costs ENDORSEMENT

[1] The Defendants had brought a motion for summary judgment seeking the dismissal of the Plaintiff’s action wherein he sought damages in the amount of $900,000 for injuries he allegedly suffered in a fall at the Defendants’ business premises. The Defendants sought to argue that the evidence did not support the allegations made by the Plaintiff in his Statement of Claim.

[2] At the outset of the hearing of the motion, Plaintiff’s counsel sought leave pursuant to rule 39.02 to introduce an affidavit by the Plaintiff sworn June 22, 2017. By this time, Plaintiff’s counsel had examined two of the Defendants’ witnesses. He had not provided any earlier responding affidavit.

[3] I concluded that the Plaintiff had not complied with rule 39.02, but since the Plaintiff’s affidavit was clearly relevant, it should be allowed. I was satisfied that prejudice to the Defendants could be adequately compensated by an adjournment or an appropriate award of costs in the event that the Defendants decided to discontinue their motion. I remained seized of the matter and directed counsel for the Defendants to advise me within 10 days of which option they wished to pursue.

[4] The Defendants have now advised that they no longer wish to proceed with the motion and they now seek their costs of the motion payable on a substantial indemnity basis. Moreover, the Defendants request that the Court order that the affidavits they filed in support of the motion, as well as the transcripts of the cross examinations of those, be ruled inadmissible for the trial of this matter. They seek costs in the amount of $19,382.82 on a substantial indemnity basis, plus HST and disbursements of $326.45 which sum is inclusive of HST.

The Defendants’ Position

[5] The Defendants rely of the factors set out in rule 57.01(1). They note the amount in issue. They argue that Plaintiff’s counsel had been trying to avoid the motion from the outset. He took the position that the matter was being heard prematurely. He refused to schedule the cross-examinations or to provide responding materials. He then consented to a number of timetables to have these materials filed and for cross-examinations to take place, but he failed to meet any of the deadlines. This continued for almost 5 months.

[6] It was not until the final days before the motion that Plaintiff’s counsel sought to cross-examine the affiants. He still had not provided any responding materials.

[7] The Defendants say that there were increased correspondence and corresponding costs in their attempts to schedule these events. Cross-examinations were scheduled for April 5, 2017 on the basis that the Plaintiff would have his materials filed by then. They had to be cancelled when the Plaintiff did not provide his materials on time. By this time, the affiants no longer worked for the Defendants and their schedules had to be taken into account.

[8] At the outset of the motion, Plaintiff’s counsel claimed that he had served a Reply on the Defendants. The Defendants have no record of being served with a Reply. The court file was searched and there is no Reply or affidavit of service on file. The Defendants argue that if the Reply had been served, this would have changed their view of the matter and they may not have brought the motion at all.

[9] Finally, the Defendants point out that the Plaintiff refused to provide the responding materials despite being asked about them at least 10 times prior to the cross-examinations. Instead, he conducted cross-examinations and then served an affidavit contrary to rule 39.02(2). This increased costs substantially as a new affidavit and factums had to be drafted to outline the conduct the part of the Plaintiff.

[10] The Defendants add that the Plaintiff also served a cross-motion record at the last moment attempting to stay the proceedings based on the fact that undertakings remained outstanding and then decided not to pursue this motion when he acknowledged that the undertakings had been answered.

The Plaintiff’s Position

[11] The Plaintiff maintains that this action involved several disputed issues of fact and credibility which could not be appropriately addressed by motion for summary judgment.

[12] On June 7, 2017, Plaintiff’s counsel advised the Defendants of his appointment to be married on the very day of the motion, namely June 29 at 2:00 p.m. Although the Plaintiff finally delivered a sworn affidavit on June 22, 2017, he argues that it was manifestly unjust to have to swear an affidavit in the absence of important evidence that was exclusively controlled by the Defendants.

[13] While the Defendants provided some answers to undertakings on June 23 and 27, 2017, all answers were not completed until the evening of the motion’s return.

[14] The Plaintiff notes that he was granted leave to file his affidavit as requested. He argues that this Court should not make rulings with respect to the evidence to be heard at trial. He submits that each party shall bear their own costs of the motion. In the alternative, he argues that these should be on a partial indemnity scale, and that excessive time and rates are claimed by the Defendants. Finally, the Plaintiff submits that any costs order should be payable after trial.

In Reply

[15] In reply, the Defendants repeat that the source of the problem was the Statement of Claim. The Defendants believed that they could prove that the facts as alleged did not occur. There is no evidence that the Reply was served, and the first time the Defendants were made aware of its existence was at the hearing of the motion where it became apparent that the Plaintiff was contradicting his own Statement of Claim by alleging an alternative set of facts.

[16] Since the Plaintiff had not served any contradictory evidence or alternative facts prior to the cross-examinations of the affiants, the Defendants submit that they had no reasons to examine the Plaintiff.

[17] They emphasize that the seminal issue is the Plaintiff’s failure to deliver an affidavit until after cross-examinations. They say that this breach of the rules should be deterred.

[18] The Defendants note that the motion was adjourned to a date chosen by Plaintiff’s counsel. Given his failure to meet any timelines, they had no confidence the matter would ever be heard, and they refused any further request for an adjournment.

Conclusion

[19] The Defendants brought their motion for summary judgment on the basis that they could disprove the facts as alleged in the Statement of Claim. Those facts were materially changed in the Plaintiff’s Reply to the Statement of Defence. I am satisfied that the Reply was never served on the Defendants. Had it been served, the Defendants would have likely reconsidered their position and would not have proceeded with the motion. The case law provided by the Plaintiff is of no assistance in this particular case.

[20] Given these facts, and in the absence of any responding affidavit, the Defendants did not have to examine the Plaintiff. The Plaintiff cannot justify his refusal to provide the responding affidavit until after his discovery of the Defendants. He simply had to provide his version of the facts, as alleged in his Reply and raise a triable issue.

[21] Plaintiff’s counsel chose the June 29th date. There was ample time for the Plaintiff to conduct cross-examinations. He failed to abide by any agreed timetables. The Defendants cannot be faulted for refusing to agree to a further adjournment. It appears that Plaintiff’s counsel chose his wedding date after he chose the date for the motion; possibly convinced that the Court would grant his request for an adjournment or a stay of the motion. That was poor planning on his part. He did not disclose his wedding plans to the Court.

[22] The outcome of a motion for summary judgment is never certain notwithstanding the initial confidence of the moving party. In the absence of a Reply or responding affidavit, the Defendants’ continued pursuit of the motion in this case was justified. There was no reasonable excuse for the Plaintiff’s failure to provide a responding affidavit at the outset. Plaintiff’s counsel fails to appreciate the operation of Rule 20.02(2) and the need to provide an affidavit in response to motion for summary judgment and the significance of Rule 39.02(2). As I noted in my earlier endorsement, this type of litigation tactic should not be tolerated.

[23] I am satisfied that a costs award is the appropriate remedy in this case. I decline to rule that the affidavits filed by the Defendants in support of the motion as well as the transcripts of the cross-examinations be inadmissible at the trial. This is a matter for the trial judge.

[24] I have examined the Bill of Costs of the Defendants. While the Defendants would have had to produce a representative for examinations for discovery and engage in some preparation in any event, there would have been only one set of examinations and not two cross-examinations of the affiants. The timely service of a responding affidavit would have avoided a significant amount of time and effort on the part of the Defendants for preparing for these events and in preparing for and attending at the motion.

[25] I order that the cross-examinations of the affiants will stand in the place of examinations for discovery and that the Plaintiff shall not have any further right of discovery of the Defendants without leave.

[26] I am satisfied that an award of costs in the amount of $15,000 payable to the Defendants in any event of the cause is justified in the circumstances and is sufficient to compensate them for the prejudice they have suffered in this case.

Mr. Justice Robert N. Beaudoin

Date: September 11, 2017

CITATION: Ling v. Bemac Auto Body Ltd., 2017 ONSC 5321

COURT FILE NO.: 16-68818

DATE: 20170911

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: BRIAN LING, Plaintiff/Responding Party

-and-

BEMAC AUTO BODY LTD. and LAPERRIERE COLLISION LTD., Defendants/Moving Parties

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Charles Genest, for the Plaintiff/Responding Party

Mitch Kitagawa, for the Defendants/Moving Parties

costs ENDORSEMENT

Beaudoin J.

Released: September 11, 2017

Ling v. Bemac Auto Body Ltd., 2017 ONSC 5321

Case Summary

costs ENDORSEMENT

The Defendants’ Position

The Plaintiff’s Position

In Reply

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues