Court File and Parties

ONTARIO – SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-16-555778

MOTION HEARD: 2019 07 12

COUNSEL: Andrew McCoomb and Justine Smith for the defendant M. Tubie for the plaintiffs by limited retainer for this motion only and Lucy Damiani also present

Endorsement

Master R. A. Muir –

[1] This is a motion brought by the defendant pursuant to Rules 57.03(2) and 60.12 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The defendant seeks an order dismissing or staying this action due to the failure of the plaintiffs to pay interlocutory costs orders totalling approximately $45,000.00. The plaintiffs are opposed.

[2] This is a claim based on negligence and breach of contract. The electricity to the plaintiffs’ home was disconnected by the defendant apparently after the plaintiffs refused to allow for the installation of a so-called “smart metre”. The history of the dispute and the facts relating to this action are set out in the decision of Justice Backhouse in Damiani v. Toronto Hydro Corporation, 2019 ONSC 284 at paragraphs 12 to 17.

[3] There are four unpaid costs orders in issue. On May 25, 2017, Justice Myers ordered the plaintiffs to pay $25,000.00 in costs in relation to an abandoned injunction motion. On January 12, 2018, the Divisional Court ordered further costs against the plaintiffs in the amount of $5,000.00. Master Abrams ordered costs against the plaintiffs in the amount of $8,000.00 on July 31, 2018. Finally, Justice Backhouse made a costs order of $7,439.16 against the plaintiffs on February 6, 2019. None of these costs have been paid in whole or in part.

[4] The parties are in agreement as to the general test to be applied on a motion of this nature. The court must exercise its discretion in a manner that balances the competing interests of the parties and consider all relevant factors. See Tarion Warranty Corporation v. 1486448 Ontario Inc., 2012 ONCA 288 at paragraph 6. The relevant competing interests are allowing a litigant his or her day in court and enforcing court orders.

[5] I am satisfied that it is in the interest of justice in the circumstances of this action to allow the plaintiffs one further opportunity to comply with the outstanding costs orders. The plaintiffs’ evidence is that Lucy Damiani has number of business opportunities pending between now and the end of 2019 through which she will be able to retire the indebtedness to the defendant. Ms. Damiani’s affidavit also provides some explanation of the personal circumstances which she alleges resulted in the failure of the plaintiffs to pay the costs orders in a timely manner.

[6] The defendant argued that no further indulgence should be afforded to the plaintiffs. The defendant points to what it describes as conduct of the plaintiffs that demonstrates disrespect to the court. I agree that some of Ms. Damiani’s statements and actions may have been ill-advised. However, I do not see any of the evidence on this motion as rising to the level of being insulting to the court or an abuse of process. This claim is obviously important to Ms. Damiani. She believes strongly in her claim. She has been disappointed with how it has turned out so far. I view her statements and actions as reflecting her frustration within the context of the adversarial process. Ms. Damiani has provided sworn evidence on this motion stating her respect for the court’s process and has committed to retiring the plaintiffs’ debt to the defendant within a reasonable period of time.

[7] I see no prejudice to the defendant if a further indulgence is granted by way of a last chance order accompanied with a stay of proceedings. If the costs are not paid within a reasonable period of time it is unlikely that this matter will be allowed to continue. A stay of proceedings will ensure that no further costs are incurred in the interim. The prejudice to the plaintiffs is obvious. If this action is dismissed for the non-payment of costs orders, they will be denied their day in court and the opportunity to have their claim determined on its merits.

[8] For these reasons, I am not prepared to dismiss the plaintiffs’ action. The plaintiffs shall pay the outstanding costs orders in six equal monthly installments beginning August 12, 2019. This action is stayed until all outstanding costs have been paid. If the plaintiffs default on any of these payments, the defendants shall have leave to bring a further motion to dismiss this action on notice to the plaintiffs.

[9] In my view, there has been divided success on this motion. The primary relief sought by the defendant was not granted. The plaintiffs’ request for a further indulgence was allowed. In my view, it is fair and reasonable that there be no order for the costs of this motion.

2019 07 12 Master R. A. Muir