SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GERRIT JOHN GEERLIGS, Plaintiff
- and -
BECK TAXI LIMITED, Defendant
BEFORE: Master Todd Robinson
COUNSEL: S. Juzkiw, for the plaintiff
L. Freitag, for the defendant
COSTS ENDORSEMENT
1On April 25, 2019, I heard the plaintiff’s motion to set aside the registrar’s dismissal order dated February 26, 2019. On April 29, 2019, I granted the plaintiff’s motion and restored the action with a timetable for remaining steps. I invited the parties to make written submissions as to costs if they could not reach agreement. I have now received and considered each party’s submissions as to costs.
2The plaintiff’s submissions have been made informally in the text of an email to my Assistant Trial Coordinator, with a costs outline attached. That is not what I intended by “written submissions”. The plaintiff, as the successful party on the motion, seeks costs of $7,680 on a partial indemnity basis. The plaintiff’s cost outline includes entries totalling 31 hours of time spent by plaintiff’s counsel, with no assistance by junior lawyers, clerks or students.
3The defendant‘s submissions are more formal, including case law citations and copies of authorities relied upon. The defendant submits that the plaintiff has been given an indulgence and it is appropriate in this case that each party bear their own costs or, alternatively, that any costs ordered be in the cause. The defendant also filed its own costs outline, showing that the defendant would have claimed $8,842 on a partial indemnity basis.
4The plaintiff submits that costs should be awarded against the defendant because it ought to have consented to the motion. I do not agree that the defendant was obliged to consent. It was not unreasonable for the defendant to have required the plaintiff to demonstrate that the requisite legal test for set aside of a registrar’s dismissal order was satisfied.
5The defendant points to several cases where courts have declined to award costs in favour of a successful plaintiff by reason of the court’s indulgence given in restoring an action, and even cases where the defendant has been awarded costs notwithstanding being unsuccessful. Among the cases cited by the defendant is Master Muir’s recent cost decision in Bank of Montreal v. Newman & Seversky LLP, 2019 ONSC 1755. In that decision, Master Muir found that no costs should be ordered, holding as follows (emphasis added):
[3] I agree with the defendant that the plaintiff was given an indulgence by the court. The plaintiff failed to provide an adequate explanation for its delay in advancing this claim. However, I do not view the indulgence as being particularly significant in the circumstances of this action. The many authorities applicable to motions of this nature make it clear that prejudice is the key consideration. I made a finding that there was simply no evidence of prejudice to the defendant. The plaintiff also satisfied the other applicable factors and I found that the principle of finality was not a significant consideration. I also note that the plaintiff made several attempts to obtain the consent of the defendant to an order setting aside the dismissal but the defendant declined to provide such consent.
[4] However, the plaintiff did receive an indulgence from the court. In my view, it is sufficient in the circumstances of this motion if the price of that indulgence is to deprive the successful plaintiff of its costs. It is therefore fair and reasonable that there be no order for the costs of the motion.
6I agree with Master Muir that case law supports that prejudice is the key consideration on a motion to set aside a registrar’s dismissal. Unlike the facts in Bank of Montreal, though, where there was no evidence of prejudice, prejudice to the defendant was a central disputed issue in the motion before me. The defendant here tendered evidence of prejudice and strenuously argued that it had suffered actual prejudice as a result of the delay.
7In my view, prejudice was the primary basis on which the defendant opposed the motion. The defendant was unsuccessful in convincing the court that it had suffered any actual prejudice arising from the plaintiff’s delay. The defendant argued that this court should follow law that had been overturned by the Court of Appeal, and relied on alleged prejudice that was found not to have been caused by any delays attributable to the plaintiff, but rather was caused by the defendant’s own lack of diligence in complying with its obligations under the Rules of Civil Procedure, RRO 1990, Reg 194 and in answering undertakings given at discoveries. This case is distinguishable on that basis from the cases cited in the defendant’s submissions. It is fair and appropriate that the defendant pay some costs to the plaintiff in these circumstances.
8However, that does not mean the plaintiff is entitled to his costs for the entirety of the motion. This motion had to be brought. Prior to the statutory dismissal deadline, the plaintiff had two options: secure consent to a timetable with new set down deadline and file it with the court, or bring a motion for a status hearing. The plaintiff did neither, and the action was dismissed as a result. The plaintiff filed no evidence supporting any inadvertence in missing the deadline and no evidence suggesting it was even tracked or considered. When the dismissal was discovered, the plaintiff promptly prepared and delivered motion materials, but there is no evidence to suggest that the plaintiff attempted to contact the defendant for its position on set aside. Costs incurred for planning and preparing the plaintiff’s motion record are accordingly costs that the plaintiff should bear.
9Plaintiff’s counsel certifies that the total hours claimed were spent, yet time is claimed for materials that were not filed or relied upon in argument of the motion, namely a factum and book of authorities. There is also reference to time spent on what appears to be an affidavit prepared after the plaintiff’s motion record. The defendant submits that no further affidavit, no factum and no book of authorities were served. Plaintiff’s counsel submitted no case law at the hearing, relying instead on the defendant’s cases. Given that these additional materials from the plaintiff are not before me, I cannot assess if the time spent was reasonable or necessary. In these circumstances, I am not prepared to award costs against the defendant for time spent on work product that was not served or relied upon in arguing the motion.
10The plaintiff claims an aggregate of 11 hours of time for reviewing materials and preparing for the motion. This was booked and argued as a short motion. Materials were not voluminous. The costs outline does not clarify if this time includes reviewing and preparing based on the materials not served or relied upon. I cannot find that 11 hours of review and preparation time is fair, reasonable, or within expectations of any reasonable litigant for this motion.
11A total of 4 hours of time is claimed for appearance to argue the motion. The same morning, plaintiff’s counsel attended before me on an unrelated motion in another action, which represents part of the “wait time” before this motion was called. Also, even if the defendant had not opposed, the motion had to be brought in any event. Some oral argument would have been required to satisfy the court that the requisite test had been met.
12The partial indemnity rate claimed for plaintiff’s counsel is reasonable. However, most of the costs claimed are either unsubstantiated on the record before me or represent costs that the plaintiff had to incur in any event. In all the circumstances, I find that only a few hours of time was reasonably incurred reviewing materials, preparing for and arguing the motion above and beyond what would otherwise have been incurred had the defendant not opposed.
13For the foregoing reasons, and taking into account the principles outlined in Rule 57.01 of the Rules of Civil Procedure, supra, and the decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA), I find that the fair and reasonable amount of costs payable by the defendant to the plaintiff in respect of the defendant’s unsuccessful opposition of this motion is $500.00, inclusive of HST, on a partial indemnity basis. No disbursements shall be recoverable by the plaintiff, since the disbursements claimed were necessarily incurred in bringing this motion, which had to be brought in any event.
14The plaintiff made an offer to settle costs of this motion for $3,000.00. As I have fixed costs in a result more favourable for the defendant, I need not consider the plaintiff’s offer.
15Accordingly, I order that the defendant shall pay to the plaintiff costs of the motion fixed in the amount $500.00, inclusive of HST, with no disbursements payable. Costs shall be paid within 30 days.
MASTER TODD ROBINSON
DATE: June 12, 2019