Court File and Parties
Court File No.: 1126-16SR Date: 2019-06-20 Superior Court of Justice – Ontario
Re: Annette Elizabeth Breckenridge, Ashley Breckenridge, Salem Bos by his litigation guardian Ashley Breckenridge, and Tyson Bos by his litigation guardian Ashley Breckenridge And: Oxford County Housing
Before: Justice J.C. George
Counsel: Kevin Egan, for the Plaintiffs Paul Shand, for the Defendant
Heard: June 19, 2019
Costs Endorsement
[1] Annette Breckenridge (hereafter “Plaintiff”) slipped and fell on stairs inside a rental unit owned by the Defendant. Her daughter Ashley, and two grandchildren, are Family Law Act claimants.
[2] The Plaintiff pleads negligence alleging that the Defendant breached the duty of care it owed her by, inter alia, failing to ensure the stairs were in a reasonably safe condition. She seeks both general and special damages.
[3] In September 2018 the Defendant brought a summary judgment motion claiming there was no genuine issue requiring a trial. A special appointment date was promptly secured with a full day set aside for argument.
[4] In accordance with the agreed upon timetable the Plaintiff served and filed her responding motion record on February 11, 2019.
[5] Shortly thereafter, and upon its counsel’s review of the just produced Plaintiff expert report, the Defendant abandoned the motion rightly concluding that summary judgment was not in the cards.
[6] The issue before me is whether to now award costs to the Plaintiff, following this event, or to, as the Defendant urges, order that costs be payable in the cause.
[7] Each party has provided a Bill of Costs detailing the expenses incurred in both prosecuting and defending this motion.
[8] The Defendant argues that it was reasonable to bring the motion at the time it did, for these reasons:
- This action was commenced under the Simplified Procedure regime which required the Plaintiff to set it down for trial by serving a notice of readiness for pre-trial conference within 180 days of filing of the Statement of Defence. This did not happen.
- As of September 2018 – when the summary judgment motion was issued – while the Defendant had in its possession reports from experts it had retained (which favoured the Defendant’s theory of the case), it had not yet received a report from any expert retained by the Plaintiff.
- When it ultimately received the Plaintiff’s responding motion record, in February 2019, and upon counsel’s review of the Plaintiff’s expert report, it then abandoned the motion conceding that a trial was necessary.
[9] It further argues that given the evolution of this case, the surrounding circumstances, motivation in bringing the motion, and its timing, costs should not follow the event as all of the work done responding to the motion is work that had to be done in any event. For example, under simplified procedure the Plaintiff would have had to provide an affidavit for trial. While the Plaintiff’s affidavit would surely need to be augmented (i.e. to address damages), this would require minimal effort. In addition, the Plaintiff will be well positioned to advance its costs argument after trial should she be successful.
[10] Moreover, in a case such as this the Plaintiff would have had to obtain an expert opinion. The fact she did so in response to this motion simply altered the timing of its production.
[11] The Plaintiff contends that her counsel’s bill of costs takes this into account and that she is not seeking recovery for work that would have to be completed in the normal course.
[12] Her counsel frames it this way: The Defendant was unsuccessful on its motion, and as a result there should be immediate cost consequences. In response to the Defendant’s submission that the parties are in no different position than they were before and that the respective positions are unchanged, the Plaintiff argues that the Defendant’s position has changed. Whereas it took the view there was no genuine issue requiring a trial; it now agrees there is.
[13] In the result I find that, while costs will typically follow an event, the timing of this motion and the reason for bringing it, weighs against a costs award that would have immediate effect.
[14] I recognize that the authorities relied upon by the Defendant – where costs were ordered payable in the cause on summary judgment determinations that were “close calls” - are not on all fours with the case at bar. And to be clear I do not arrive at the decision I have for that reason. For me, it is a question of timing and motivation. That is, when, and under what circumstances, should costs be paid for this particular step in the proceeding?
[15] Having considered the written materials and counsel’s submissions, and given the unique circumstances that led to the motion and its withdrawal, costs are fixed at $7,000 payable in the cause.