CITATION: Pullano v. Hinder, 2017 ONSC 5734
COURT FILE NO.: CV-15-121907-00
DATE: 20170927
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANTHONY PULLANO, Plaintiff
AND:
STEVEN HINDER and MAGNA INTERNATIONAL INC. and THE STRONACH GROUP, Defendants
BEFORE: Justice M.L. Edwards
COUNSEL: Harry Sarros, Counsel for the Plaintiff
Nicola Brankley, Counsel for the Defendants
HEARD: September 25, 2017
ENDORSEMENT
Overview
[1] I am case managing this matter. The Defendants had served a motion record which, in essence, was an undertakings and refusals motion that was to have been heard by Master Brott. The motion was adjourned for various reasons, to be heard by myself. Subsequent to the return date before Master Brott the Plaintiff served a cross-motion seeking various heads of relief, including leave to file a fresh as amended statement of claim.
The Defendants’ Motion
[2] The Defendants’ motion as it relates to outstanding undertakings and refusals was resolved between counsel. The only issue outstanding was the question of costs.
[3] In addition to the undertakings and refusals, the Defendants also sought an order directing the Plaintiff to pay outstanding costs awards totalling approximately $6,500 within seven days, failing which the Defendants could move to strike the Plaintiff’s statement of claim. The Defendants also sought an order directing the Plaintiff to comply with a court imposed timetable.
[4] As the undertakings and refusals have been resolved between counsel, it goes without saying that to the extent that a party has given an undertaking, that undertaking must be fulfilled. To the extent that the court is required to become involved and deal with outstanding undertakings and refusals, the party who has improperly failed to answer an undertaking and/or alternatively, has taken an improper position with respect to a refusal, can anticipate a costs award going against them. The courts of this province are replete with undertakings and refusals motions that, in my view, are completely unnecessary if counsel take an informed and reasoned approach to the position that they take on discovery. If counsel fail to properly inform themselves with respect to relevance, ultimately their clients will face a significant cost award. In this case, the Defendants seek costs against the Plaintiff in the amount of $9,800.
[5] As it relates to the relief sought by the Defendants seeking an order directing the Plaintiff to pay the outstanding costs awards totalling approximately $6,500, in my view no further order is required to compel the Plaintiff to pay those outstanding costs awards. A cost order is an order of this court and must be complied with. If the Plaintiff in this case does not pay the outstanding costs awards and comply with the outstanding court orders in that regard, he runs the risk of having his claim struck. I have no evidence before me with respect to the ability or inability of the Plaintiff to pay these costs awards. In the absence of compelling evidence demonstrating the Plaintiff’s financial inability to pay - which inability in my view should have been brought to the attention of the judge or master who made the costs awards, the orders must be complied with.
[6] As it relates to the issue of an order directing the Plaintiff to comply with a court imposed timetable, as a result of discussions with counsel in court it is agreed that counsel will work together towards formulating a revised timetable. If a consensus cannot be reached with respect to a further timetable I have advised counsel that they may contact my assistant for a case conference, at which time I will discuss the timetable proposed by the parties and impose the timetable that is most reasonable.
[7] This leaves then the question of the costs of the Defendants’ motion. In my view, the Defendants’ motion was a motion that the Defendants should not have been required to bring if the Plaintiff had dealt with the outstanding undertakings and refusals in a more timely fashion. That said, however, in my view the cost demands of the Defendants in the amount of approximately $9,800 is disproportionate to the nature of the relief claimed. In imposing a costs award, I am mindful that in fixing costs I should consider what the losing party could reasonable expect to pay. I was provided with no assistance from Plaintiff’s counsel with respect to the reasonable expectations of the Plaintiff, other than the suggestion that there should be no costs. As I have already indicated, the losing party on an undertakings and refusals motion must anticipate that there will be a costs award imposed if undertakings have not been dealt with in a timely fashion, and if refusals have been improperly taken on an examination for discovery or cross-examination. With these factors in mind I am ordering that the Plaintiff pay to the Defendants’ costs fixed in the amount of $3,500, which amount is inclusive of HST and disbursements, and which costs are payable within 30 days.
The Plaintiff’s Cross-Motion
[8] I will deal with the various headings of relief sought in the Plaintiff’s notice of motion sequentially:
The Plaintiff seeks an order allowing them to file a jury notice. Master Brott had imposed a timetable requiring the jury notice to be filed within 30 days of her order dated February 2, 2017. Despite the fact that the Plaintiff did not comply with what is essentially a routine administrative task of filing a jury notice, defence counsel does not object and, as such, I am ordering that the Plaintiff file a jury notice no later than October 31, 2017.
& 3. The Plaintiff seeks an order requiring Magna International to serve a further and better affidavit of documents and to produce for inspection all documents listed in Schedule B. The essence of this relief relates to what appears to be miscommunication concerning the existence of a complaint file. To the extent that a complaint file does exist, defence counsel takes the position that it would be subject to litigation privilege. If a complaint file does exist it should be listed in Schedule B. If the Plaintiff is of the view that litigation privilege has been improperly asserted, the Plaintiff may move to deal with that issue.
The Plaintiff seeks an order requiring Steven Hinder to answer questions that the Plaintiff asserts were improperly refused at his examination for discovery. Apart from the fact that this relief is outside the timetable ordered by Master Brott, Plaintiff’s counsel acknowledges that the questions that were refused would not be relevant as it relates to the statement of claim presently before the court, but may be relevant with respect to the proposed amended statement of claim. As such I am not ordering Mr. Hinder to attend to deal with those refusals, as in my view – given the concession of Plaintiff’s counsel, the refusal was properly taken at the time of Mr. Hinder’s discovery.
An order is sought requiring Deborah Berlach to answer questions that can only relate to the alleged bias of Master Brott. As Plaintiff’s counsel has now conceded - to the extent that any motion might be brought concerning the alleged bias of Master Brott, that motion must be heard by Master Brott and not by me. Given that I will be case managing this matter, the issue of the alleged bias only becomes relevant if any motion is referred to Master Brott. I am not ordering Ms. Berlach to answer the questions refused under cross-examination, as in my view there is no relevance at this point in time.
An order is sought striking certain paragraphs of Ms. Berlach’s affidavit. That relief was not pursued before me and no order is going to be made striking those paragraphs.
The Plaintiff seeks an order granting leave to deliver a fresh as amended statement of claim. Defence counsel objects to the proposed amended statement of claim as it contains pleadings of evidence. The Plaintiff also seeks to change in the proposed amended statement of claim, the location for the trial from Newmarket to Toronto. The Plaintiff also seeks to change the time when the alleged assault purportedly occurred from 6:30 p.m. to 7:00 p.m.
The Plaintiff is at liberty to deliver a fresh as amended statement of claim that conforms with the Rules. To the extent that the amended statement of claim does not conform with the Rules, the Plaintiff may face a further motion from the Defendants seeking to strike paragraphs that offend Rule 25.06. Plaintiff’s counsel is therefore encouraged to ensure that the proposed amended statement of claim, as redrafted, conforms with the Rules.
The Plaintiff seeks an order that Master Brott be recused from hearing or conducting any further step in this action. That motion should properly be brought before Master Brott.
[9] Both counsel agree that the successful party on the Plaintiff’s cross-motion would be entitled to costs in the amount of $2,000. In my view, the vast majority of the relief sought in the Plaintiff’s amended notice of cross-motion did not result in an order favourable to the Plaintiff. In am therefore ordering the Plaintiff to pay the Defendants costs of the cross-motion, which I am fixing in the amount of $1,500 inclusive of HST and disbursements, which costs again are payable within 30 days.
Justice M.L. Edwards
Date: September 27, 2017