragging the Law Society into the fray, though they repeatedly said they had none of the documents sought.
[85] On the basis of all of the foregoing, I find the plaintiff shall have their costs from the defendant only, but that they are not entitled to full costs in view of their part in this piece. The defendants shall therefore pay costs to the plaintiff fixed at $30,000 within 30 days.
Master Joan M. Haberman
Released November 4, 2016