Court File and Parties

BARRIE COURT FILE NO.: CV-16-1221 DATE: 20190402 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alan Stephenson, Plaintiff AND: Wei Bo Cheng and The Corporation of the City of Barrie, Defendants

BEFORE: The Hon. Madam Justice A.A. Casullo

COUNSEL: S. Lucenti, Counsel for I. Furlong, Lawyer for the Plaintiff S. Ronan, Counsel for the Defendants

HEARD: By Written Submissions

COSTS ENDORSEMENT

BACKGROUND

[1] This action arises out of a motor vehicle and bicycle accident that occurred on July 29, 2015. The plaintiff brought an action against the defendant driver and the City of Barrie (the “City”).

[2] The City brought this motion for summary judgment, seeking to dismiss the plaintiff’s claim against it on the basis that the plaintiff failed to provide notice of the claim within the legislated ten-day time period, pursuant to s. 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25.

[3] The plaintiff was successful in defending the motion in respect of the limitation period. However, I found there was insufficient evidence before me to determine whether the City was prejudiced in its defence. This issue of prejudice remains to be determined by the trial judge.

[4] Pursuant to my request the parties have submitted written costs submissions. The plaintiff submits that the circumstances of this case do not warrant a departure from the usual costs order for a contested motion and accordingly, seeks costs on a partial indemnity basis in the amount of $49,128.02.

[5] The City submits that costs of the motion should be reserved to the trial judge. In the alternative, if I decide to award costs of the motion, the City submits that the costs claimed by the plaintiff far exceed what a party on such a motion would reasonably expect to pay for costs.

LEGISLATIVE FRAMEWORK

[6] Pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the costs of a proceeding are in the discretion of the court.

[7] When exercising its discretion, the court may consider, in addition to the result in the proceeding, the principles set out in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[8] Rule 57.03(1)(a) of the Rules of Civil Procedure provides that on the hearing of a contested motion, the court “shall” fix the costs of the motion, unless the court is satisfied that a different order would be more just.

PLAINTIFF’S POSITION ON COSTS

[9] The plaintiff submits that this motion was of extreme importance. Had the City succeeded, the plaintiff would have lost the opportunity to recover damages from the City for his injuries.

[10] The City alleged negligence against the plaintiff’s lawyer, which necessitated the lawyer reporting the matter to LawPRO, his professional indemnity insurer. LawPRO counsel were required to familiarize themselves with the matter in advance of the motion. Additionally, the City alleged it was prejudiced by the plaintiff’s delay in providing notice. Expert evidence was required on this issue.

[11] The plaintiff submits that the record was extensive. Two affidavits were filed. Five days of cross-examinations were required. The City filed three motion records. A substantial part of preparing for the motion was carried out by junior counsel at a rate substantially lower than senior counsel. Junior counsel’s attendance at the hearing of the motion was at no cost to the plaintiff.

CITY’S POSITION ON COSTS

[12] The City submits that the motion for summary judgment was appropriately brought, given that the 10-day notice period was not complied with, and the plaintiff had not provided any explanation as to why this was prior to the motion.

[13] Further, there was evidence to suggest the City had been prejudiced in its defence given that the City was unable to determine why the lights in question were not working at the time of the accident.

[14] The City submits that in bringing the summary judgment motion at the early stages of the litigation, there was the opportunity to deal with the entire litigation in an efficient and expedited manner.

ANALYSIS

[15] Justice Akbarali addressed r. 57.03(1) in *238431 Ontario Inc. v. Rose of Sharon (Ontario) Retirement Community et al*, 2017 ONSC 3372, and examined when it might be appropriate to depart from the standard of fixing costs following a contested motion. Her Honour declined to grant summary judgment. In so doing, she found that the issues raised on the motion remained live. While the defendant had successfully resisted summary judgment, there was the potential that the plaintiff could obtain judgment. In her view, the work done in preparing for the motion would reduce the costs of the trial. In that case, costs were reserved to the trial judge.

CONCLUSION

[16] The court is faced with a similar situation here. The plaintiff has successfully resisted summary judgment in respect of plaintiff counsel’s failure to put the City on notice in a timely manner. However, the issue of whether the City has been prejudiced by late notice of the claim is still live, and it is possible the City might succeed on this issue at trial.

[17] Accordingly, and in line with the authority set out in 238431 Ontario Inc., I find it is just in these circumstances to reserve the costs of the motion to the trial judge.

CASULLO J. Date: April 2, 2019