Court File and Parties

COURT FILE NO.: CV-17-3440-00 DATE: 2019 06 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Moffitt et. al. v. TD Canada Trust

BEFORE: LeMay J.

COUNSEL: S. Pickering, for the Plaintiff A. Pressé for the Defendant

ENDORSEMENT

[1] I am the case management judge in this matter. On April 26th, 2019, I released a decision dealing with the Plaintiff’s further requests for additional documents and answers relating to questions arising from undertakings and refusals. This was the third such motion. In addition, I addressed the issue of the service and filing of the Plaintiff’s expert report. It is now time to fix the costs for this motion.

Positions of the Parties

[2] The Plaintiff asserts that they should be entitled to costs on a partial indemnity basis in the sum of $2,669.65, inclusive of HST and disbursements. The Plaintiff advances this position on the basis that I found that fourteen questions needed to be answered and that, without the Plaintiff’s motion, the questions would not have been answered. In the alternative, the Plaintiff argues that, since success was divided, there should be no costs.

[3] The Defendant asserts that they should be entitled to costs on a substantial indemnity basis in the sum of $3,265.70 inclusive of HST and disbursements. In support of that position, the Defendant argues:

a) The Plaintiff behaved unreasonably in attempting to re-litigate issues that had already been decided in my previous decisions. b) The majority of the Plaintiff’s requests went well beyond the parameters for follow-up questions that had been set in both my previous decisions and the decision of Seppi J. c) The Plaintiff was using the motion in an effort to obtain the answers to questions that should have been asked on discovery.

Law and Analysis

[4] The principles that the Court should consider in awarding costs are well-known, and are set out in Rule 57.01 of the Rules of Civil Procedure. The most relevant of those factors in this case are:

a) The outcome of the motion. b) Whether the conduct of one of the parties tended to shorten or lengthen the proceeding. c) The reasonable expectation of the party being required to pay costs.

[5] I will deal with each of those issues in turn.

Outcome of the Motion

[6] I start with the success of the motion. The Plaintiff is correct that some questions were ordered to be answered by the Defendant. However, that is not the entire picture. Counsel for the Defendant is entirely correct in two of their submissions.

[7] First, the Plaintiff attempted to re-litigate the issue of proportionality, which had been determined both by myself and by Seppi J. Indeed, in the endorsement that I released on February 5th, 2019 (see Moffitt v. TD Canada Trust, 2019 ONSC 902), I stated at paragraphs 23 to 25 that Seppi J. had already addressed the issue of proportionality in this action. I also set out my conclusions that, in any event, I agreed with Seppi J.’s conclusions on proportionality.

[8] In spite of that direction, counsel for the Plaintiff re-argued the proportionality issues. Specifically, Plaintiff’s counsel stated as follows in their submissions:

The Defendant continues to raise the argument of proportionality, when it has failed to provide any evidence to allow the Court to assess the factors under Rule 29.2.03, as required by Midland Resources Ltd. v. Shtaif, 2010 ONSC 3772 (Tab 1) and Seelster Farms Inc v. Ontario, 2015 ONSC 905 (Tab 2). Thus it cannot argue that being required to provide information or documentation in their own possession is not proportional, other than if it goes beyond the limits of proportionality as set out in prior Orders. The Plaintiffs submits that none of the further questions asked go beyond those limits.

[9] It should have been clear that the issue of proportionality had been resolved by the previous decisions. It is equally clear that the prior Orders set out the bounds of proportionality in this case. As a result, the Defendants were entitled to raise arguments of proportionality as they had already been determined in the Defendant’s favour in this case.

[10] This brings me to the Defendant’s second submission. Specifically, the Defendants claim that the Plaintiff was using this further undertakings motions to ask questions that should have been asked on discovery, and were not the proper subject of follow-up questions. In my reasons of February 5th, 2019, I stated (at paragraph 33):

[33] In my view, completing the discovery means asking reasonable follow-up questions. It does not entitle a party to ask different questions that they wish they had thought of previously, or to ask questions that are unrelated to the undertakings provided or the refusals that have been ordered to be answered.

[11] In spite of that direction, Counsel for the Plaintiff included in its motion materials a letter from the Toronto Police Service dated January 31st, 2019. All of the information in this letter could have been obtained by the Plaintiff prior to the discoveries which were held in early 2017. There was no explanation as to why this information had not been obtained earlier. Instead, counsel for the Plaintiff sought to ask additional follow-up questions based on this January 31st, 2019 letter. This request was denied, and the Plaintiff should have been aware that the question would not be permitted on the basis of my February 5th, 2019 reasons.

[12] Both of these incidents are of significant concern to me. Counsel for the Plaintiff seems to be attempting to re-litigate issues that have already been determined by the Court. This is expensive, time consuming to both the Defendant and the Court and not a proper use of Court proceedings.

[13] The Defendant was entirely successful on these issues which consumed a significant portion of the submissions before me. The issues should not have been raised. This factor suggests an award of costs of a significant nature against the Plaintiff. In addition, the Defendant was entirely successful on the question of whether the Plaintiff’s expert report should be produced before the answers to any additional undertakings were provided. Again, this issue also consumed a significant portion of the motion.

[14] This brings me to the Plaintiff’s assertion that fourteen (14) questions were ordered to be answered, so that success was divided. The Plaintiff did obtain some relief on this motion. However, the bulk of the time and energy spent on the motion was spent dealing with the three issues above. As a result, the success in this case favours the Defendant, and the Defendant should be entitled to at least some costs.

Conduct of the Parties

[15] In the previous section, I have set out my concerns with the Plaintiff’s attempts to re-litigate issues that have already been determined by the Court. The Plaintiff’s conduct in this regard is counterproductive and should attract a costs sanction.

[16] I also note that, in my reasons on this motion, I expressed concerns about the delays in this case. I also noted that virtually all of these delays were occasioned by the approach that the Plaintiff has adopted to this litigation. Specifically for this motion, however, I note that the Plaintiff did not provide a complete motion record (see paragraphs 22 and 24 of my April 26th, 2018 reasons).

[17] This conduct should attract an award of at least some costs against the Plaintiff.

Reasonable Expectations of the Parties

[18] In assessing the reasonable expectations of the losing party, I need look no further than the Plaintiff’s cost outline. In that cost outline they seek costs of $2,225.52 on a partial indemnity rate. With disbursements and HST, this would add to a total claim of $2,669.65.

[19] In addition, the Defendant’s partial indemnity claim for costs (inclusive of HST and disbursements) is almost precisely $2,000.00, and their substantial indemnity claim is $3,265.70. These numbers, especially when considered against the Plaintiff’s partial indemnity costs claim, appear entirely reasonable.

Conclusion

[20] Normally, the conduct of the Plaintiff in this case would entitle the Defendant to substantial indemnity costs. However, the Plaintiff was successful in having some of the questions answered. As a result, some deduction in the substantial indemnity amount is appropriate.

[21] When all of these points are considered, I conclude that the Plaintiff should pay costs to the Defendant in the sum of $2,500.00 inclusive of HST and disbursements. Those costs are due and payable within fourteen (14) calendar days of today’s date.

LeMay J. DATE: June 26, 2019