CITATION: Cyr v. Calypso Parc Inc., 2017 ONSC 715
COURT FILE NO.: 12-54440
DATE: 2017/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANCINE CYR
Plaintiff
– and –
CALYPSO PARC INC. (ONTARIO CORPORATION NUMBER 1756128) carrying on business as CALYPSO PARK and CALYPSO WATERPARK and CALYPSO THEME WATERPARK and CALYPSO
Defendant
Richard Auger, counsel for the Plaintiff
Sally Gomery and Mark Gallagher, counsel for the Defendant
HEARD AT OTTAWA: In writing
REASONS ON COSTS
CORTHORN J.
[1] The defendant was successful on its appeal from the decision of Master Champagne (the “Master”) with respect to the plaintiff’s motion for (a) leave to amend her pleading, and (b) an order with respect to documentary discovery.[^1]
[2] The defendant seeks costs, on a partial indemnity basis, for the motion and the appeal in the total amount of $25,000. The defendant requests that costs be payable forthwith.
[3] For the reasons which follow, I find that the defendant is entitled to costs on partial indemnity basis in the total amount of $20,000 in any event of the cause. The costs shall be paid within 60 days of the decision at trial.
a) The Motion
[4] Following her success on the motion at first instance, the plaintiff sought her costs of the motion on a partial indemnity basis. The Master assessed the plaintiff’s costs, on a partial indemnity basis, at $5,500. In its submission before me, the defendant requests costs of the motion on a partial indemnity basis in the amount of $7,842.
[5] The defendant’s bill of costs for the motion includes fees with respect to a number of steps that are not specific to the motion. Costs with respect to those steps are, in my view, to be addressed as part of costs of the action. I therefore exclude fees related to the following steps:
- Receipt and review of the plaintiff’s motion record filed in support of the plaintiff’s request for an adjournment of the trial in order to permit the plaintiff to pursue the motion before the Master; and
- Preparing for and attending at the trial management conference at which the plaintiff’s motion for an adjournment of the trial was heard.
[6] The defendant’s bill of costs does not identify the fees associated with that aspect of counsel’s work. The total amount of the partial indemnity fees identified with respect to both that work and the motion before the Master is $6,800.
[7] I find that the majority of the $6,800 in fees is for work done in relation to the motion heard by the Master. If the fees are reduced by 25 to 30 percent, HST and disbursements are added to the remainder, the total is just either side of $5,500.
[8] In all of the circumstances it is reasonable to fix the defendant’s costs of the motion at $5,500 inclusive of fees, disbursements, and HST.
b) The Appeal
[9] The partial indemnity costs detailed in the defendant’s submissions total $19,535. Of that amount, $16, 416 is for fees and $893.84 is for disbursements (taxable and otherwise).
[10] The defendant characterizes as “somewhat novel” the primary issue on the pleadings motion – the ability of the plaintiff to plead similar facts arising subsequent to the date of the incident giving rise to the claim. I disagree with that characterization. In my view, the law with respect to the ability of the plaintiff to plead ‘post-incident’ similar facts was clear.
[11] On the appeal before me, the defendant referred in its factum to the decision of Master MacLeod (as he then was) in Toronto (City) v. MFP Financial Services Ltd. [^2]. In that decision, Master MacLeod reviewed in detail the law with respect to similar fact pleadings.
[12] In my endorsement, granting the defendant’s appeal, I referred to the decision of this Court in Woods v. Jackiewicz et al. [^3] In that decision, Murray J. succinctly stated the law with respect to claims based on negligence and similar fact allegations: “Subsequent negligence is irrelevant to the proof of prior negligence.”[^4]
[13] The defendant submits that a factor to be considered when assessing costs payable is the conduct of the plaintiff. In that regard, the defendant submits that the plaintiff has been ‘seeking’ media attention. The defendant relies on two online news reports from 2012, and takes the position that the plaintiff is attempting to litigate in the media.
[14] There is, in my view, no basis for a finding that the plaintiff is attempting to litigate in the media. There is no evidence that the plaintiff personally is the source of any of the contents of either online news reports.
[15] The plaintiff’s action was commenced several weeks prior to the date of the first online news report and several months prior to the second such report. Once issued, the statement of claim was a matter of public record. News agencies would have had access to the pleading.
[16] Based on my review of the two online news reports, I draw an inference and find that they are each based on the contents of the plaintiff’s statement of claim.
[17] The plaintiff sought leave to make extensive and detailed amendments to her pleading. Had the amendments been allowed to stand, they had the potential to paint the defendant as a ‘bad actor’ in the eyes of the jury. In addition, the amendments had the potential to be the subject of reports in the media with those reports having negative consequences to the defendant’s reputation and business. The significance to the defendant of the outcome of the appeal on the pleadings amendment motion is a factor I have considered in fixing the defendant’s costs on the appeal.
[18] The plaintiff submits that she was successful on the appeal with respect to the issue of leave to pursue the motion at first instance (i.e. rule 48.14 of the Rules of Civil Procedure). On the appeal, the failure of the Master to address rule 48.14 of the Rules of Civil Procedure was not argued strenuously by the defendant. The defendant’s focus was the substantive aspect of the plaintiff’s motion for leave to amend and the documentary disclosure sought. The outcome on the appeal of the Rule 48 issue is not a significant factor in my determination of the costs to which the defendant is entitled.
[19] The plaintiff highlights that the partial indemnity fees claimed by the defendant ($16,416) are slightly more than double those identified by the plaintiff ($6,896). The plaintiff submits that a reasonable amount for partial indemnity fees on behalf of the defendant is in the range of $7,500 to $10,000.
[20] The bill of costs for the defendant identifies that three lawyers (25 years, 10 years, and 4 years of experience) worked on the appeal. There is likely some overlap in the work done by the three individuals.
[21] For the reasons set out above, I assess the defendant’s partial indemnity fees on the appeal at $12,000. In total, the partial indemnity costs on the appeal are $14,500 (rounded figure). [^5]
c) Timing of Payment of Costs
[22] The defendant highlighted the significance of the outcome of the pleadings motion to its ability to defend the actions and to its business and reputation. This personal injury litigation is significant to the plaintiff. I do not fault the plaintiff for her decision, in the context of litigation strategy, to bring the motion for leave to amend her pleading. That said, the strategy was bold given my view of the law on the subject of similar fact pleadings.
[23] In addition, the motion contributed to the delay of the trial of the action by one year and five months. I understand that timing of testing to be carried out at the park by one of the experts involved in the matter was also a factor in the delay of the trial.
[24] However, given the potential amendments to the pleading, when the trial was adjourned and a new trial date was set, the trial was set for four weeks instead of two. The delay incurred by reason of the testing by one of the expert’s would not, on its own, have resulted in an increase from two to four weeks in the trial time. The delay in the trial was greater than it would otherwise have been specifically because of the potential amendments to the plaintiff’s pleading and the increased amount of time allowed for the trial.
[25] The general rule is for costs awarded on a contested motion to be paid within 30 days of the date of the order. I am satisfied that in this matter, it is just to deviate from the general rule. However, I do not deviate to the extent requested by the plaintiff who requests that costs awarded be payable in the cause.
[26] I balance the importance to the defendant of success on the appeal with the plaintiff’s litigation strategy (“bold”), by ordering that costs are payable on the conclusion of the litigation in any event of the cause.
Summary
[27] In summary, I order as follows:
The plaintiff shall pay to the defendant its costs of the motion and of the appeal on a partial indemnity basis in the amount of $20,000 inclusive of all fees, disbursements, and applicable taxes.
The costs shall be paid within 60 days of the decision at trial.
Madam Justice Sylvia Corthorn
Released: January 30, 2017
CITATION: Cyr v. Calypso Parc Inc., 2017 ONSC 715
COURT FILE NO.: 12-54440
DATE: 2017/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANCINE CYR
Plaintiff
– and –
CALYPSO PARC INC. (ONTARIO CORPORATION NUMBER 1756128) carrying on business as CALYPSO PARK and CALYPSO WATERPARK and CALYPSO THEME WATERPARK and CALYPSO
Defendant
REASONS ON COSTS
Madam Justice Sylvia Corthorn
Released: January 30, 2017
[^1]: Cyr v. Calypso Parc Inc., 2016 ONSC 7636.
[^2]: 2005 CarswellOnt 3324, [2005] O.T.C. 672.
[^3]: 2013 ONSC 519, at para. 13, 226 A.C.W.S. (3d) 377.
[^4]: Ibid, at para.
[^5]: $14,500 = $12,000 (fees) + $1,560 (HST on fees) + $893.84 (disb.) + $92.67 (HST on disb.).