Court File and Parties

COURT FILE NO.: CV-12-456073

MOTION HEARD: 2018 04 04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catalyst Services Ltd. v. Kevin McSwain, Antonella Cristante-Barnes, Daniela Cristante, Gabriela Cristante and GC Equipment Corp.

BEFORE: MASTER R. A. MUIR

COUNSEL: Matthew Morden for the plaintiff Krista Chaytor for the defendants

SUPPLEMENTARY REASONS FOR DECISION

[1] On April 4, 2018 I heard a motion brought by the plaintiff seeking an order setting aside the order of the registrar dated July 20, 2017, dismissing this action for delay. The plaintiff also sought an order for directions with respect to a discovery plan and the appropriate person to be examined on behalf of the plaintiff.

[2] I released my reasons for decision on April 16, 2018. I made an order setting aside the dismissal order. I also requested written submission on the issues of costs and the discovery plan. I have now received and considered those submissions.

[3] Each side seeks their costs. The plaintiff takes the position that it was the successful party and is entitled to costs in accordance with the court’s usual practice. The defendants argue that the plaintiff has received an indulgence and therefore the defendants should have their costs, even though they have been unsuccessful.

[4] I agree with the defendants that the plaintiff has received an indulgence. The plaintiff failed to explain certain periods of delay with the progress of this action. The defendants’ opposition to this motion was reasonable in view of this finding.

[5] However, I also found that the plaintiff had explained most of the delay and satisfied the other important factors, including the key consideration of prejudice. As well, the defendant was partially responsible for some of the delay between October 2016 and July 2017.

[6] For these reasons, it is fair and reasonable to deny the successful plaintiff its costs. For the same reasons, I do not see a basis for an award of costs in favour of the unsuccessful defendants. There will therefore be no order for the costs of this motion.

[7] The parties’ dispute over who should be examined on behalf of the plaintiff continues. The plaintiff proposes Ted Matthews, a current employee who appears to have informed himself of the matters in issue. The defendants’ previous choices of Marilee Jardine and Greg Broderick are no longer employed by the plaintiff. The defendants now seek to examine Ed Lowrie on the behalf of the plaintiff. Mr. Lowrie appears to have the same employer as Ted Matthews. He was apparently involved in the fraud investigation that forms the basis for this action.

[8] The Rules are clear. The examining party has the right to choose the representative employee of the opposite party it seeks to examine. Mr. Lowrie appears to have had some involvement with the matters in issue. Mr. Lowrie shall be produced as a discovery witness on behalf of the plaintiff.

[9] The parties agree that any of the defendants’ witnesses who have to travel from their home to the Greater Toronto Area to be examined shall be entitled to an attendance fee of $200.00 per day. The plaintiff takes the position that this fee should apply to the plaintiff’s witness as well. I agree with the plaintiff. The first witness proposed by the defendants lived in Alberta at the time her name was put forward. Any delay by the plaintiff had nothing to do with the requirement for the plaintiff’s witness to travel to the GTA to be examined.

[10] I therefore order as follows:

(a) there will be no order for the costs of this motion;

(b) Ed Lowrie will be examined on behalf of the plaintiff;

(c) the examination of Kevin McSwain will take place on June 13, 2018 in Toronto;

(d) the examinations of the other parties shall take place on July 11, 12 and 13, 2018 in Toronto; and,

(e) any witness who must travel from their home to the Greater Toronto Area to be examined shall be entitled to the payment of an attendance fee of $200.00 per day.

Master R.A. Muir

DATE: 2018 05 24