Court File and Parties

COURT FILE NO.: 15-63611 DATE: 20181119 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SURANIKA DIAS Plaintiffs

– and –

CAPITAL SPORTS PROPERTIES INC., ARAMARK ENTERTAINMENT SERVICES (CANADA) INC., and JOHN DOE Defendants

Counsel: Patrick J. Poupore, for the Plaintiff Patrick Simon, for David Kealey Ginger Warner, for the Capital Sports Properties

HEARD: by written submissions

Decision on Costs

BEAUDOIN J.

[1] On October 29, 2018, I dismissed the Defendant Kealey’s motion to strike the Amended Statement of Claim and granted the Plaintiff’s motion to further amend the Amended Statement of Claim.

[2] The Plaintiff claims success on the motions and seeks costs inclusive of HST and disbursements in the amount of $9,296.77. Her counsel relies on the factors set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and notes that two separate sets of materials were required. He argues that the motions were unnecessary and adds that an offer to settle the motion on a without costs basis was made on September 12, 2018.

[3] The Defendant Kealey alleges that the Plaintiff had initially sought the Defendant’s consent only to amend the “John Doe” misnomer, but then sought to amend much more. He further argues that the Plaintiff admitted that motion was unnecessary and if that is so, it was step taken due to the Plaintiff’s mistake, or excessive caution. He cites Orkin in the “Law of Costs” that a pleading party will usually be charged the costs of a motion to amend.

[4] Plaintiff’s counsel took issue with some of the Defendant’s submissions which he believed questioned his integrity. He felt compelled to correct the record. I am satisfied that this was not the Defendant’s intent.

Conclusion

[5] The motion to plead the particulars of negligence was necessary given the Defendants’ refusal to consent to the amendment. While I concluded that the Amended Statement of Claim could have been pleaded more clearly, I was satisfied that it contained a factual matrix necessary to support a negligence claim against Mr. Kealey.

[6] In short, the Plaintiff was the successful party and her counsel offered to settle the motion on a without costs basis. This fact alone distinguishes this case from those cited by the Defendant Kealey. Both counsel have submitted comparable Costs Outlines. I accordingly order the Defendant Kealey to pay the Plaintiff’s costs which I fix in the all-inclusive amount of $7,500. These costs are payable within 30 days.

Mr. Justice Robert N. Beaudoin Released: November 19, 2018