COURT FILE NO.: CV-12-464488
MOTION HEARD: 2019 02 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bank of Montreal v. Newman & Sversky LLP
BEFORE: MASTER R. A. MUIR
COUNSEL: Alfred J. Esterbauer, counsel to the lawyers for the plaintiff Sandra E. Dawe for the defendant
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] On February 6, 2019 I heard a motion brought by the plaintiff for an order setting aside the order of the registrar dated April 17, 2018 dismissing this action for delay. I released my decision on February 7, 2019. I made an order setting aside the registrar’s dismissal order. I also requested written costs submissions. I have now received and considered those submissions.
[2] The plaintiff was the successful party on the motion and seeks its partial indemnity costs in the amount of approximately $10,000.00. The defendant takes the position that the plaintiff was afforded a significant indulgence. It argues that this is an appropriate case for costs to be awarded to the unsuccessful party. The defendant asks for approximately $15,000.00 in costs for the motion and another $20,000.00 for costs thrown away.
[3] I agree with the defendant that the plaintiff was given an indulgence by the court. The plaintiff failed to provide an adequate explanation for its delay in advancing this claim. However, I do not view the indulgence as being particularly significant in the circumstances of this action. The many authorities applicable to motions of this nature make it clear that prejudice is the key consideration. I made a finding that there was simply no evidence of prejudice to the defendant. The plaintiff also satisfied the other applicable factors and I found that the principle of finality was not a significant consideration. I also note that the plaintiff made several attempts to obtain the consent of the defendant to an order setting aside the dismissal but the defendant declined to provide such consent.
[4] However, the plaintiff did receive an indulgence from the court. In my view, it is sufficient in the circumstances of this motion if the price of that indulgence is to deprive the successful plaintiff of its costs. It is therefore fair and reasonable that there be no order for the costs of the motion.
[5] I am also not prepared to award the defendant any costs thrown away. The defendant did not provide any authority where costs thrown away have been awarded to an unsuccessful defendant on a motion to set aside an administrative dismissal order. The defendant relies on the decision of the Court of Appeal in Halton Community Credit Union Ltd. v. ICL Computers Canada, [1985] OJ No. 101 (CA). That case concerned a motion to set aside a default judgment after an undefended trial had taken place. The plaintiff in Halton Community Credit Union Ltd. also incurred costs related to the enforcement of its judgment. Those are obviously wasted steps when a default judgment is set aside. I see no similar costs thrown away here. The costs incurred by the defendant, apart from opposing the motion itself, are simply costs it is required to incur as part of its defence and preparation for trial in the ordinary course.
[6] I therefore order that there be no order for the costs of this motion or for costs thrown away.
Master R. A. Muir
DATE: 2019 03 18