SUPERIOR COURT OF JUSTICE – ONTARIO

CITATION: ADAMS-SIMMS v. KOWALSKI, 2017 ONSC 6163

COURT FILE NO.: CV-14-499012

MOTIONS HEARD: JULY 26, 2017

RE: Jody Adams-Simms d.b.a. JMASS Ventures, plaintiff

v.

Anna Jadwiga Kowalski, John F. Kowalski, 2006777 Ontario Limited and 360 Indoor Air Solutions Ltd., defendants

-and-

Al Shuman aka Al Marsh aka Al Shurer, third party

BEFORE: MASTER R. A. MUIR

COUNSEL: Doug Letto and David Mills for the defendants
Alnaz Jiwa for the plaintiff and third party

SUPPLEMENTARY REASONS FOR DECISION - COSTS

Master R. A. Muir -

[1] I heard two motions in this proceeding on July 26, 2017. I released my reasons for decision on August 4, 2017. I dismissed the plaintiff’s motion for an order granting her leave to issue certificates of pending litigation. I granted the defendants’ motion seeking an order for the release of certain funds being held in trust. I also requested the parties’ provide the court with written submissions with respect to costs and a discovery plan. I have now received and considered those submissions.

[2] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[3] Elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Clarington at paragraph 40.

[4] The defendants were largely successful on the matters argued on these motions and are entitled to costs. However, I see no basis for substantial indemnity costs. There is no evidence of reprehensible conduct on the part of the plaintiff.

[5] I also view the costs requested of approximately $26,000.00 as excessive for these motions. The applicable law was straightforward. The facts were moderately complex, especially with respect to the accounting. However, some of the work involved with the accounting issues will be useful for the litigation going forward. The time spent on cross-examinations was not entirely wasted as I have ordered below that the cross-examinations may be used as examinations for discovery for the purposes of trial. Although I view the costs as excessive, I have taken into account the fact that the plaintiff has not provided the court with a costs outline setting out the time her counsel devoted to these motions. The plaintiff has also suggested that she is impecunious. However, no evidence has been provided to support this argument.

[6] I have therefore concluded that it is fair and reasonable for the plaintiff to pay the defendants’ costs of these motions fixed in the amount of $15,000.00, inclusive of HST and disbursements. These costs shall be paid by November 15, 2017.

[7] It appears that the parties are agreeable to a discovery plan, save for two matters in dispute. The defendants ask for an order that the cross-examinations may be used as examinations for discovery for the purposes of trial. The plaintiff opposes this request. I agree with the defendants. I see no point in conducting further examinations in respect of matters already covered in the cross-examinations. Using the cross-examinations as discovery is in keeping with the principle of proportionality. I am therefore ordering that the cross-examinations may be used as examinations for discovery for the purposes of trial.

[8] The second issue concerns the recent bankruptcy of the defendant John F. Kowalski. The plaintiff may wish to bring a motion for an order for leave to amend her statement of claim and for leave to continue against Mr. Kowalski. I agree that the timetable should include a date by which these motions should be brought. It also appears that the plaintiff may need to retain a new lawyer as Mr. Jiwa plans to retire from the practice of law. I am not prepared to include a date for the plaintiff to retain a new lawyer. That is a matter between the plaintiff and Mr. Jiwa.

[9] The following timetable shall be applicable to this action:

(a) The plaintiff shall bring any motions for leave to amend and an order to continue by December 31, 2017;

(b) Any supplementary affidavits of documents shall be served within 60 days of the determination of the plaintiff’s motion to amend or by February 28, 2018, whichever is later;

(c) Examinations for discovery shall be completed by April 30, 2018;

(d) Undertakings shall be answered within 90 days of the completion of examinations for discovery;

(e) Discovery motions shall be brought within 120 days of the completion of examinations for discovery;

(f) Mediation shall take place by September 28, 2018;

(g) This action shall be set down for trial by November 30, 2018, failing which it shall be dismissed by the registrar.

October 16, 2017

Master R.A. Muir