Kavanagh v. the Estate of Pierrette Feihl, 2016 ONSC 7886

CITATION: Kavanagh v. the Estate of Pierrette Feihl, 2016 ONSC 7886

COURT FILE NO.: 14-62412

DATE: 2016/12/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kyle Kavanagh, Plaintiff

AND

The Estate of Pierrette Feihl, deceased, by its Litigation Administrator, Jacoba Agbovi, and Suzanne Bertrand, Defendants

BEFORE: C.T. Hackland J.

COUNSEL: William J. Sammon, for the Plaintiff (moving party by cross-motion) Michael R. Switzer, for the Defendants Jacoba Agbovi, and Suzanne Bertrand, (moving parties)

HEARD: December 6, 2016 (Ottawa)

ENDORSEMENT

[1] This is a motor vehicle case in which the Plaintiff claimed damages for injuries received in or as a result of an accident involving three vehicles on the Inter-Provincial Bridge approaching the City of Ottawa, which occurred in April of 2013.

[2] Examinations for discovery of the defendant Agbovi were held on June 3, 2016 and on June 8, 2016, the Plaintiff’s counsel, Ms. Estabrooks wrote to Mr. Switzer, counsel for Mr. Agbovi, (and the vehicle owner, Ms. Bertrand) advising that she was prepared to have the action dismissed as against his clients on a without costs basis, pursuant to Rule 23.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] Ms. Estabrooks subsequently served and filed a Notice of Discontinuance with respect to Agbovi and Bertrand on June 21, 2016, two days before she left on a personal leave. This notice provided that the costs of the action would be determined in accordance with Rule 23.05(1).

[4] The Plaintiff’s file was assumed by his present counsel, Mr. Sammon who communicated to Mr. Switzer that the filing of the Notice of Discontinuance was irregular (as leave of the Court had not been obtained), but suggested that the Notice be treated as being filed on consent under Rule 23.01(c), subject to the Defendants’ right to seek costs under Rule 23.05(1)

[5] Rule 23 provides:

23.01 (1) A plaintiff may discontinue all or part of an action against any defendant,

(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;

(b) after the close of pleadings, with leave of the court; or

(c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10.

[6] There had been a case conference in the action in February of 2016 at which time the Master approved a timetable contemplating examinations for discovery in June 2016 and a motion for summary judgment that the defendant Agbovi wished to bring, returnable on December 6, 2016 (the return date of the present motion).

[7] The parties disagreed as to whether the Defendant Agbovi was entitled to costs to the date of the Notice of Discontinuance and the Plaintiff suggested that issue could be argued at the December 6, 2016 date specified in the case management order. In my view, that is what should have happened.

[8] The general practice in motor vehicle accident cases is that after examinations for discovery are held, plaintiff’s counsel examines the evidence carefully to determine the viability of their case against each named defendant and they consent to a dismissal of the action against any defendant against whom they do not have a viable claim. The Defendants’ insurer normally consents to a dismissal without costs.

[9] Nevertheless, it is open to a defendant against whom an action is dismissed, to seek his or her costs to the date of discontinuance as the Defendant Agbavi sought to do here. This might be appropriate where the Plaintiff’s claim was frivolous or vexatious or pursued in bad faith.

[10] In any event, the Plaintiff asks by way of cross-motion that the filing of the Notice of Discontinuance be approved nunc pro tunc to the date of filing, and I so order. There was absolutely no reason to oppose doing so in the face of the Plaintiff’s offer to have the Court adjudicate on any costs payable, as contemplated by Rule 23.05(1). That sub-section provides:

23.05 (1) If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting the costs of the action. O. Reg. 394/09, s. 8.

[11] The Defendant Agbovi has insisted on preparing and arguing a motion for summary judgment asking that the Plaintiff’s action be dismissed on the basis that it could not succeed in the factual circumstances of this accident. No understandable explanation was offered in argument before this Court as to what purpose could be served by proceeding with a summary judgment motion in the face of the plaintiff’s Notice of Discontinuance which was filed six months ago. The summary judgment motion was a complete waste of the Court’s time and an unnecessary expenditure of costs for both parties.

[12] The object of bringing the summary judgment motion appears to have been to leverage the costs to which the Defendant Agbovi might be entitled for the period up to the date of the filing of the Notice of Discontinuance. Mr. Switzer advised that it was his position that because a summary judgment motion had been scheduled in the original case management order, any costs should be assessed at the higher rates reflected in the summary judgment case law and also so that the Plaintiff’s claim could be seen to have been pursued in bad faith on the evidence filed on the motion.

[13] In the Court’s view, costs, whether assessed under Rule 20 or Rule 23, are the same in the sense that costs are in the discretion of the Court under s. 131 of the Courts of Justice Act, R.S.O. 1990, C. C.43 and are to be awarded by considering the factors as set out in Rule 57.01.

[14] I also find that it was not unreasonable for the Plaintiff to have initially joined the Defendant Agbovi (and the vehicle owner, Bertrand) in this action, having regard to the circumstances of this three vehicle accident, the police report and the pleadings in a companion action by the other occupant of the Bertrand vehicle.

[15] Pursuing the motion for summary judgment in the face of the Plaintiff’s efforts to discontinue the action mirrors the recent case of Parris v. Wylie, [2016] O.J. No. 4094 in which that approach was appropriately held to be highly improper by Master MacLeod, as he then was. I agree with the Master’s observations in that case.

[16] In the circumstances, I view the summary judgment motion to be vexatious, unnecessary and an abuse of process. I order that the said motion is permanently stayed.

[17] In the exercise of the Court’s discretion and in the hope that a message will be understood that the Court’s time is not to be wasted in this fashion, I order that the moving parties will pay the plaintiff his costs of the summary judgment motion herein which I fix in the sum of $15,305 inclusive of disbursements and HST, and I further order that no costs will be awarded under Rule 23.05(1).

Mr. Justice Charles T. Hackland

Date: December 16, 2016

CITATION: Kavanagh v. the Estate of Pierrette Feihl, 2016 ONSC 7886

COURT FILE NO.: 14-62412

DATE: 2016/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kyle Kavanagh, Plaintiff

AND

The Estate of Pierrette Feihl, deceased, by its Litigation Administrator, Peter Hagen, Jacoba Agbovi, and Suzanne Bertrand, Defendants

BEFORE: C.T. Hackland J.

COUNSEL: William J. Sammon, for the Plaintiff (moving party by cross-motion) Michael R. Switzer, for the Defendants Jacoba Agbovi, and Suzanne Bertrand, (moving parties)

ENDORSEMENT

Hackland J.

Released: December 16, 2016