Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 6718

CITATION: Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 6718

COURT FILE NO.: CV-12-466-00

DATE: 20171120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ESTATE TRUSTEES OF THE ESTATE OF CLIFFORD HOYLE, KATHRYN GREIG and MARGARET HOYLE

Plaintiffs

– and –

MELISSA GIBSON-HEATH, BEN HEATH, DC JAIN & SONS INC., ROBERT REGULAR and CANADIAN IMPERIAL BANK OF COMMERCE

Defendants

COUNSEL:

David M. Adams, for the plaintiffs

Sarah J. Clarke, for the defendants, DC Jain & Sons Inc. and Robert Regular

HEARD: in writing

mew j.

COSTS ENDORSEMENT

[1] The plaintiffs’ summary judgment motion against the defendants, DC Jain & Sons Inc. and Robert Regular, was unsuccessful for the reasons set out in my decision of 21 July 2017 (reported at 2017 ONSC 4481).

[2] In essence, I found that I could not be confident, on the evidentiary record presented, I could make a finding on whether the responding parties were vicariously liable for the fraudulent acts of their employee, Melissa Gibson-Heath.

[3] There were a number of contributing factors to my conclusion. One was that finding for the plaintiff on the vicarious liability issue would represent a significant development in the application of the law on vicarious liability. Other contributing factors were gaps in the evidence presented by both the plaintiff and the responding party: see my reasons for decision dated 21 July 2017 at paras. 46-50.

[4] I concluded my reasons by suggesting that it should be possible to sufficiently develop the evidentiary record, either through adducing additional oral evidence (rule 20.04(2.2)) or through a tailored trial conducted in the manner contemplated by rule 20.05. The parties have subsequently agreed that a tailored trial process would be the most appropriate way to move forward.

[5] The parties were invited to make written submissions on the issue of costs if they could not agree. I have now received those submissions. The responding parties seek their costs of the motion on a substantial indemnity basis. The plaintiffs submit that an order should be made reserving costs until the tailored trial process in this matter has been completed.

[6] I find myself in a similar position to my colleague Akbarali J. in 2383431 Ontario Inc. v. Rose of Sharon (Ontario) Retirement Community, 2017 ONSC 3372 where, at para. 9, she said:

The issues -- both the claims and defences -- raised in the motion remain live. The defendants successfully resisted summary judgment, but the plaintiff may yet obtain judgment. The work that has been done to date will reduce the costs of the trial. How much of the costs, if any, were thrown away on the motion will only be ascertainable after the trial is complete.

[7] The same reasoning applies to the costs issues raised by the parties on this motion. Accordingly, I would order that the costs of this motion (as it pertains to the summary judgment motion) be reserved to the trial judge.

[8] The plaintiffs also seek the costs of their motion for default judgment against Melissa Gibson-Heath on a substantial indemnity basis. The costs outline provided by the plaintiffs does not delineate between the motion for summary judgment and the motion for default judgment. Accordingly, while I would agree that this is an appropriate case for an award of substantial indemnity costs, based upon the fraudulent conduct of Ms. Gibson-Heath, a revised costs outline which reflects only the costs claimed in respect of the motion for default judgment against Ms. Gibson-Heath should be delivered to the court.

Mew J.

Released: 20 November 2017