Court File and Parties
COURT FILE NO.: 334/11 DATE: 2018 12 06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IAN FERGUSON, Plaintiff AND: THE CORPORATION OF THE REGIONAL MUNICIPALITY OF HALTON, MERVYN F. WHITE AND CARTERS PROFSSIONAL CORPORATION, Defendants
BEFORE: Petersen J.
COUNSEL: B. Pickard, Lawyers for the Lawyer for the Plaintiff M. Smitiuch, Lawyers for the Plaintiff I. Dick, Lawyers for the Defendant, Corporation of the Regional Municipality of Halton J. Campbell, Lawyers for the Defendants, Mervyn F. White and Carters P.C.
COSTS ENDORSEMENT
Overview
[1] This Endorsement deals with costs arising out of two Summary Judgment motions that were heard on April 17 and 18, 2018. Both motions were brought by Defendants seeking to have the claims against them dismissed.
[2] The facts giving rise to the litigation, the positions of the parties and the issues raised in the Summary Judgment motions are all summarized in my Reasons for Judgment dated September 26, 2018.
[3] I denied Halton’s motion to have all claims against it dismissed. In doing so, I rejected all of Halton’s arguments. I found that the termination of the Plaintiff’s employment did not deprive him of eligibility for LTD benefits. I held that he was entitled to relief from forfeiture of the benefits that would otherwise result from the late filing of his application. I found that the one-year limitation period in Halton’s LTD Plan was not enforceable against the Plaintiff and that the two-year statutory limitation period had not expired prior to the commencement of the action. The Plaintiff was entirely successful in the Summary Judgment motion brought by Halton.
[4] Had Halton’s motion succeeded, the Defendants Mervyn White and Carters PC would have been exposed to potential liability for damages allegedly suffered by the Plaintiff. They were retained to represent him during the time when the LTD application deadline passed and when Halton argued that the limitation period had expired. They therefore supported the Plaintiff in responding to Halton’s motion.
[5] Mr. White and Carters PC also brought their own Summary Judgment motion. They argued that, if the court found that the Plaintiff’s action against Halton was statute-barred, the limitation period expired after their retainer was terminated. On this one issue, they were adverse in interest to the Plaintiff and shared a common interest with Halton. However, the bulk of Mr. White’s evidence and the main thrust of his and Carter PC’s submissions were directed against the relief sought by Halton.
[6] I granted Mr. White and Carters PC a declaration that the limitation period for the Plaintiff’s claims against Halton did not expire during the period of time that they were retained by the Plaintiff. This declaratory relief was against the Plaintiff only insofar as the Plaintiff argued, in the alternative, that Mr. White and Carters PC were responsible for any delay or missed limitation period. I did not grant Mr. White and Carters PC’s request to have all claims and counterclaims against them dismissed.
[7] I specifically noted that my reasons should not be taken to be a finding on the merits of the Plaintiff’s LTD claim, whether Halton breached its employer’s duty of good faith, whether the Insurance Act applies to Halton’s self-funded LTD Plan, or whether Mr. White and Carters PC had satisfied their professional obligations in their representation of the Plaintiff.
[8] I invited the parties to make written submissions with respect to costs of these motions. I have received and reviewed those submissions, namely: Mr. White and Carters PC’s submissions dated October 30, 2018, the Plaintiff’s submissions dated October 31, 2018, Halton’s submissions dated November 21, 2018, and Mr. White and Carters PC’s reply submissions dated November 23, 2018.
Parties’ Positions on Costs
[9] The Plaintiff seeks an order for costs against the Defendants in the amount of $7,373 (on a partial indemnity basis). None of the Defendants take issue with the quantum sought.
[10] Mr. White and Carters PC seek an order for costs against Halton in the amount of $30,000 (on a partial indemnity basis). They ask for a Bullock order -- where an unsuccessful defendant is required to pay the costs of a successful defendant -- based on the principles set out in Moore v. Wienecke, 2008 ONCA 162.
[11] In the alternative, Mr. White and Carters PC submit that the Plaintiff should pay their costs. They argue that they were successful in obtaining a declaration that for all practical purposes ends the litigation against them.
[12] The Plaintiff argues that he was successful in having both Summary Judgment motions dismissed and therefore ought not to pay any costs. In the alternative, he submits that the amount of costs sought by Mr. White and Carters PC is excessive and could not reasonable have been within his expectation.
[13] Halton does not dispute the quantum of Mr. White and Carters PC’s costs. It takes the position that the costs of both Summary Judgment motions should be fixed in the amounts sought, but should be payable in the cause. Halton argues that it would be premature to order costs at this stage because the motions were reasonably brought; the motions substantially shortened the trial; the Plaintiff’s claims have yet to be determined on their merits; and the Defendants’ respective liability (if any) has yet to be decided.
Decision on Costs
[14] The amounts of costs sought by the Plaintiff and by Mr. White and Carters PC are reasonable, given the nature, complexity and importance of the issues raised in the Summary Judgment motions: Rule 57.01 of the Rules of Civil Procedure.
[15] In my view, the Plaintiff was entirely successful in defending both motions and therefore is entitled to his costs associated with the motions, regardless of the outcome at trial.
[16] Halton could have defended the action simply on the merits of the Plaintiff’s LTD claim, but it chose instead to plead limitation period issues and other threshold issues. It also chose to bring a pre-trial motion to have the action dismissed on a summary judgment basis. The motion was not frivolous but neither was it successful. Even if the Plaintiff’s action against Halton is ultimately dismissed, he is entitled to his costs of the motion that he successfully defended.
[17] Although Mr. White and Carters PC’s motion was not adverse in interest to Halton, Halton’s motion was certainly adverse in interest to Mr. White and Carters PC. Consequently, the bulk of Mr. White’s evidence and his and Carter PC’s submissions in the summary judgment proceeding were directed against the relief sought by Halton. They were successful in that regard. They also succeeded in obtaining declaratory relief in their own motion.
[18] The declaratory relief was contrary to Halton’s interest. It was not really contrary to the Plaintiff’s interest because the Plaintiff’s primary position was that his action against Halton is not barred. I denied Mr. White and Carters PC’s other remedial relief as against the Plaintiff. In these circumstances, it would be unfair to require the Plaintiff to pay their costs.
[19] The decision of the Ontario Court of Appeal in Moore (at paras.41-50) provides a two-step framework for analyzing the appropriateness of making a Bullock order, which would require Halton to pay Mr. White and Carter PC’s costs. First, I must determine whether it was reasonable for the Defendants to be joined in the same action. If the answer to that question is yes, then I must decide whether it would be just in the circumstances for the unsuccessful Defendant (Halton) to be required to bear the successful defendants’ (Mr. White and Carters PC’s) costs. The exercise of my discretion in reaching the latter decision must take all relevant factors into consideration, including: whether the Defendants tried to shift responsibility onto each other; whether the unsuccessful Defendant caused the successful Defendant to be added as a party; whether the two causes of action were independent of each other; and the parties’ abilities to pay.
[20] In my view, it was reasonable for the Plaintiff to join the action against Halton with the action against Mr. White and Carters PC. The Plaintiff’s claims in the two actions are factually intertwined. Halton’s pleadings raise issues that overlap with the issues raised by the Plaintiff’s claims against Mr. White and Carters PC. For these reasons, it makes good sense to have the two actions tried together. It was also reasonable to have the two Summary Judgment motions heard together, given the overlapping facts and issues.
[21] For the reasons that follow, I find that it is just in the circumstances for Halton to bear most of the costs incurred by Mr. White and Carters PC in the Summary Judgment proceeding.
[22] First, Mr. White and Carters PC’s interests were, for the most part, aligned with the Plaintiff against Halton. This is because Halton’s motion effectively tried to shift responsibility for the Plaintiff’s alleged damages to Mr. White and Carters PC.
[23] Second, Halton’s pleadings on the limitation period and other threshold issues is what led the Plaintiff to pursue an action against Mr. White and Carters PC. Halton’s motion is also what prompted Mr. White and Carters PC to file their companion motion.
[24] Halton submits that there was nothing compelling Mr. White and Carters PC to bring their motion. This is true, just as there was nothing compelling Halton to bring its motion. However, the issues raised by Halton’s motion implicated Mr. White and Carters PC. This prompted Mr. White and Carters PC to bring their own motion, which raised intersecting issues. The issues raised by the motions were not independent of each other. Moreover, the underlying actions against Halton and against Mr. White and Carters PC are not independent.
[25] In my view, ability to pay is not a particularly compelling factor, but I note that Halton almost certainly has a greater ability to pay costs than the Plaintiff, who has been unemployed for some time without LTD benefits.
[26] All of the above factors favour the exercise of my discretion in making a Bullock order. I conclude that it is just, in the circumstance of this case, to order Halton to pay the majority of Mr. White and Carters PC’s costs. A portion of their costs relates to their motion, which was not against Halton, so it would not be just to require Halton to pay all of their costs.
[27] I therefore make the following orders:
a) Halton is ordered to pay the Plaintiff’s costs in the amount of $7,373, all-inclusive. b) Halton is ordered to pay a portion of Mr. White and Carters PC’s costs in the amount of $24,000, all-inclusive. c) Mr. White and Carter PC’s remaining costs are fixed in the amount of $6,000 and will be payable in the cause.