CITATION: AUBE v. QUINNELL, 2017 ONSC 6640

COURT FILE NO.: CV-11-438619

MOTION HEARD: 2017 09 22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Afton Aube

v.

Samantha Quinnell, J-Brian Quinnell and Nissan Canada Inc.

BEFORE: MASTER R. A. MUIR

COUNSEL: Bronwyn M. Martin, agent for the lawyer for the plaintiff Caroline Mowat for defendants

SUPPLEMENTARY REASONS FOR DECISION - COSTS

[1] On September 22, 2017 I heard a motion brought by the plaintiff pursuant to Rule 37.14 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules") for an order setting aside the order of the registrar dated January 6, 2015 dismissing this action for delay.

[2] I released my reasons for decision on September 26, 2017. I made an order setting aside the dismissal order. I also requested costs submissions in writing. I have now received and considered those submissions.

[3] The defendants submit that this is one of those rare situations where an unsuccessful party should be awarded its costs. They seek $9,436.71 on a partial indemnity basis. The plaintiff is not seeking costs. She takes the position that there should be no order for the costs of this motion. Alternatively, the plaintiff argues that the costs requested are excessive for a motion of this nature.

[4] The usual practice of this court is to award costs to the successful party. However, the court retains a discretion to depart from that principle in proper and exceptional circumstances. See Rule 57.01(2) and Duca Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at paragraph 5.

[5] In my view, this is one of those rare cases. The defendants were initially prepared to not oppose an order setting aside the dismissal. However, the plaintiff's lawyer at the time failed to bring a motion within a reasonable time despite warnings from the defendants that their position may change. In fact, this motion was not brought until nearly twenty-eight months after the dismissal order was made.

[6] This motion had to be adjourned from its first return date due to certain deficiencies with the plaintiff's evidence. Most important of these deficiencies was a lack of evidence from the lawyer of record for the plaintiff during the period of delay.

[7] Under these circumstances, it is my view that the plaintiff has obtained a significant indulgence from the court. An exceptional costs order is warranted.

[8] I do agree with the plaintiff that the costs requested are somewhat excessive for a motion of this nature. The law is well settled. The facts were not complex. No cross-examinations took place. The defendants' lawyers devoted more than 60 hours of time to this motion. I view this amount of time as excessive.

[9] In my view, it is therefore fair and reasonable for the plaintiff to pay the defendants' costs of this motion fixed in the amount of $5,000.00, inclusive of HST and disbursements. These costs shall be paid by December 4, 2017.

Master R.A. Muir

DATE: 2017 11 03