CITATION: Misasi v. 502046 Ontario Inc. et al. 2017 ONSC 6811
COURT FILE NO.: CV-15-0090
DATE: 2017-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THOMAS CHARLES MISASI
Robert E. Somerleigh, counsel for the Plaintiff
Plaintiff
- and -
502046 ONTARIO INC., carrying on business as CALL OF THE NORTH, JOSEPH ANTHONY BOSANAC and PAULA BOSANAC
Douglas Treilhard, counsel for the Defendants
Defendants
HEARD: Via Written Submissions
Mr. Justice W.D. Newton
Reasons On Motion For Security For Costs
Overview
[1] The original motion dealt with leave to amend the defence, late filing of a jury notice and security for costs (the plaintiff is a nonresident). The first two issues were decided (2017 ONSC 1170, leave to appeal denied – 2017 ONSC 3497). I found the material filed by both parties insufficient to decide the security for costs issue on the merits and I requested further written submissions. Those submissions were delivered but, unfortunately, the file did not make it back to me promptly. These are my reasons on the security for costs motion.
[2] With respect to the quantum of costs sought as security, the material filed by the defendants is still deficient. For costs incurred to date, one of the defendants has sworn an affidavit attaching the account for work done by prior counsel. No information is provided with respect to partial indemnity rates. Further, the defendant deposes that he has been “advised” to budget certain fees for trial at approximately $20,000 (approximately $12,000 on a partial indemnity basis). The source of that budget advice is not given contrary to Rule 39.01(4). The budget is based on five ten-hour trial days and the eight eight-hour days for preparation. No information is given about the number of witnesses or the anticipated evidence.
[3] The responding affidavit from counsel for the plaintiff notes that there will be four fact witnesses at trial and no expert evidence. Medical reports are to be filed. The endorsement following the pretrial conference indicated that the trial was to take 3 ½ days.
[4] This case involves a fall on a dock. Now a waiver defence is pleaded. The injury was a torn rotator cuff. No loss of income is claimed. This case is not factually or legally complex. On the material before me, 3 ½ days seems more than sufficient to deal with four fact witnesses and argument. Discoveries have been completed. According to the account from the defendants’ previous counsel, the discoveries were completed in two hours. Sixty-four hours claimed for preparation is beyond excessive for a case like this. The waiver issue will require the preparation of the factum. I conclude that 20 hours of preparation for trial would be an appropriate estimate for preparation and that 24 additional hours would be required for trial. The partial indemnity rate sought is $110 per hour and therefore I project trial costs at approximately $5,000.
[5] With respect to the costs of previous counsel, $6,000 was billed to the defendants on a full indemnity basis for pleadings, discovery of documents, affidavits of documents and the pretrial conference. This does not appear excessive. I project the partial indemnity rate for this work at approximately $3,700. The partial indemnity costs for the action if the defendants are successful on all issues is under $9,000. The defendants have raised the waiver issue and, if unsuccessful on this issue but successful on liability, the defendants’ cost award may be reduced.
[6] The plaintiff filed supplementary material which included an affidavit from Mr. Habjan, a graduate lawyer but not yet called, which addresses, as requested, the enforceability of an Ontario order for costs in Missouri, the state in which the plaintiff resides. The affidavit provides a summary of law and concludes that an Ontario judgment for costs is enforceable in Missouri.
[7] The plaintiff is a joint owner with his spouse of a home in Missouri. There is no mortgage against the property. His other assets including a bank account with approximately $16,000 on deposit. He has monthly pension income of approximately $3,700 as a result of his service with the Kansas City fire department.
The Law
[8] In 2311888 Ontario Inc. v. Ross, 2017 ONSC 1295, Henderson J. noted:
[17] In summary, the proper way to analyze a motion for security for costs is as follows:
(i) The initial onus is on the defendant to satisfy the court that it appears there is good reason to believe that the matter comes within one of the circumstances enumerated in Rule 56.01. See Hallum v. Canadian Memorial Chiropractic College (1989), 1989 CanLII 4354 (ON SC), 70 O.R. (2d) 119 at p. 123;
(ii) Once the first part of the test is satisfied, the onus is on the plaintiff to establish that an order for security for costs would be unjust. See Chachula at para. 10, and Uribe v. Sanchez (2006), 33 C.P.C. (6th) 94 at para. 4;
(iii) The plaintiff can meet the onus by demonstrating that:
(a) the plaintiff has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in the litigation;
(b) the plaintiff is impecunious and the plaintiff’s claim is not plainly devoid of merit (See Pitkeathly v. 1059288 Ontario Inc., [2004] O.J. No. 4125 at para. 10); or
(c) if the plaintiff cannot establish that it is impecunious, but the plaintiff does not have sufficient assets to meet a costs order, the plaintiff must satisfy the court that the plaintiff’s claim has a good chance of success on the merits. See Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, [2012] O.J. No. 3620 at paras. 41-46.
[9] Rule 56.01(1) provides that the court may make an order for security costs where the plaintiff is ordinarily resident outside of Ontario as is Mr. Misasi. As is set out above, the onus is then on Mr. Misasi to prove that he has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any cost award.
Analysis and Disposition
[10] I conclude that the plaintiff has sufficient assets in a reciprocating jurisdiction to satisfy any cost award for this action if he is unsuccessful. The partial indemnity costs of this action are projected at under $10,000. I am satisfied that the plaintiff’s assets in Missouri are sufficient to respond to a cost order and I am satisfied that an Ontario cost award can be enforced in Missouri.
Costs
[11] If the parties are unable to agree on the costs of this motion (amended pleadings, late filing of jury notice and security for costs) then the party seeking costs shall file its costs submissions, limited to two pages plus costs outline plus authorities, within 21 days from the release of these reasons. The responding party may file its costs submissions, subject to the same limits, within seven days thereafter. If submissions are not received within 21 days then costs will be deemed settled.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: November 15, 2017
CITATION: Misasi v. 502046 Ontario Inc. et al. 2017 ONSC 6811
COURT FILE NO.: CV-15-0090
DATE: 2017-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THOMAS CHARLES MISASI
Plaintiff
- and -
502046 ONTARIO INC., carrying on business as CALL OF THE NORTH, JOSEPH ANTHONY BOSANAC and PAULA BOSANAC
Defendants
________________________________________
REASONS ON MOTION FOR SECURITY FOR COSTS
Newton J.
Released: November 15, 2017
/sab