Court File and Parties
Court File No.: CV-12-443718 Date: 2019 06 12
Superior Court of Justice - Ontario
Re: Craig Hurst, Plaintiff - and - James Hancock, Darwin Productions Inc. and Tradepoint 360 Inc., Defendants
Before: Master Todd Robinson
Counsel: K. Marciniak, for the moving defendants, James Hancock and Darwin Productions Inc. M. Singh, for the plaintiff
Costs Endorsement
[1] On March 28, 2019, I heard the motion by the defendants, James Hancock and Darwin Productions Inc. (together, the “Hancock Defendants”), for an order requiring the plaintiff to make payment of the costs ordered payable following the Hancock Defendants’ successful summary judgment motion, failing which the plaintiff’s defence to the Hancock Defendants’ counterclaim be struck, and an order staying a pending motion by the plaintiff for summary judgment dismissing the Hancock Defendants’ counterclaim. On May 8, 2019, I dismissed the Hancock Defendants’ motion and invited the parties to make written submissions as to costs if they could not reach agreement.
[2] I have now received and considered each party’s submissions as to costs. Although I ordered that there be no reply cost submissions, after receipt of the Hancock Defendants’ responding submissions, plaintiff’s counsel submitted an amended costs outline with some reply submissions in the covering letter. This was apparently done without the consent of the Hancock Defendants’ lawyer. The amended costs outline significantly reduces the total hours claimed from an aggregate 45.55 hours to 24.65 hours. Those hours claimed are more commensurate with the Hancock Defendants’ cost outline, which shows a total of 22.7 hours spent on the motion.
[3] The plaintiff, as the successful party on the motion, seeks costs on a substantial indemnity basis in the amount of $8,344.57, including HST and disbursements. Notwithstanding seeking substantial indemnity costs, the plaintiff submits that it would be unjust for him to bear any costs incurred opposing the motion essentially on the basis that the Hancock Defendants ought to have known that the motion was ill-fated before it was brought. No case law has been provided supporting the plaintiff’s claim for an award of substantial indemnity costs.
[4] The Hancock Defendants submit that there should be no order as to costs or, in the alternative, that an order of $2,500 is appropriate. The Hancock Defendants submit that the issue decided was novel, in that there were no available cases specifically on point. They further submit that the case law relied upon by the Hancock Defendants reasonably supported the argument advanced, particularly in factual circumstances such as this case, where the responding party had not itself appealed the summary judgment decision giving rise to the adverse costs award at issue.
[5] I agree with the plaintiff’s submission that the Hancock Defendants could not succeed on their motion to stay the plaintiff’s summary judgment motion given my lack of jurisdiction to interfere with the order of Justice Diamond by which the motion was scheduled. Rule 37.02(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) clearly provides that a master lacks jurisdiction to set aside, vary or amend an order of a judge, which would be the effect of making an order staying the summary judgment motion. The Hancock Defendants rightly did not pursue this relief in argument, but costs were still expended in preparing those portions of both the moving and responding materials that dealt with the issue. However, this aspect of the motion represents only a small portion of the overall motion. The plaintiff’s costs outline does not delineate what work was expended on this portion of the motion as opposed to the remainder.
[6] I do not agree with the plaintiff’s submissions that the Hancock Defendants’ position on the balance of the motion was “quite evidently” in contravention of Rule 63.01(1) of the Rules. Neither counsel provided any definitive case law dealing directly with the specific issue of enforceability of a costs award that is not appealed while an appeal of the related merits judgment remains outstanding. That I ultimately accepted the position and arguments of the plaintiff after reviewing and considering the relevant case law does not mean the arguments made by the Hancock Defendants had no merit. The text of Rule 63.01(1) does not expressly address treatment of a subsequent cost award made after the merits judgment and, as was the case here, after the appeal period for the merits judgment had expired.
[7] I agree with the submission of the Hancock Defendants that it is appropriate to consider the “novel issue” factor when determining whether or not there should be a costs award and, if so, in what amount: Baldwin v. Dobnev, 2006 ONSC 33317, [2006] O.J. No. 3919 at para. 31. However, I am not satisfied that the issues on this motion were sufficiently novel to a degree that justifies no order as to costs, or to have any significant bearing on the disposition as to costs.
[8] The plaintiff was wholly successful in its opposition of the Hancock Defendants’ motion, and is entitled to a costs award. Substantial indemnity costs are not to be awarded unless special grounds exist to justify a departure from the usual partial indemnity scale, and are generally only warranted where there has been reprehensible, scandalous or outrageous conduct on the part of a party: Young v. Young, [1993] 4 S.C.R. 3 at p. 134. In the circumstances before me, there is no evidence supporting improper conduct by the Hancock Defendants in bringing the motion. There were no offers to settle. I find no basis to depart from a partial indemnity scale for costs.
[9] The plaintiff’s amended costs outline seeks $6,420.48 on a partial indemnity basis. The Hancock Defendants submit that $2,500 in costs is fair and reasonable. However, had they been successful, their costs outline supports a partial indemnity costs claim of $4,995, including HST and disbursements. I am not satisfied that it is within the reasonable expectations of the parties that the responding party would have incurred significantly greater expenses than the moving parties on a motion of this nature, particularly given the materials that were filed by both sides. It should, however, be within the reasonable expectations of the Hancock Defendants to pay a costs award commensurate with their own claim in circumstances such as this motion.
[10] For the foregoing reasons, and taking into account the principles outlined in Rule 57.01 of the Rules and the decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), I find that the fair and reasonable amount of costs payable by the Hancock Defendants to the plaintiff is $5,000.00, inclusive of HST and disbursements. I accordingly order that the Hancock Defendants shall pay such amount to the plaintiff as costs of the motion within 30 days.