Court File and Parties

COURT FILE NO.: C-2432-13 DATE: 2019 05 28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Air Bravo Corp. Plaintiff – and – John Norris, Yvonne Norris, JYP Services, Simon Martin, Heather Vandertas, Gerald Vandertas and Northern Air Solutions Inc. Defendants

Counsel: Robert J. Fenn, for the Air Bravo Corp. Dawood Ahmad, for the Heather Vandertas, Gerald Vandertas and Northern Air Solutions Inc.

HEARD: April 25, 2019

Supplementary Reasons on Costs

CORNELL J.

Introduction

[1] On April 25, 2019, I delivered oral reasons in connection with the costs order that was made. Having now received the transcript of such reasons for my consideration, I take this opportunity to provide further detail by way of supplementary reasons.

Results

[2] The motion was brought by the plaintiff in connection with some 78 questions that were provided at the time of the defendants’ examinations for discovery that involved undertakings, questions taken under advisement and refusals. At the end of a full day, the plaintiff was successful in connection with 77 of those questions. The plaintiff saw fit to withdraw one of the questions that had been originally advanced in the motion material. In these circumstances, it would risk understatement to say that the plaintiff was the successful party.

Unreasonable Conduct

[3] In the oral reasons that were rendered, I address some of the areas where I considered that the defendants conduct had been unreasonable.

[4] A further example of this unreasonable behaviour involves the fact that working from memory, some 25 or 30 of the questions that were the subject matter of the motion were not questions at all, but rather involved undertakings that had been given by these defendants at the time of the examinations for discovery. Counsel for these defendants attempted on numerous occasions to refuse to comply with the undertaking on the basis that “subsequent developments” were such that it was no longer appropriate for such undertaking to be satisfied. When it was pointed out to counsel that an undertaking is an undertaking that needs to be satisfied or complied with, counsel continued to take the position that “subsequent developments” were such that it was not appropriate that the undertaking be satisfied. Apart from that, the arguments that were advanced had more to do with an effort to reconsider the propriety of the undertaking, something that is not proper.

Proportionality

[5] These defendants resisted the claim for costs presented by the successful party on the basis that such an award would not be proportionate. Part of the difficulty with this argument lies in the fact that such argument was presented as a bald assertion without any framework or detail. In other words, this argument was presented in a vacuum.

[6] Counsel for these defendants argued that the amount being sought by the successful party was not proportional. While it is true that r. 1.04(1.1) of the Rules of Civil Procedure requires all court orders to be proportionate to the importance and complexity of the issues and to the amount involved, in my opinion, such principal cannot be relied upon to defeat an otherwise meritorious claim for substantial indemnity costs.

Amount Claimed

[7] I carefully reviewed the bill of costs that was submitted by the plaintiff. Such bill of costs set out the work that was done, the time expended as well as the applicable hourly rates. I find that the work that was done was reasonable in the circumstances as are the hourly rates claimed. I make note of the fact that a considerable portion of the work that was done was necessitated as a result of these defendants failure to comply with two court orders and failing to comply with new time deadlines where various indulgences had been granted.

[8] After reviewing such bill of costs, I am satisfied that the claim for costs as presented pertains solely to the work that was required in connection with this motion. I am further satisfied that the claim for disbursements is reasonable.

Conclusion

[9] Given the conduct of these defendants as detailed in my oral decision and these supplementary reasons, the complete success obtained by the moving party, the amounts involved in the litigation, as well as these defendants failure to abide by the numerous indulgences granted by the plaintiff’s counsel, the award of substantial indemnity costs is both proportionate and justified.

The Honourable Mr. Justice R. Dan Cornell

Released: May 28, 2019