Steinberg et al. v. Adderley, 2019 ONSC 1524

COURT FILE NO.: CV-13-0024-00

DATE: 2019-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RUDOLF STEINBERG, JAKOB STEINBERG, and AMANDA STEINBERG minors by their Litigation Guardian, RUDOLF STEINBERG

Gisèle C. Levesque and Allan S. Blott, Q.C., for the Plaintiffs

Plaintiffs

• and -

PAMELA ADDERLEY

Alex W. Demeo and Matthew R. Smiley, for the Defendant

Defendant

HEARD: Via Written Submissions

Madam Justice B. R. Warkentin, R.S.J.

Reasons on Costs

1These Reasons on Costs relate to two motions. The first was the Defendant’s motion to strike the Plaintiffs’ “Notice of Withdrawal of Jury Notice” and the second was the Plaintiffs’ cross-motion to strike the jury notice.

2On November 15, 2018 I granted the Defendant’s motion to strike the Notice of Withdrawal of Jury Notice and adjourned the cross-motion. Counsel for the Plaintiffs was uncertain if he intended to proceed with the cross-motion. I therefore ordered that if the Plaintiffs withdrew their cross-motion seeking to strike the jury notice prior to January 10, 2019 submissions on costs with respect to the motion and cross-motion should be provided to me in writing.

3At the Assignment Court on October 30, 2017, the trial of this action was scheduled to be held before a judge and jury commencing November 19, 2018 for two weeks. A Trial Management/Pre-Trial Conference was to be scheduled in September 2018. In early September 2018, the parties requested that instead of a Pre-Trial Conference, they sought to have a Case Conference. A Case Conference was then scheduled for September 14, 2018.

4On September 5, 2018 Counsel for the Plaintiffs served and filed a document they titled “Notice of Withdrawal of Jury Notice” purporting to convert the judge and jury trial to a trial by judge alone.

5At the Case Conference on September 14, 2018, on consent of the parties, the trial was removed from the trial sittings in November 2018 to be rescheduled at a later date. Counsel for the Defendant objected to the Notice of Withdrawal of Jury Notice on the basis that this was not a valid method by which to seek a judge alone trial. Counsel for the Defendant pointed to Rule 47.02 that sets out the specific circumstances in which a jury notice may be struck.

6Notwithstanding having been provided this information, Counsel for the Plaintiffs refused to withdraw their Notice. The Defendant was required, pursuant to the direction of the Case Conference judge to bring a motion seeking an order striking the Notice of Withdrawal of Jury Notice. Shortly before the return of that motion, Counsel for the Plaintiffs brought a cross-motion seeking to strike the jury notice.

7At a hearing before me on November 15, 2018 I granted the Defendant’s motion to strike the Notice of Withdrawal of Jury Notice. The Plaintiffs’ cross-motion to strike the jury notice was adjourned to January 10, 2019 to permit the defence to file responding material. A timeline for continuing this action was also ordered. On November 27, 2018 Counsel for the Plaintiffs served and filed a Notice of Abandonment of their cross-motion.

8As a result, the issue of costs on these motions was then directed to me.

Costs Submissions

9Counsel for the Defendant is seeking costs on a substantial indemnity basis inclusive of HST and disbursements of $8,350.00 for its motion to strike the Plaintiffs’ Notice of Withdrawal of Jury Notice and the sum of $2,717.00 for the Plaintiffs’ cross-motion to strike the jury notice for a total costs order of $11,067.00.

10The Defendant argued that these motions were entirely unnecessary and a waste of resources. Counsel for the Defendant submitted that it is important to send a clear message to litigants who engage in this type of conduct; conduct the Defendant called “reprehensible”. It was their position that this conduct should not be tolerated and that the innocent litigant should be compensated for all the unnecessary expenses in the litigation.

11Counsel for the Plaintiffs argued that costs of the Defendant’s motion should be fixed at $2,000.00. They did not make submissions on the Defendant’s costs claim for the abandoned cross-motion.

12It was the position of Counsel for the Plaintiffs that substantial indemnity costs are not warranted on the issues dealt with in the motions, but should be restricted to only certain limited circumstances as set out in Rule 57.01(1). Counsel for the Plaintiffs argued that the Defence motion was not complex and that it was quickly dealt with in court without the need for Defence submissions.

13Counsel for the Plaintiffs also submitted that the amount claimed by Counsel for the Defendant is excessive and includes time spent by the parties in the Case Conference in which other issues, such as the need for scheduling defence medicals, adjourning the trial and other matters were discussed. Counsel for the Plaintiffs also claimed that there is some duplication in the work that was conducted by senior and junior counsel for the Defendant.

14An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

15Rule 57.01 allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.

16The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (Ont CA) at para. 37).

17In their submissions, counsel for the Defendant suggested that substantial indemnity costs may be awarded where there is reprehensible conduct. They claimed that all the time spent by Defence Counsel in responding to the Notice of Withdrawal of Jury Notice and the cross-motion to strike the jury notice should be considered reprehensible conduct triggering an award of substantial indemnity costs.

18An award of substantial indemnity costs is ordered for the purpose of expressing the court’s disapproval of the parties’ conduct in the litigation. It should be ordered in only rare and exceptional cases. See Isaacs v MHG International Ltd., 1984 CanLII 1862 (ON CA), [1984] O.J. No. 3155, 45 O.R. (2d) 693 (Ont. C.A.).

19The Rules for striking a jury notice are clearly set out in Rule 47.02. The facts in this case do not fall within that Rule, therefore the Plaintiffs had no basis upon which to seek to strike the jury notice absent consent of the Defendant. Similarly, there is no such form as a Notice of Withdrawal of Jury Notice that the Plaintiffs’ Counsel served on Counsel for the Defence in a purported attempt to change the trial from judge and jury to judge alone when Defence Counsel failed or refused to consent to that change. This document appears to have been made up by Plaintiffs’ Counsel without consideration of the Rules governing jury notices and jury trials.

20Based upon these facts, the time expended dealing with the jury notice was entirely unnecessary and it is an appropriate set of facts in which the court should express its disapproval of a party’s conduct in the litigation by making an award of substantial indemnity costs.

21Notwithstanding my finding that substantial indemnity costs should be awarded, the reasonableness standard still applies to such an order, requiring that I review the Bill of Costs submitted before determining the quantum of the award. I agree with Counsel for the Plaintiffs that not all of the time included in the Defendant’s Costs Submissions should be compensable for these motions. These were not complex issues and some of the time included the preparation for and attending at the Case Conference. In addition, I agree that there appears to be some duplication of work, although that is somewhat difficult to ascertain from the way the Defendant’s Costs Outline has set out the time and work for the senior and junior counsel.

22Having considered the parties’ submissions and the Defendant’s Bill of Costs, I find that a reasonable award of costs on a substantial indemnity scale for the motion and cross-motion is $6,000.00 inclusive of HST and disbursements. The Plaintiffs shall therefore pay the Defendants $6,000.00 in costs.

Madam Justice B. R. Warkentin, R.S.J.