Court File and Parties

CITATION: Gordon v. Altus, 2017 ONSC 3470

COURT FILE NO.: CV-14-118317

DATE: 2017-06-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alan Gordon, Plaintiff

AND:

Altus Group Limited & Gary Yeoman, Defendants

BEFORE: Justice B.A. Glass

COUNSEL: Counsel, for the Plaintiff, Kevin MacDonald and Jamie Sanderson

Counsel, for the Defendants, Harold Levitt & Sunira Chaudhri

HEARD: June 1, 2017

ENDORSEMENT

Costs Ruling on Defence Motion for Introduction of Fresh Evidence As Abandoned

[1] This action was tried in May 2015 and a written decision was released in September 2015 after which the Defendants filed an appeal and the Plaintiff filed a cross-appeal to the Ontario Court of Appeal.

[2] When the appeal came ahead for argument in February 2017, the Defendants advanced a submission for the introduction of fresh evidence and the issue of fresh evidence was to be presented to me as the trial judge pursuant to Rule 59.06 of the Rules of Civil Procedure.

[3] The parties contemplated the Plaintiff conducting cross-examinations of the affiants of 2 affidavits for fresh evidence. The cross-examinations were to be conducted in late March or early April with transcripts being available in late April. The motion for fresh evidence was to be presented on May 25th.

[4] At one time, the Defence suggested the trial judge not hear the motion about fresh evidence. I directed that the motion would be heard by me as the trial as is contemplated by Rule 59.

[5] The cross-examinations of the affiants did not take place as anticipated because of a back injury sustained by one counsel for the Plaintiff.

[6] Counsel for the Plaintiff advised the Defence that they would not cross-examine the affiants but rather would argue the motion for fresh evidence on the written materials filed.

[7] On May 24th, the Defence advised counsel for the Plaintiff that they were abandoning the motion for fresh evidence.

[8] Counsel for the Plaintiff advised that they would attend on May 25th to argue costs for the abandoned motion.

[9] This hearing was adjourned from May 25th to June 1st.

Position of Plaintiff

[10] Substantial indemnity scale costs ought to be awarded to the Plaintiff because the Defendants advanced allegations of fraud for the motion to set aside the judgment and open the trial only to withdraw or abandon the motion. It is to be treated very seriously when fraud is alleged. The Defence having challenged the witness as a fraudulent and lying person at the trial and now to advance her recantation of her trial evidence as a lie is not to be taken lightly.

[11] Costs on a substantial indemnity basis are requested at $37,017.15 or on a mixture of partial and substantial indemnity scale at $$31,538.58 or on a partial indemnity scale at $25,870.16.

Position of the Defendants

[12] They did their best and had to take the witness as she was. The fact that she provided unsolicited information that she had lied at trial after being threatened by the Plaintiff placed them in a precarious position from which they should not be penalized with excessive costs.

[13] The costs requested by the Plaintiff are excessive and are so partly because the Plaintiff failed to complete the cross-examination of the affiants forthwith. That left the Defendants waiting for the Plaintiff’s reply materials.

[14] There ought not to be costs awarded or at best minimal costs.

Analysis

[15] I accept the position of the Plaintiff that a higher scale of costs is warranted because of the seriousness of alleging fraud in an attempt to open the action to further evidence when the primary witness was an acknowledged untruthful person at trial. Now, at this time the Defence abandons their motion for fresh evidence because the dishonest affiant withdraws from being untruthful in this motion.

[16] Even though one of the lawyers for the Plaintiff had illness such that it slowed up the advancement of cross-examination on the affiants’ affidavits, the motion was in process.

[17] Costs to the Plaintiff will be fixed at a substantial indemnity scale in the sum of $20,000 inclusive of HST plus disbursements of $3,576.16 inclusive of HST. This quantum reflects the seriousness of allegations of fraud and then the cancellation of such allegations when the motion was to be argued. Further, the quantum is less than advanced by the Plaintiff’s counsel and takes into account the loss of time for dealing with the fresh evidence motion because of the health problem experienced by the counsel who was to prepare the materials for the Plaintiff.

[18] Litigants in the position of the Defendants would be expected to anticipate costs of some significance for a motion for fresh evidence, especially if that motion were to be abandoned. There were explanations provided by counsel for receiving the information used in the fresh evidence affidavits. The information was volunteered to them from the dishonest witness who then withdrew from her statements. There could be little doubt that the Defendants would anticipate a vigorous response to the motion for fresh evidence based on the strong position taken by the Defence at trial regarding the honesty of the witness in question. The bottom line could only be that this motion was likely to cost one side of the litigation a considerable amount of money.

[19] There had been a settlement offer from the Plaintiff early in the process for the presentation of fresh evidence. That offer had been for the sum of $1,000 and the parties would stop that motion proceeding. The offer was not accepted by the Defendants.

Conclusion

[20] Costs on a substantial scale shall be awarded to the Plaintiff in the sum of $20,000 together with disbursements in the sum of $3,576.16 both inclusive of HST for this motion to advance fresh evidence and to re-open the trial.

Justice B.A. Glass

Date: June 5, 2017