CITATION: Siddiqui v. Thompson, 2017 ONSC 2048
COURT FILE NO.: DC-16-147-00
DATE: 2017 04 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MATTI SIDDIQUI - and - MARSHA THOMPSON
BEFORE: LEMAY J.
COUNSEL: Granville Cadogan, for the Plaintiff
Marc Whiteley, for the Defendants
HEARD: In writing
COSTS ENDORSEMENT
[1] The Plaintiff filed an appeal with the Divisional Court of the Order of Master Graham dated November 15th, 2016 setting aside the default judgment that the Plaintiff obtained. The Plaintiff took the position that Master Graham’s Order was a final Order. The Defendant disagreed, and told the Plaintiff that Master Graham’s Order was an interlocutory Order, and needed to be brought before a judge of the Superior Court.
[2] After a case management meeting on February 10th, 2017, I directed that a pair of motions be brought in this case. First, the Defendant was to bring a motion to quash the Plaintiff’s appeal. Second, in the event that the motion to quash was granted, the Plaintiff would need an extension of time to appeal to the Superior Court. As a result, I directed the Plaintiff to bring this motion so that we could address all issues at once.
[3] I heard both motions on March 2nd, 2017. I granted the motion to quash the appeal from the bench without calling on the Defendant’s counsel. I then dismissed the motion to extend the time limits to bring the appeal before the Superior Court in written reasons released the next day. Now, I must fix the costs of both motions.
Positions of the Parties
[4] The Defendant seeks full indemnity costs of the motion for quash on the basis that it was a totally unnecessary step in this proceeding and should not have been required. In addition, the Plaintiff had been warned on multiple occasions that the correct proceeding was for the appeal to proceed before a single judge of the Superior Court. In support of this position, the Defendant relies on Chalupnicek v. The Children’s Aid Society of Ottawa (2017 ONSC 1278).
[5] For the motion to extend the time limits, the Defendant seeks partial indemnity costs on the basis that the appeal was without merit, that it was important for the Defendant to resist the motion to extend the time for the appeal, and because the Plaintiff served an incomplete motion record in this case.
[6] The Plaintiff takes the position that no costs should be ordered in this case as it is difficult to determine who the wrongdoer in this case is, and who will win at trial. In addition, Plaintiff’s counsel states that awarding costs to the Defendant could bring the administration of justice into disrepute.
Analysis and Decision
[7] The analysis in this case, as in any costs case, starts with the factors listed in Rule 57.01. In this case, the most relevant factors are:
a) The outcome of the motions- who was successful.
b) The conduct of a party that tended to shorten or lengthen unnecessarily the duration of the proceeding.
c) Whether any party denied or refused to admit something that should have been admitted.
d) The amount that an unsuccessful party could reasonably be expected to pay.
The Motion to Quash
[8] In Chalupnicek, supra, Ray J. was faced with a case where the Plaintiffs had brought their appeal of a Master’s Order to a single judge of the Superior Court on the basis that the Order was interlocutory. The Master’s Order, however, was an Order dismissing the Plaintiffs’ action under Rule 2.1. It was clearly a final order, and clearly belonged in the Divisional Court. Ray J. ordered full indemnity costs and stated, at paragraph 10:
This motion was entirely unnecessary. Had the Plaintiffs wanted to seriously pursue this appeal, they had merely to acknowledge the Divisional Court was the proper forum. It is not the law concerning the appeal route that is questioned by the Plaintiffs, but that they are not bound by it. I am mindful that several judges have concluded that the merits of the Plaintiffs’ claim are devoid of merit. That question, however, is not before me, except to remind me that the appeal route they chose in their Notice of Appeal was equally devoid of merit. I see no reasons why these Defendants, in these circumstances, should have to subsidize the Plaintiffs’ decision to pursue an unmeritorious claim against them through an appeal route that is contrary to the express provisions of the Court of Justices Act to the point of opposing this Motion to Quash. This is one of those rare cases where the successful parties should be entitled to their costs on a full indemnity basis.
[9] In this case, the Plaintiff clearly should have brought their appeal before a single judge of the Superior Court, as nothing final was determined. In spite of being warned repeatedly by the Defendant that Master Graham’s Order was an interlocutory Order, the Plaintiff insisted on pursuing this appeal. I am of the view that Ray J.’s reasoning is equally applicable in this case.
[10] As a result, I am of the view that full indemnity costs should be paid by the Plaintiff to the Defendant for this motion. I turn to the amount claimed by the Plaintiff. I am of the view that the amount of $5,997.49 that is claimed is at the very top end of what an unsuccessful party would be expected to pay in this case. However, given that the Plaintiff needlessly pursued his position, I am of the view that this amount should be ordered.
The Motion to Extend the Time
[11] I start with the proposition that the successful party should be entitled to its costs. In this case, the Defendant was successful on the motion to extend the time limits for appealing. As a result, they should be entitled to some costs for this matter.
[12] This brings me to the question of what an unsuccessful party would expect to pay for this motion. In that regard, I note that these two motions are interrelated, and were heard together in less than an hour. I also note that there would clearly be efficiencies in preparing these motions as the two motions involved the same factual matrix.
[13] Given those observations, I view the $3,989.27 claimed by the Defendant as partial indemnity costs to be excessive, especially given that they have already been paid costs in the sum of nearly $6,000.00 for the first motion.
[14] In considering all of these factors, and the circumstances of this case, I find that a costs award in favour of the Defendant in the sum of $1,500.00 inclusive of HST and disbursements for the motion to extend time for appealing should be made.
Disposition
[15] The Plaintiff is to pay the Defendant the sum of $5,997.49 on account of the motion to quash and a further $1,500.00 on account of the motion to extend time limits. These amounts, which are inclusive of HST and disbursements, are to be paid by the Plaintiff to the Defendant within thirty (30) days of the release of this endorsement.
LeMay J.
DATE: April 4, 2017
CITATION: Siddiqui v. Thompson, 2017 ONSC 2048
COURT FILE NO.: DC-16-147-00
DATE: 2017 04 03
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MATTI SIDDIQUI - and - MARSHA THOMPSON
BEFORE: LEMAY J.
COUNSEL: Granville Cadogan, for the Plaintiff
Marc Whiteley, for the Defendants
HEARD: In writing
COSTS ENDORSEMENT
LeMay J.
DATE: April 4, 2017