CITATION: Mackenzie v. 1785863 Ontario LTD., 2017 ONSC 5558
COURT FILE NO.: CV-16-0351-SR
DATE: 2017-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GRAHAM MACKENZIE
Plaintiff
- and -
1785863 ONTARIO LTD. operating as ALEX WILSON COLDSTREAM LTD.
Defendant
W. Mouck, for the Plaintiff
R. Becker, for the Defendant
HEARD: September 14, 2017, at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Reasons On Motion For Costs
[1] In December 2016, the plaintiff brought a motion to compel the defendant to deliver a sworn affidavit of documents and the productions listed therein. The plaintiff abandoned the motion after the defendant delivered its responding motion material and its affidavit of documents and productions. The defendant now brings a motion for an order for costs in respect of the abandoned motion. The defendant requests substantial indemnity costs of $3000 or, in the alternative, partial indemnity costs of $2000.
[2] On August 4, 2016, the plaintiff commenced an action against the defendant under the simplified procedure provided in Rule 76 of the Rules of Civil Procedure.
[3] The defendant served a statement of defence on September 23, 2016. Pleadings were closed on October 20, 2016, following delivery of the plaintiff’s reply.
[4] Pursuant to rule 76.03(1), the affidavits of documents of the parties, and their productions, were to be served within 10 days after the close of pleadings.
[5] On November 4, 2016, the plaintiff served the defendant with an unsworn affidavit of documents and copies of the plaintiff’s productions, but did not serve a list of potential witnesses. In his covering letter, plaintiff’s counsel inquired as to when he could expect to receive the defendant’s affidavit of documents.
[6] Counsel exchanged e-mails and agreed to speak on November 16, 2016. (I point out that counsel who argued this motion, Mr. Mouck and Mr. Becker, were not the plaintiff’s counsel and the defendant’s counsel to whom reference is made in these reasons). Counsel for the defendant deposes that he made an offer to settle in his discussions on November 16, 2016 with counsel for the plaintiff and that counsel for the plaintiff advised him that he would pass the offer on to the plaintiff and have a response during the following week of November 21, 2016 when they would discuss matters further. Counsel for the defendant deposes that he advised counsel for the plaintiff at that time that he would be out of the country on vacation from December 1 to December 13, 2016.
[7] An affidavit of service was filed on behalf of the plaintiff deposing that on November 23, 2016, the office of counsel for the plaintiff served the defendant by mail with the plaintiff’s sworn affidavit of documents and list of potential witnesses. Counsel for the defendant deposes that he was not served with a sworn affidavit of documents and list of potential witnesses at that time.
[8] On December 2, 2016, counsel for the defendant left for holidays in Jamaica.
[9] On December 5, 2016, counsel for the plaintiff e-mailed counsel for the defendant with a written counter-offer to settle. He wrote that he required the defendant’s affidavit of documents and list of potential witnesses no later than December 16, 2016, failing which he had been instructed to bring a motion to compel production.
[10] On receiving the December 5, 2016 e-mail in Jamaica, counsel for the defendant e-mailed back that same day, confirming that he was in Jamaica until December 13, 2016, that he had been awaiting a response to his client’s offer and that he would have to travel to Dryden from his home in Peterborough to gather certain of the defendant’s documents. He wrote that he would respond further when he was back in the office in mid-December to move the matter along.
[11] At noon on December 16, 2016, the plaintiff served a motion for an order to compel the defendant to produce its affidavit of documents and productions. The motion was returnable December 22, 2016.
[12] On the afternoon of December 16, 2016, counsel for the defendant sent counsel for the plaintiff a faxed letter, enclosing the defendant’s unsworn affidavit of documents, with a list of witnesses. He wrote that the plaintiff was not in compliance with the Rules because the plaintiff had not served a sworn affidavit of documents. (This is disputed by the plaintiff who relies on the affidavit of service deposing that a sworn affidavit of documents was served on November 23, 2016). He advised that the defendant’s productions were at the printers for copying and would be ready by the weekend. He requested that the plaintiff withdraw his motion. He advised that if he had to respond to the motion, he would seek costs against the plaintiff.
[13] On December 20, 2016, counsel for the plaintiff responded to the letter of December 16, 2016 from counsel for the defendant. He said that the defendant had failed to comply with rule 76.03(1) because the defendant’s affidavit of documents was unsworn, copies of productions had not been enclosed and addresses of witnesses had not been provided. He said that the plaintiff’s sworn affidavit of documents had in fact been served on November 23, 2016.
[14] On December 20, 2016, counsel for the defendant mailed the defendant’s sworn affidavit of documents, together with copies of the defendant’s productions.
[15] On December 21, 2016, counsel for the defendant faxed an affidavit responding to the plaintiff’s motion for production. He also faxed a notice of motion requesting costs of the plaintiff’s motion.
[16] On December 21, 2016, counsel for the plaintiff acknowledged receipt of the defendant’s motion material. He stated:
Considering the purpose of the motion was to get a timeline for when my client could receive its production, and considering your client’s motion response form confirms the productions will be received this Friday (December 23rd), I propose we adjourn the motion to January 12, 2107. Assuming the materials are received, my client will withdraw the motion.
[17] On December 28, 2016, counsel for the plaintiff e-mailed counsel for the defendant to confirm that he had received the defendant’s sworn affidavit of documents and productions. He stated, “Under the circumstances, my client will take steps to withdraw the motion.” He suggested that the motion be withdrawn on a without costs basis.
[18] Counsel for the defendant did not respond. On January 6, 2017, the plaintiff served and filed a notice of abandonment of its motion.
[19] The defendant seeks its costs of the abandoned motion.
Discussion
[20] Rules 37.09(3) provides:
(3) Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.
[21] Rule 37.09(3) contemplates that the abandoning party shall forthwith pay costs to the responding party, unless the abandoning party can satisfy the court that a different costs order is appropriate. The rule is silent as to the scale of costs. Therefore costs are awarded on a partial indemnity scale unless the court orders otherwise. See Skycharter v. Eaton Corp., [2005] O.J. No. 308 (Master M. Kelly).
[22] The plaintiff was well within his rights to require the defendant to serve its affidavit of documents and copies of documents referred to in Schedule A of the affidavit. Rule 76.03(1) provides for service within 10 days of the close of proceedings. The deadline of December 16, 2016, which counsel for the plaintiff set for receipt of the defendant’s affidavit of documents and its productions, was approximately eight weeks after the close of pleadings. In itself, without more, there would be nothing unreasonable about that demand.
[23] However, the difficulty I have is that on December 5, 2016, when counsel for the plaintiff set the December 16, 2016 deadline, he knew that counsel for the defendant was on vacation in Jamaica and would not be returning to his office until December 13, 2016. He knew that counsel for the defendant was a sole practitioner.
[24] The motion to compel the defendant’s affidavit of documents was served on the day of the deadline. Although counsel for the defendant provided an unsworn affidavit of documents on December 16, 2016, and advised that he would have the defendant’s productions ready by the weekend of December 17-18, 2016, counsel for the plaintiff did not, at that time, agree to adjourn the motion and to waive responding motion material, pending receipt of the sworn affidavit of documents. It was only after counsel for the defendant had prepared responding motion material and served it on December 21, 2016, that counsel for the plaintiff proposed adjourning the motion to January 12, 2017, pending receipt of the defendant’s sworn affidavit of documents and productions.
[25] In my view, when the motion was set down for hearing on December 22, 2016, it should have been apparent that because counsel for the defendant had been on vacation in Jamaica when the December 16, 2016 deadline had been set, it was unlikely that he would be able to comply with the deadline, even with best efforts. It would have been reasonable to have accommodated the vacation schedule of counsel for the defendant with a brief extension of time to enable him to serve the defendant’s affidavit of documents and productions, before requiring him to prepare materials responding to the motion. I also note that the motion was returnable just before the Christmas holidays. There was no urgency that militated against a short adjournment.
[26] The plaintiff has not overcome the presumption under rule 37.09(3) that the abandoning party is liable for costs. However, the defendant has not shown why costs should be awarded on a substantial indemnity scale. Apart from offers to settle under rule 49.10, where substantial indemnity costs are explicitly authorized, substantial indemnity costs are reserved for the rare and exceptional case where there has been reprehensible conduct or other special circumstances that justify costs on an elevated scale.
[27] The defendant has not provided a Bill of Costs or a Costs Outline. There is no information regarding Mr. Wilson’s hourly rates or how much time was docketed.
[28] The plaintiff has filed affidavit material which indicates, firstly, that after the motion was abandoned, counsel for the defendant failed to communicate with counsel for the plaintiff about a return date which he had unilaterally set for hearing the defendant’s motion for costs, and secondly, that he set another date for his motion which did not appear on the court’s motions’ list because it was faxed to the wrong court office. This ran up the plaintiff’s costs unnecessarily.
[29] In the circumstances, I am prepared to award only nominal costs of $500, payable by the plaintiff as the abandoning party. The costs of $500 shall, in accordance with the presumption in rule 37.09(3), be paid forthwith.
__“original signed by”
The Honourable Justice D. C. Shaw
Released: September 19, 2017
CITATION: Mackenzie v. 1785863 Ontario LTD., 2017 ONSC 5558
COURT FILE NO.: CV-16-0351-SR
DATE: 2017-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GRAHAM MACKENZIE
Plaintiff
- and -
1785863 ONTARIO LTD. operating as ALEX WILSON COLDSTREAM LTD.
Defendant
REASONS ON MOTION FOR COSTS
Shaw J.
Released: September 19, 2017
/sab