COURT FILE NO.: 17-4205-00SR
DATE: 2019-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathleen Jane Jolicoeur
Matthew T. Kelly, for the Plaintiff
Plaintiff
- and -
1154479 Ontario Inc., Bradley Smith, Mark Smith, and Dale Smith
J. Sebastian Winny, for the Defendants
Defendants
RULING ON COSTS
P. R. SWEENY J.
[1] On March 18, 2019, I released my decision on this motion allowing the plaintiff to amend her statement of claim. The parties were unable to agree on the issue of costs. I received costs submissions from the plaintiff and the defendants.
[2] The plaintiff claims her costs on a partial indemnity basis fixed in the amount of $2,409.62 on the basis that she was successful. The defendants say the plaintiff should pay their costs of the motion on the basis of an offer to settle which they made or alternatively, on the basis that a party seeking to amend a claim ought to pay the costs of the responding party in accordance with the Court of Appeal’s decision in Kings Gate Developments Inc. v. Colangelo, 1994 CanLII 416 (ON CA), [1994] 17 OR (3d) 841. They seek their costs on a substantial indemnity basis of $6,439.53, or on a partial indemnity basis of $4,315.13.
[3] With respect to the defendants’ offer to settle, the offer to settle would have allowed the defendants to plead the limitation period. The offer required the plaintiffs to pay costs of $3,000.00 plus additional costs associated with amending the pleadings. The plaintiff did substantially better than the offer of the defendants. There are no cost consequences which flow from the offer.
[4] With respect to the Kings Gate Developments Inc. case, I note that case involved a motion being brought to amend pleadings on the eve of trial after extensive discoveries and a pretrial conference despite the fact that counsel made a deliberate decision to plead only one defence to each action and had expressed that at the discoveries. The motion judge refused to allow the amendment. The Court of Appeal allowed the amendment but imposed a number of terms, including that the defendants pay the costs of the motion on a solicitor client basis.
[5] In that case, the Court of Appeal was concerned about the amendment at such a late date. The court held that “on such terms as are just” included the payment of the costs. The determination of “such terms as are just” is an exercise of discretion.
[6] In this case, the plaintiff moved to amend this claim brought under the simplified procedure not on the eve of trial but well in advance. I have provided an opportunity for further discoveries. In my view, the awarding of costs to the losing party on a motion to amend takes away any incentive to seek resolution. While it may be appropriate in some cases to award costs to the losing party, it is not in this case. In the normal course, a successful party is entitled to his or her costs. I see no reason to deviate from that general rule in this case.
[7] The plaintiff’s costs claimed for this motion are reasonable. The defendants shall pay to the plaintiff her costs of the motion fixed in the amount of $2,400.00 all-inclusive forthwith.
Sweeny J.
Released: March 27, 2019
COURT FILE NO.: 17-4205-00SR
DATE: 2019-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathleen Jane Jolicoeur
Plaintiff
- and -
1154479 Ontario Inc., Bradley Smith, Mark Smith, and Dale Smith
Defendants
RULING ON COSTS
PRS
Released: March 27, 2019