Court File and Parties
COURT FILE NO.: 13-58138 (Ottawa)
DATE: 2016/11/28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Julie Michelle Scharf, Michelle Hancock and Keith Hancock, Plaintiffs
and –
Ottawa Athletic Club Inc., LEGENDS MARTIAL ARTS INC., carrying on business as GRECO LEAN AND FIT, TONY GRECO carrying on business as GRECO LEAN AND FIT, WILLIAM ANDERSON and MATT JOSE and CODY WAITE, 2155199 ONTARIO INC., 2089880 ONTARIO INC. and 2317495 ONTARIO INC., carrying on business as GRECO LEAN AND FIT, GRECO LEAN + FIT, and SHENKMAN CORPORATION, Defendants
BEFORE: The Honourable Justice R. Pelletier
COUNSEL: David Cutler, lawyer for the Plaintiffs
Pasquale Santini, lawyer for Defendants
HEARD: Written submissions
ENDORSEMENT ON COSTS
[1] The Plaintiff succeeded in obtaining leave to amend her pleadings in a Rule 26 motion. The motion was opposed by the Defendants on 5 grounds: that the proposed fresh statement of claim contained evidence rather than pleadings of fact, that leave to amend would vitiate earlier admissions, that the causes of action pleaded were not tenable, that the proposed statement of claim was statute barred by prescription and that the timing of the motion to amend the pleadings amounted to an abuse of process. The Plaintiff was successful in rebutting those submissions and is presumptively entitled to recover a portion of her costs.
[2] The Defendants submit that the present costs ordered must be reduced as a result of efforts expended in preparing an anticipated motion for summary judgment in relation to pleadings as they existed prior to the present motion. In the Defendants’ view, those efforts represent costs thrown away in light of the new pleadings authorized by the present motion.
[3] I am not inclined to so discount the cost order for the following reasons. Consideration of the costs purportedly thrown away presumes that the motion would have succeeded. Had the anticipated summary judgment motion been presented unsuccessfully, costs would have been presumptively due to the Plaintiff. In addition, a certain portion of the effort expended in preparing the anticipated summary judgment motion remains practical in the event that a modified summary judgment motion is brought, which the Court in the present proceeding considered in ruling upon the motion to amend the pleadings.
[4] In the result, I would not be inclined to consider cost considerations relating to a proceeding which may not be brought, and may or may not have succeeded as originally contemplated. I would find however that costs relating to any summary judgment motion, if brought, can take into consideration the costs associated with the motion originally contemplated, and in any event in the final disposition if the Court is required to deal with costs generally.
[5] That said, the Defendants have been put through additional effort and expense through no fault of their own. The motion to amend the pleadings was significant as it somewhat varied the course of this litigation. Though rejected in the final analysis, the objections raised by the Defendants were not meritless.
[6] I would not find that the Defendants’ conduct was inappropriate, notwithstanding certain issues raised by the Plaintiff in her cost submissions, such as a factum of excessive length and insufficient specificity.
[7] I have concluded that a fair and proportionate indemnification to the Plaintiff in relation to the motion successfully presented on a partial recovery basis is $14,212.82, inclusive.
The Honourable Justice R. Pelletier
Date: November 28, 2016
COURT FILE NO.: 13-58138 (Ottawa)
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Julie Michelle Scharf, Michelle Hancock and Keith Hancock, Plaintiffs
and –
Ottawa Athletic Club Inc., LEGENDS MARTIAL ARTS INC., carrying on business as GRECO LEAN AND FIT, TONY GRECO carrying on business as GRECO LEAN AND FIT, WILLIAM ANDERSON and MATT JOSE and CODY WAITE, 2155199 ONTARIO INC., 2089880 ONTARIO INC. and 2317495 ONTARIO INC., carrying on business as GRECO LEAN AND FIT, GRECO LEAN + FIT, and SHENKMAN CORPORATION, Defendants
BEFORE: The Honourable Justice R. Pelletier
COST ENDORSEMENT
Pelletier, J.
Released: November 28, 2016