Court File and Parties

COURT FILE NO.: CV-09-377701 DATE: 20190423 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUSAN CUMING and MARTIN GYOROKY, Plaintiffs – AND – CITY OF TORONTO, THE TORONTO TERMINALS RAILWAY COMPANY LIMITED and TORONTO PORT LANDS COMPANY, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Bryan Rumble and Alissa Goldberg, for the Plaintiffs Danette Cashman, for the Defendants, City of Toronto and Toronto Port Lands Company Jonathan Levy and Jordan Elmore, for the Defendant, Toronto Terminal Railway Company

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On March 18, 2019, I released my judgment in this double motion, simultaneously dismissing the request by the City of Toronto (the “City”) for summary judgment against the Plaintiffs and the request by the Toronto Terminal Railway Company (the “Railway”) for summary judgment in its cross-claim against the City. I concluded that both the main claim and the cross-claim should proceed to trial.

[2] An award of costs is discretionary under section 131 of the Courts of Justice Act. While costs on a partial indemnity basis typically follow the event, there are circumstances in which the Court may diverge from this general rule. Counsel for the Railway submits that a dismissed motion for summary judgment is such a circumstance and that in this case it is more appropriate to award costs in the cause. As the Railway’s counsel puts it, this will permit the trial judge to assess this case in its entirety and make an award of costs that corresponds to the ultimate results achieved by each of the parties. I agree.

[3] In Gafny v Vainshtein, 2016 ONSC 4030, Justice Mulligan reasoned that, having dismissed the plaintiff’s motion for summary judgment, it was appropriate to award costs in the cause. He considered a number of factors in reaching that conclusion, including:

(1) The merits of the action had yet to be determined; (2) The productions, affidavits and other work product from the summary judgment motion had further use as part of the evidentiary record at trial; (3) Conflicting evidence and any resulting credibility issues would be dealt with by the trial judge; (4) The plaintiff in that case had a reasonable chance of success on summary judgment, and could yet be successful at trial; and (5) The plaintiff, following trial, might receive damages from the defendant in any event, making an order for costs payable to the defendant redundant.

[4] Justice Perell followed similar reasoning in both Smith (Estate) v National Money Mart Co. (2008), 92 OR (3d) 224 and Masales v Cole, 2016 ONSC 1814. In Masales, he concluded that it was reasonable for the defendant to have brought the motion despite the fact that he was unsuccessful in seeking to have the action dismissed. Perell J. opined that it remained a live issue as to whether or not the defendant would be successful at trial, making an order of costs in the cause the most appropriate way to address costs at the motion stage. Referencing his own earlier decision in National Money Mart, he noted that the value of ordering costs in the cause following an unsuccessful summary judgment motion is that such an order “sustains the value of the party’s investment until the final outcome” of the lawsuit is determined.

[5] All of this reasoning is equally relevant to the present case. The City and the Railway were unsuccessful in seeking to have the respective claims against them dismissed. These results were based on my assessment that there were genuine issues to be tried in both the main claim and the cross-claim. By definition, the merits of neither claim were determined on the motion and the City and the Railway could yet be vindicated at trial. As in Gafny, the productions, affidavits and other work done by the parties in pursuit or defense of the motion will doubtless be put to good use as part of the evidentiary record at trial. While the result of the double motion did not change the position of the parties in the action, the record produced will assist in the progress to trial.

[6] I will therefore exercise my discretion by ordering that the costs of both the City’s motion and the Railway’s motion be in the cause.

Morgan J. April 23, 2019