Ontario Superior Court of Justice
Wildfong v. Dye & Durham Corporation
2019 ONSC 2651
Court File No.: CV-18-602498 Motion Heard: 2019 04 03
Counsel: Daniel Lublin for the plaintiff Andrew Bratt for the defendant
Supplementary Endorsement
Master R.A. Muir
[1] On April 3, 2019 I heard an urgent motion brought by the plaintiff for an order that Aziz Pirani attend at an examination for discovery as a representative of the defendant corporation. The plaintiff brought the motion on an urgent basis because it appeared that Mr. Pirani may have been leaving his employment with the defendant corporation soon after and thereby ceasing to be an appropriate prima facie witness under Rule 31.03(2).
[2] I released my decision at the conclusion of argument on April 3, 2019. [1] I made an order that Mr. Pirani attend at an examination for discovery on behalf of the defendant and requiring the defendant to serve its affidavit of documents.
[3] As part of my April 3, 2019 endorsement, I also requested written submissions on the issues of the costs of a failed mediation and the costs of this motion. I have now received and considered those submissions.
[4] The plaintiff seeks his costs of the failed mediation. The plaintiff relies on a letter from the mediator to the Mandatory Mediation Program dated March 28, 2019. That letter suggests that the defendant’s representative arrived late for the mediation and was also unwilling to engage in any meaningful settlement discussions. The plaintiff argues that this conduct amounted to bad faith and resulted in an unproductive mediation session. The plaintiff submits that he should be awarded his costs thrown away.
[5] I am not prepared to award any costs in connection with the failed mediation. First, the defendant’s evidence disputes the mediator’s allegation that its representative arrived late. Second, while there appears to have been some reluctance to engage in settlement discussions, there is no suggestion in the letter that this unwillingness was a result of bad faith or other improper conduct. The defendant filed a statement of issues and provided copies of relevant documents in advance of the mediation. The defendant appeared at the mediation with counsel. It appears that the plaintiff and the defendant were some distance apart in terms of a resolution of this matter. There is also a suggestion in the mediator’s letter that the defendant was considering appointing new counsel (which it in fact did the day after the mediation). This may have also affected the conduct and outcome of the mediation. I am certainly unable to make a finding of bad faith on the evidence before me on this motion.
[6] I am therefore making no order with respect to the costs of the mediation.
[7] The plaintiff seeks his full indemnity costs of the motion in the amount of approximately $12,500.00. Alternatively, he asks for substantial indemnity costs of approximately $11,800.00. The plaintiff argues that he was the successful party on this motion and an elevated costs order is justified based on the alleged bad faith conduct of the defendant.
[8] The defendant argues that it was successful on three of the four areas of relief and it should be awarded its costs with a 20% reduction for lack of complete success. It asks for substantial indemnity costs of approximately $20,300.00 or partial indemnity costs of approximately $13,700.00.
[9] When dealing with the costs of a motion or other proceeding, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier , [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario , [2004] OJ No. 2634 (CA) at paragraph 26 . In Davies v. Clarington (Municipality) , 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[10] Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Davies at paragraph 40 .
[11] The plaintiff was successful on the main issue on the motion and I note that it was the only issue seriously argued in court on April 3, 2019. The result was that I made an order that Mr. Pirani attend at an examination for discovery on behalf of the defendant. This is the dispute that occupied most of the attention of the parties on this motion. The plaintiff is entitled to some of his costs.
[12] However, I do not see any conduct on the part of the defendant that could be described as reprehensible so as to justify an elevated costs order. It is true that the defendant initially agreed to produce Mr. Pirani as its discovery witness and later attempted to resile from that agreement. However, the defendant’s change of position appears to have been based on the fact that Mr. Pirani communicated his intention to resign from the defendant after he had been put forward as its discovery witness. I concluded that Mr. Pirani’s pending departure was not a sufficient basis, in the circumstances of this action, to deny the plaintiff his right to examine Mr. Pirani. However, I do not view the defendant’s actions as based on bad faith or some other improper plan to delay or gain a strategic advantage. I accept that Mr. Pirani’s relationship with the defendant had changed in the interim and the defendant was simply reacting to those changed circumstances. Certainly, the change in circumstances could have been communicated to the plaintiff sooner than it was but that does not amount to reprehensible conduct.
[13] The plaintiff is therefore entitled to his partial indemnity costs of the motion, with a deduction for the lack of success on the mediation issue. The plaintiff’s costs outline identifies partial indemnity fees and disbursements of approximately $9,500.00. This amount appears reasonable in the circumstances, and certainly in comparison to the defendant’s suggested partial indemnity fees and disbursements. In my view, a reduction in costs of approximately one third is fair and reasonable to account for the mediation issue and the resulting lack of complete success.
[14] For these reasons, I have concluded that it is fair and reasonable for the defendant to pay the plaintiff’s partial indemnity costs of this motion fixed in the amount of $6,300.00, inclusive of HST and disbursements. These costs shall be paid by May 29, 2019.
2019 04 29 Master R. A. Muir
[1] Reported at 2019 ONSC 2137 .