COURT FILE NO.: CV-17-61334 DATE: 2018-05-24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tod Webster and Shilo Smith, Plaintiffs
- and -
Inneractive Security Services Inc., 536357 Ontario Limited, 1320061 Ontario Inc., doing business as Guelph Concert Theatre a/o 1841984 Ontario Limited, Star Security Incorporated, and Todd Gottschalk, Defendants
COUNSEL:
- B. Virk, for the Plaintiffs
- A. Graham, for the Defendant Inneractive Security Services Inc.
- B. Clarke, for the Defendants 536357 Ontario Limited, 1320061 Ontario Inc., doing business as Guelph Concert Theatre a/o 1841984 Ontario Limited
- A. Wilkinson, for the Defendant Star Security Incorporated
- Todd Gottschalk, Self-Represented Defendant, Not Appearing
HEARD: May 8, 2018
REASONS FOR RULING ON INNERACTIVE’S MOTION FOR COSTS and ON PLAINTIFF’S MOTION TO FIX A SCHEDULE FOR DISCOVERIES
Turnbull J.
[1] There are two motions brought before the court. The first is for a consent order dismissing the plaintiff’s action against Inneractive Security Services Inc. (“Inneractive”). All parties consent to the order dismissing the action against Inneractive. Inneractive seeks its costs of the action from the plaintiffs.
[2] The plaintiffs have served a cross-motion seeking the following relief: a. No costs be ordered on Inneractive’s motion for summary judgment; b. In the alternative, costs be awarded as against the defendant Guelph Concert Theatre; and c. In the further alternative, costs be apportioned as against Guelph Concert Theatre, Star Security, and the plaintiffs.
[3] The second motion relates to the scheduling of examinations for discovery. As an additional remedy sought in their cross-motion, the plaintiffs seek an order compelling Guelph Concert Theatre and Star Security to attend examinations for discovery on July 3rd, 2018 and August 7th, 2018, respectively, failing which the plaintiffs may move without notice to strike their statements of defence.
Overview of the Case
[4] This action arises as a result of an alleged physical assault which occurred on or about November 21st, 2015 at the Guelph Concert Theatre located in Guelph, Ontario. The plaintiff, Tod Webster, alleges he was attending a Machine Head concert and was participating in the mosh pit when he was struck in the back of his head with an unidentified blunt object by an unidentified person.
[5] The plaintiff alleges in his pleadings that he has suffered a serious and permanent injury, including a head injury causing spinal cord edema, concussion, occipital laceration, and C5 spared quadriparesis, and numerous other related symptoms.
[6] In due course, Mr. Betts was appointed counsel for the defendant Guelph Concert Theatre. On December 1st, 2016, in response to a request by counsel for the plaintiff, Mr. Betts indicated that his client had contracted with either or both of Inneractive Security Services Inc. and Star Security, but at that point he was unable to confirm the exact arrangements.
[7] On January 5th, 2017, the plaintiff’s counsel issued a statement of claim naming 536357 Ontario Limited and 1320061 Ontario Inc. doing business as Guelph Concert Theatre a/o 1841984 Ontario Limited (“Guelph Concert Theatre”) as defendants. Pursuant to a request from plaintiff’s counsel, Mr. Betts wrote on January 30th, 2017 that there may have been a “lack of formal documentation”. He further stated:
I can tell you that the anticipated evidence from my client is that Inneractive and Star Security were retained on a contract to provide security services on the DOL. I guess it’s up to your client to decide whether to include them or not and run the risk of missing the target on my client.
[8] On February 17th, 2017, Mr. Betts provided counsel for the plaintiff a copy of an invoice from Star Security for the date of loss, but indicated he was still investigating whether the promoter of the concert had retained further security services from another business. On March 10th, Mr. Betts sent an email to counsel for the plaintiff stating that his client “has confirmed that the promoter did not retain additional security. As I currently understand it, my client was utilizing their own employed security and, additionally, had contracted Star Security as well as (on an individual basis) Todd Gottschalk”. He then suggested that counsel for the plaintiff amend the claim to add these parties so that everyone could move ahead with discoveries. On April 3rd, 2017, counsel for the plaintiff requested Mr. Betts to make specific inquiries to obtain copies of contracts from his client relating to security as she understood Mr. Betts may not be in possession of them, but those documents might be in the possession of his client.
[9] On April 21st, 2017, the plaintiff’s original action in this matter was discontinued and this action was commenced against the original defendants as well as Star Security Incorporated, Inneractive Security Services Inc., and Todd Gottschalk. Inneractive served a statement of defence and cross-claim in this action, which was dated July 12th, 2017. The defendants Guelph Concert Theatre also denied liability for the plaintiff’s damages in its statement of defence dated July 24th, 2017.
[10] The defendant Star Security also denied liability in its statement of defence and cross-claim dated November 9th, 2017.
[11] On October 31st, 2017, counsel for the defendant Inneractive wrote to counsel for the plaintiff asking whether there was any evidence that Inneractive was a proper party and to provide such information, failing which a summary judgment motion would be brought.
[12] On November 1st, 2017, Mr. Betts wrote that he:
“anticipates [his] client’s evidence will be that Star Security and/or Inneractive Security were retained to provide security services of [sic] the date of the alleged assault.”
[13] He continued, referring to Inneractive:
“Certainly one of your client’s employees, Todd Gottschalk, was working at the time. Given the nature of the allegations, your client is a proper party, I would think.”
[14] On November 3rd, 2017, Mr. Graham, counsel for Inneractive confirmed that Todd Gottschalk was not an employee of Inneractive on the date of loss. Mr. Betts responded by referring to statements made by each of Todd Gottschalk and Guelph Concert Theatre to the effect that Mr. Gottschalk was employed by Inneractive and asked for clarification. Counsel requested an extension of time to consider this issue during the month of December. Each were investigating the matter and seeking instructions from their clients.
[15] On December 9th, 2017, counsel for Star Security indicated he was not in a position to agree to a dismissal against Inneractive at that stage. On December 13th, 2017, Mr. Betts clearly stated that Star Security was the contracted security provider, that Inneractive was not on contract on the date of loss, and that although Todd Gottschalk was in attendance, Guelph Concert Theatre “does not believe that this was in an employment/contract capacity”.
[16] On January 10th, 2018, Ms. Virk faxed correspondence to all parties enclosing a draft consent to an order to dismiss the within action as against Inneractive Security Services Inc. At the time she sent that, no date for this motion had been confirmed and the motion record had not been served. The defendants did not respond to her email and refused to execute the consent, as it required an agreement that there was no error, act or omission on the part of Inneractive Security Services Inc. that caused or contributed to the loss.
[17] On January 15th, 2018, Mr. Graham, acting for Inneractive, responded to Ms. Virk by indicating that he had “already prepared his motion to dismiss and costs were now an issue”. Counsel for the plaintiff continued to seek productions from the defendants. On January 23rd, 2018, Ms. Virk indicated she had yet to receive productions from Mr. Betts on behalf of Guelph Concert Theatre and that these were required in order to provide the plaintiff’s position concerning the dismissal of the action against Inneractive.
[18] The plaintiff therefore canvassed dates for a motion to compel production of Guelph Concert Theatre’s affidavit of documents, at which point Guelph Concert Theatre agreed to provide its affidavit of documents by February 9th, 2018.
[19] On February 2nd, 2018, a copy of Guelph Concert Theatre’s draft affidavit of documents with Schedule A productions was finally received by counsel for the plaintiffs.
[20] On February 5th, 2018, counsel for the plaintiff received an email from the defendant Todd Gottschalk stating that on the date of the loss, he was at the Guelph Concert Theatre at the behest of a representative of Guelph Concert Theatre. It was shortly after the date of loss that he began working for a brief time for Inneractive, but he indicated he was not working for Inneractive at the time of the incident. He stated that he believed that it was Guelph Concert Theatre’s security and Star Security who were managing security for the event in question and Inneractive was not involved. In making those comments, Mr. Gottschalk was referring to his December 11th, 2015 incident report which was provided to the insurer for Guelph Concert Theatre but not produced to plaintiff’s counsel until February 2nd, 2018. On February 6th, 2018, Mr. Wilkinson, counsel for Star Security, wrote to other counsel in this matter expressing his ongoing concerns with respect to the issue of liability. On February 25th, 2018, Mr. Graham, on behalf of Inneractive, advised counsel that he would only be seeking costs exclusively as against the plaintiffs for this action.
Analysis
[21] On the evidence before this court, Ms. Virk, counsel for the plaintiffs circulated a draft consent to dismissal on January 10th, 2018. In that dismissal, she sought acknowledgment, not unreasonably, seeking an agreement that there was no error, act, or omission on the part of Inneractive that caused or contributed to the loss. Nobody replied to her correspondence. No one was prepared to give her the assurance she sought that later in the action there would not be an allegation by Star Security or Guelph Concert Theatre that some act of Inneractive caused or contributed to the plaintiff’s losses.
[22] In his able submissions, Mr. Graham stated that his client did not need to be involved in the action so early. He stated that his client could have been added pursuant to the “discoverability” rule if evidence of his client’s possible negligence became known to the plaintiff later in the action.
[23] While that argument is attractive, it does not stand up to closer scrutiny. Inneractive’s possible involvement in this matter was raised at an early stage and pursuant to the suggestion of counsel for Guelph Concert Theatre, Inneractive was quite properly added as a defendant in the action. Instead of consenting to the dismissal of the action, Inneractive’s counsel then brought this motion for summary judgment seeking costs of the action.
[24] Mr. Graham has submitted a bill of costs claiming $9,803.24 on a partial indemnity basis for fees, disbursements, and HST for the action.
[25] I have reviewed that and do not feel that those costs are warranted in light of the fact that a relatively short eight-page affidavit was filed in support of the notice of motion. The exhibits were essentially copies of the pleadings in the action, as well as some of the productions which had been provided to the plaintiff.
[26] I am reducing the costs, because in my view, the motion was premature. Pleadings had not yet been noted closed against the defendant Todd Gottschalk; documentary disclosure had not occurred, an extension was requested, and a consent with a draft order to dismiss against Inneractive was not responded to by any counsel, including counsel representing Inneractive
[27] I allow the partial indemnity fees of Inneractive in the amount $7,500.00, plus the taxable disbursements claimed of $997.59, the non-taxable disbursements in the amount of $104.00, HST on fees of $7,500.00, and HST payable on the disbursements allowed in this ruling.
[28] In the plaintiffs’ cross-motion, they sought an order that any costs awarded to Inneractive be apportioned equally between the defendants Guelph Concert Theatre and Star Security.
[29] Upon my review of the record, it is ordered that the costs of Inneractive ordered herein shall be paid by the plaintiff, Guelph Concerts and Star Security, equally. The delay in the plaintiff being able to dismiss this action against Inneractive was partially due to the delay of those defendants clarifying the fact that Inneractive was not responsible for security on the date of loss and that Todd Gottschalk was not employed by either of them on the date of loss. Furthermore, neither party replied to Ms. Virk’s request to execute the consent which would have removed the possibility that either party might point the finger of responsibility at Inneractive after the plaintiff let it out of the action.
[30] Counsel for Guelph Concert Theatre and Star Security also sought costs on this motion. This is based, presumably, on the cross-motion brought by the plaintiff that they be required to pay or contribute to any costs ordered to be paid by the plaintiff to Inneractive. In the circumstances, those costs requests are denied. It is clear from the record that Inneractive was not seeking costs from either Guelph Concert Theatre or Star Security on this motion or for the action.
Plaintiff’s Cross Motion:
[31] The second motion before the court is the Plaintiff’s cross motion. In that motion, counsel sought an order fixing dates for the compulsory attendance of representatives of the corporate defendants at discoveries.
[32] It is clear from the record that in October 2017, Ms. Virk’s office began canvassing dates for discovery with counsel for the defendants. Numerous email exchanges among the various law offices occurred and finally, on January 19, 2018 dates were finally agreed upon. Ms. Virk’s office then appropriately served Notices of Examination on January 19th, 2018. However, the affidavit of documents of the plaintiff Todd Webster was not served until February 16, 2018 which then invalidated the Notices of Examination.[^1] When dates could not be co-ordinated between counsel, with one counsel indicating that the discoveries may have to be delayed into March 2019 due to unavailability of counsel, Ms. Virk appropriately brought this motion to compel attendance at discoveries on the dates specified in her served Notices of Examination or on such dates as ordered by the court. She further insisted upon her right under Rule 31.04 (3) to complete her examinations of the remaining defendants before the plaintiff was examined.
[33] When the matter came before me, I directed counsel to get a schedule organized before we reached the matter on the morning motions list. They successfully did so.
[34] I see no reason however that the plaintiff should not be entitled to his costs of this second motion. The motion had to be brought to get the matter moving forward and the plaintiff should not alone bear the burden associated with it.
[35] I will accept a costs summary from Ms. Virk’s office for this portion of her attendance before this court on or before May 31, 2018. Counsel for the defendants may provide brief written replies on or before June 15, 2018.
Turnbull J.
Released: May 24, 2018
COURT FILE NO.: CV-17-61334 DATE: 2018-05-24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tod Webster and Shilo Smith, Plaintiffs
- and -
Inneractive Security Services Inc., 536357 Ontario Limited, 1320061 Ontario Inc., doing business as Guelph Concert Theatre a/o 1841984 Ontario Limited, Star Security Incorporated, and Todd Gottschalk, Defendants
REASONS FOR RULING
JRT:co
Released: May 24, 2018
[^1]: Rule 31.04(1).