Superior Court of Justice - Ontario

COURT FILE NO.: 15-2643

DATE: 2019/08/14

RE: 1353837 ONTARIO INC., Applicant

AND:

DEREK PIGOZZO AS CHIEF BUILDING OFFICIAL FOR THE CITY OF STRATFORD, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: John S. Doherty, Roberto Aburto and Jonathan Minnes, for the applicant

Michael A. van Bodegom, Patrick J. Kraemer and Thomas E. Sanderson, for the respondent Mr Pigozzo, and for the proposed additional respondent, Gerald Moore as Chief Building Official for the City of Stratford

HEARD: In writing

ENDORSEMENT

Costs of Applicant’s Motion to Amend Proceedings

Introduction

[1] On May 8, 2019, I released my decision concerning a motion, brought by the applicant herein, to amend its notice of application.

[2] The nature and background of the litigation and related proceedings, as well as the nature of the applicant’s proposed pleading amendments, were outlined at length in my earlier endorsement, since reported as 1353837 Ontario Inc. v. Derek Pigozzo as Chief Building Official for the City of Stratford (2019), 306 A.C.W.S. (3d) 631, (Ont.S.C.J.).

[3] For reasons set out in my earlier endorsement, I denied the requested relief.

[4] Because my decision was reserved, the parties had no opportunity to address costs when the motion was argued on February 13, 2019, and my reasons therefore invited written cost submissions pursuant to an indicated timetable, if the parties were unable to reach an agreement on entitlement and/or quantum in that regard.

[5] The parties were not able to settle the costs of the motion, and written costs submissions were tendered accordingly. In particular, I received the following:

• initial cost submissions of the respondent Mr Pigozzo and proposed additional respondent Mr Moore, delivered on or about May 21, 2019;
• responding cost submissions of the applicant, delivered on or about June 4, 2019; and
• reply cost submissions of Mr Pigozzo and Mr Moore, delivered on or about June 7, 2019.

Party Positions

[6] I have reviewed and considered the above cost submissions in detail and at length, and the following overview should not suggest otherwise. In broad terms, however, the parties’ respective positions may be summarized as follows:

• Mr Pigozzo and Mr Moore seek an all-inclusive amount of $12,979.13 in costs from the applicant, on a substantial indemnity basis. In the alternative, they seek an all-inclusive amount of $9,558.62 in costs from the applicant, on a partial indemnity basis. In doing so, they rely upon various considerations, including:
  • their success in resisting the motion;
  • various aspects of the applicant’s motion, the conduct of the applicant in advancing the motion, and several of my observations in that regard, (set forth in my earlier endorsement), which in their view suggest that costs on an elevated scale are appropriate; and
  • aspects of the motion which are said to suggest a level of complexity and importance to the issues decided, making the costs they are claiming reasonable in the circumstances.
• In its responding submissions, the applicant does not address the quantum or scale of costs to be awarded, apart from a simple concluding request that payment of costs be deferred “if partial indemnity costs to the respondents are awarded”, without any submissions directed to the question of whether costs on an elevated scale may or may not be appropriate. The applicant’s cost submissions instead focus on suggested reasons why there should be no costs awarded in relation to the motion, that costs of the motion should be reserved, or that payment of any costs awarded to Mr Pigozzo and Mr Moore should be deferred until the conclusion of this proceeding and/or the conclusion of the applicant’s ongoing expropriate-related claims and proceedings against the city of Stratford. Such reasons included submissions, on behalf of the applicant:
  • that success was divided;
  • that the motion raised a novel question of law;
  • that the motion was in the nature of a “test case”;
  • that the court should not award costs against an “expropriated owner” that was vulnerable and impecunious because of an expropriation; and
  • that, in relation to numerous earlier motions brought in relation to the Cooper site, the Ontario Municipal Board and other motion judges have reserved the determination of cost issues indefinitely, pending the outcome of proceedings.
• In their reply submissions, Mr Pigozzo and Mr Moore took issue with all of the proffered reasons, put forward by the applicant, as to why denial or deferment of costs in relation to the motion might be appropriate.

General Principles

[7] Before further consideration and assessment of the cost positions outlined above, I pause to reiterate a number of general principles applicable to such cost determinations.

[8] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.

[9] This is supplemented by the provisions of Rule 57.01, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131.

[10] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.

[11] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to a required ultimate “cross check” in that regard.[^1]

[12] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant.[^2]

Entitlement

[13] In my view, Mr Pigozzo and Mr Moore were entirely successful in relation to this particular motion, and costs accordingly should follow the event, without any deferred determination, quantification or payment of such costs. In particular, I think there are no relevant circumstances or considerations justifying a denial or deferment of an appropriate and timely award of costs payable to Mr Pigozzo and Mr Moore by the applicant.

[14] My reasons in that regard are multi-faceted, but include the following:

a. Although the applicant’s submissions cite and rely upon the well-known proposition that courts are not bound to follow what Orkin describes as the “default rule that costs are paid by the loser of the motion”,[^3] and Orkin’s suggestion that a disposition of costs “in the cause” usually will be appropriate “where a motion has been properly made and success is divided”,^4 I see no reason whatsoever to characterize success on this particular motion as “divided”. To the contrary, Mr Pigozzo and Mr Moore were successful in having the applicant’s motion dismissed in its entirety, without reservation or qualification. By way of further observations in that regard:

i. While not something raised by the applicant in its cost submissions, I am mindful that, in the course of my reasons, I found and noted an absence of irremediable prejudice that would flow from the applicant’s proposed pleading amendments. However, that was but one consideration in the course of my analysis, which went on to outline numerous other reasons why the applicant’s motion needed to be dismissed in its entirety, and it is the outcome of the motion, (rather than incidental steps in reasoning), that generally define the parameters of success.

ii. Although the applicant suggests that the outcome of the motion had utility for both parties, insofar as my reasons included an overview of outstanding issues raised by proceedings in relation to the Cooper site, and formally confirmed that the relevant correspondence sent by Mr Moore’s lawyers was not a “decision” within the meaning of s.25(1) of the Building Code Act, 1992, S.O. 1992, c.23, (“the BCA”), in my view it is nonsensical to suggest that either consideration represents any form of divided success, as far as the outcome of the motion was concerned. Without limiting the generality of the foregoing in that regard:

1. While I thought the provision of an overview of the proceedings might be helpful, in terms of providing readers of my endorsement with additional context for my decision, that broader context obviously was well-known to the litigants and a detailed description in that regard was not necessary to the substantive outcome of the motion. Moreover, as I indicated in my endorsement, not every attendance before the court should be approached as a platform for the applicant to embark on a wide-ranging account of the extensive history and nature of the highly contentious disputes and resulting litigation relating to the Cooper site. The applicant’s submission that it should be shielded in whole or in part from an adverse cost award because I chose to include an outline of that history, (for the reasons noted above), would do little to discourage such an approach in the future.

2. In my view, there is no “divided success” inherent in the suggested utility to both parties of my confirmation that the relevant correspondence sent by Mr Moore’s lawyers was not a “decision” within the meaning of s.25(1) of the BCA. In essence, this is nothing more than a submission that both sides benefitted from judicial confirmation that one side was entirely wrong in adopting a certain position. The same could be said of any completely dismissed motion. To me, that is not “divided success” within the meaning contemplated by the cost authorities.

b. In my view, the motion did not involve a situation addressing a “novel question of law”, within the meaning of that phrase contemplated by authorities as a possible justification for denying costs to a successful party.[^5] Once again, without limiting the generality of the foregoing in that regard:

i. This was not a situation where the relevant statutory interpretation issue was unprecedented. To the contrary, as noted in my earlier endorsement, earlier authority of this court had confirmed, inter alia, that a mere indication by legal counsel of how a CBO intended to make a decision, if and when formally called upon to do so, was not a “decision” under the BCA giving rise to any right of appeal pursuant to s.25(1) of the BCA. That alone was sufficient to dispose of the applicant’s proffered rationale for attempted characterization of the relevant correspondence from Mr Moore’s lawyers as a “decision” within the meaning of s.25(1) of the BCA. The point of law already had been decided by this court. In my view, no “novelty”, in the sense required, arises from the application of that law to the particular fact circumstances of this case.

ii. This was not a case involving interpretation of new or ambiguous legislation. To the contrary, the BCA was enacted in 1992, and in my view the suggestion that its relevant provisions are ambiguous runs counter to my conclusion, (for the numerous reasons outlined in my earlier endorsement), that it was plain and obvious that the applicant’s attempted characterization of the relevant correspondence from Mr Moore’s lawyers as a “decision” within the meaning of s.25(1) of the BCA could not succeed.

c. In my view, this situation also should not be regarded as a “test case”, within the meaning contemplated by courts which have considered such circumstances as a reason for denying costs to a successful party; i.e., a case in respect of which the court’s disposition effectively provides the judicial guidance needed to resolve, albeit indirectly, numerous other proceedings raising the same issue, albeit between other litigants.[^6] In the particular circumstances in which this particular motion was decided, the legal issue raised and decided in this proceeding is common to that raised in another proceeding, (i.e., the separate application the same applicant has brought against Mr Moore in Stratford court file number 2895/18), only because the applicant itself chose to raise the same issue in two separate and apparently duplicative proceedings. In my view, allowing the applicant to shield itself from an adverse cost award in such circumstances, based on characterization of the motion as a test case that may resolve another proceeding, essentially and inappropriately would allow the applicant to “bootstrap” itself into such protection through multiplicity of proceedings for which the applicant itself is responsible.

d. I see no reason why costs of the applicant’s unsuccessful motion should be awarded “in the cause”. In that regard, I agree with the submission of Mr Pigozzo and Mr Moore:

i. that there is no foreseeable outcome of the extant proceeding against Mr Pigozzo that would have a bearing on whether it was appropriate for the applicant to join a claim against Moore that was hopeless, for the reasons outlined in my earlier endorsement; and

ii. that there is, moreover and in any event, no justification whatsoever for putting off Mr Moore’s recovery of costs, in relation to the applicant’s unsuccessful motion, until the eventual determination of an application that does and will not involve Mr Moore in any way.

e. I similarly see no reason why the separate and ongoing expropriation-related proceedings should justify denying or deferring an award of costs in favour of Mr Pigozzo and Mr Moore. In my view, the submission reflects an ongoing and inappropriate failure by the applicant, (already noted in my earlier endorsement), to make appropriate distinctions between the city of Stratford and its Chief Building Officials. Again, the latter have a recognized duty to act in an independent manner, (e.g., without direction from the municipality appointing such officials), in the execution of their enforcement duties imposed directly by the Legislature.[^7] Obviously, neither Mr Pigozzo nor Mr Moore is the expropriating authority, in respect of which the applicant is engaged in separate ongoing litigation. Neither gentleman directed, nor had the authority to direct, the expropriation said to give rise to the applicant’s professed “vulnerability”. In my view, there accordingly is no reason in fact or law why either gentleman should be obliged to have their prima facie entitlement to costs, in relation to the applicant’s dismissed motion in this proceeding, denied or deferred by suggestions that the city of Stratford has engaged in other conduct which eventually might entitle the applicant to relief and costs vis-à-vis the city in separate proceedings.

f. To the extent the applicant relies on its professed “vulnerability” as a result of the relevant expropriation, (a vulnerability for which Mr Pigozzo and Mr Moore self-evidently are not responsible), the applicant essentially argues that it should not be obliged to pay adverse cost awards because it is impecunious. In that regard:

i. Although I was presented with broad indications that the applicant was a “single asset-based company”, the sole asset of which had been expropriated, I was presented with little or no support for such bald assertions. Moreover, the manner in which the applicant has approached all aspects of this litigation frankly does not suggest a litigant without access to resources.

ii. The authorities indicate that, if and when established, impecuniosity may be one of the factors a court has the residual ability to consider, in extraordinary cases, in the exercise of its general cost discretion reflected in section 131 of the Courts of Justice Act, supra, and having regard to “other matters” pursuant to Rule 57..01(1)(i) of the Rules of Civil Procedure. However, the authorities also establish that impecuniosity, as a rule, generally should not and does not eliminate or reduce a party's liability for costs, as such an approach generally would infuse the process with considerable uncertainty, and eliminate an important "reality check" on the manner in which even impoverished litigants pursue litigation.[^8]

iii. While it may be true that there have been numerous past instances of judges deferring cost determinations and awards in relation to motions brought in litigation relating to the Cooper site, it seems to me, (with the benefit and advantage of hindsight), that such an approach may very well have contributed to a counter-productive perception or expectation that the applicant and its litigation opponents somehow have been immunized from the possibility of adverse cost awards. In my view, that possibility finds support in repeated indications, (during my period of case managing proceedings relating to the Cooper site), of a marked lack of restraint in determining the time and resources that reasonably should be devoted to incremental steps in the litigation.[^9]

iv. Such a perception or expectation would in turn undermine the significant role, (recognized and emphasized by our Court of Appeal), that the prospect of adverse cost awards plays in discouraging frivolous litigation, and/or unnecessary steps in litigation; a competing goal of the costs system that is just as important as facilitating access to justice.[^10]

v. In my view, the extended history of the Cooper site litigation, and the lamentable but in my view frequently demonstrated inability of the parties and their counsel to productively discuss and agree upon even relatively minor issues, strongly suggests the need for a salutary message to all concerned that litigation decisions in relation to the Cooper site generally should and will carry meaningful cost consequences. Even in highly contentious litigation, all concerned should remain focused on cost control and proportionality, as emphasized by our Rules of Civil Procedure.[^11]

[15] For all such reasons, in my view Mr Pigozzo and Mr Moore are entitled to an award of costs, payable by the applicant, in relation to the dismissed pleading amendment motion brought by the applicant in this proceeding.

Scale

[16] As noted above, Mr Pigozzo and Mr Moore seek their costs on a substantial indemnity basis, with a “fall back” alternative request that costs be awarded to them on a partial indemnity basis.

[17] As similarly noted, the cost submissions of the applicant did not address the scale of any costs to be awarded, apart from a request for delayed payment of any “partial indemnity costs” awarded to Mr Pigozzo and Mr Moore.

[18] Neither party relied upon any relevant settlement offers that might have a bearing on the scale of costs to be awarded, pursuant to Rule 49.10 of the Rules of Civil Procedure.

[19] The scale at which I choose to award costs in this particular instance therefore should be decided according to general principles, which include the following:

• Although the court has a broad discretion in relation to costs, confirmed by s.131 of the Courts of Justice Act, supra, as expanded by Rule 57.01 of the Rules of Civil Procedure, it has been emphasized that awarding costs on a partial indemnity basis generally strikes the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases.[^12]
• The sort of conduct meriting elevated cost awards has been described in various ways; e.g., conduct that is “reprehensible”, “scandalous”, “outrageous” or “egregious”, or which clearly indicates an abuse of process, justifying enhanced costs as a form of chastisement.[^13]
• In this context, “reprehensible” is a word of wide meaning. It can include conduct that is scandalous or outrageous, or which constitutes misbehaviour. However, it also includes milder forms of misconduct. Generally, it simply means “deserving of reproof or rebuke”.[^14]
• Even if costs are awarded on a substantial or complete indemnity basis, that does not mean that the successful party can claim whatever costs may have been charged to him or her by his or her solicitors for work done on the matter.[^15] In particular, a court’s willingness to provide a litigant with “full indemnity” for his or her reasonable litigation expense must not be construed as a “blank cheque” that will necessarily ensure recovery of all fees and disbursements voluntarily incurred in dealing with a particular step in the litigation, regardless of whether the chosen litigation measures were reasonable and proportionate.[^16] In other words, costs awarded on a substantial or complete indemnity basis are still subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case.[^17]

[20] In this particular instance, Mr Pigozzo and Mr Moore rely on a number of considerations in support of their requests for costs on a substantial indemnity scale.

[21] For example, they note and emphasize comments and findings in my earlier endorsement, (e.g., observations that the premise of the applicant’s motion to amend was “fundamentally mistaken”, constituting a “radical defect” in the proposed pleading, thereby making it “plain and obvious” that the claim contemplated by the amendments could not succeed), in support of a submission that substantial indemnity costs are appropriate because the applicant’s motion essentially was found to be completely without merit.

[22] In that regard, I note and acknowledge indications from our Court of Appeal that a step in a proceeding, found to be “entirely meritless”, may buttress a decision to award costs on a substantial indemnity basis.[^18]

[23] However, it seems to me that something more than mere absence of merit is required to justify an award of costs on an elevated scale, and that some form of misconduct, in the nature of that described above, is necessary to warrant costs on a substantial indemnity basis. Otherwise, an entitlement to substantial indemnity costs would be the norm in each and every case involving a successful Rule 21 motion, dismissing all or part of a claim or defence, on the basis of it being “plain and obvious” that the pleaded claim or defence is hopeless and cannot succeed.

[24] I nevertheless think the other considerations relied upon by Mr Pigozzo and Mr Moore, in support of their request for costs on an elevated scale, are more persuasive.

[25] In particular, as they note in their cost submissions, my dismissal of the applicant’s motion to amend its notice of application was not based simply on my view that the relevant correspondence sent by Mr Moore’s solicitor clearly did not constitute a “decision” within the meaning of s.25(1) of the BCA.

[26] To the contrary, I also found that the proposed amendments included rather obvious violations of the rules of pleading, and that there were several other important considerations militating in favour of the court’s Rule 5.04 discretion being exercised so as to dismiss the applicant’s motion to amend. Amongst those considerations were findings:

a. that the applicant’s desired amendments essentially were an attempt to address, obliquely and in a collateral fashion, concerns and issues already being addressed directly in other proceedings before the court;

b. that the applicant’s request to advance duplicative litigation against Mr Moore in this proceeding would serve no purpose whatsoever, apart from possible expansion of the applicant’s rights of examination to Mr Moore as an additional party, in turn indicative of an abuse of process; and

c. that the applicant’s insistence on pursuing such amendments immediately, (e.g., rather than waiting for the outcome of the current proceeding against Mr Pigozzo before proceeding if and as necessary with its duplicative claim against Mr Moore in Stratford court file no. 2896/18), was needlessly disruptive of contemplated progress in the existing Cooper site proceedings pursuant to earlier case management discussions and directions.

[27] On balance, while I consider these particular circumstances to be close to the line, in terms of whether or not costs should be awarded on an elevated scale, I think such an award would be appropriate at this particular stage of the proceedings.

[28] In that regard, I am mindful not only of the particular conduct noted in the previous paragraph, (which I think deserving of rebuke), but of the reality that litigation in relation to the Cooper site apparently has a long and contentious road to follow before reaching any final conclusion. In the circumstances, I think it helpful to discourage such conduct as much as possible, going forward.

[29] I accordingly intend to award Mr Pigozzo and Mr Moore their costs of the applicant’s dismissed motion on a substantial indemnity basis.

Quantification

[30] As noted above, entitlement to substantial indemnity costs does not mean that the successful party is entitled to any costs that may be claimed. Such costs must still be reasonable and proportionate to the circumstances, and are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case.

[31] Even though the applicant chose not to express any comments or criticism of the hourly rates, expended time or disbursements set forth in the cost submissions tendered by Mr Pigozzo and Mr Moore, I independently have considered such matters.

[32] In arriving at a global determination of a quantified cost award that is “fair and reasonable” in relation to the applicant’s dismissed motion, having regard to all the circumstances, my considerations include but are not limited to those outlined below.

AMOUNT CLAIMED AND RECOVERED – RULE 57.01(1)(a)

[33] Rule 57.01(1)(a) permits the court to consider “the amount claimed and the amount recovered in the proceeding”.

[34] Although the wording of that factor nominally focuses on financial amounts claimed and recovered, the broader underlying consideration is the degree to which a party to a proceeding or step in the proceeding may or may not have been successful.

[35] As noted above, in my view Mr Pigozzo and Mr Moore were entirely successful in having the applicant’s motion dismissed, without qualification or limitation.

PRINCIPLE OF INDEMNITY – RULE 57.01(1)(0.a)

[36] Rule 57.01(0.a) permits the court to consider, in exercising its cost discretion, “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer”.

[37] In that regard, I have reviewed, with a critical eye, the costs outline included with the written cost submission tendered by Mr Pigozzo and Mr Moore. It sets forth details of the basis on which they claim substantial indemnity costs of $12,979.13, including:

• legal fees of $10,998.00;
• disbursements of $487.96; and
• applicable HST on those fees and disbursements of $1,429.74 and $63.43 respectively.

[38] The costs outline also includes information concerning the years of experience of the three lawyers involved in the motion, as well as an indication of their respective hourly rates, and corresponding partial and substantial indemnity fee rates used for calculations.

[39] In my view, the various hourly rates indicated in the costs outline are appropriate.

[40] I also am satisfied, from a review of the redacted time dockets included with the cost outline, that the work and associated time expended on the file generally was reasonable in the circumstances.

[41] Without limiting the generality of the following:

a. I think it commendable that the bulk of the preparation work was handled by the most junior of the three lawyers involved in the matter, with that associate’s initial work then being reviewed by and discussed with the more senior lawyers on a much more limited and appropriate basis, in terms of ensuring appropriate input and oversight.

b. While I am inclined to think that the overall time devoted to the matter exceeded that normally and reasonably attributable to motions of this nature, I think the approach adopted by the applicant reasonably necessitated a more labour-intensive response by counsel representing Mr Pigozzo and Mr Moore.

[42] In my view, the only questionable docketed time, underlying the claim for costs from the applicant in this proceeding, was that expended in apparent consultation with lawyers for the city of Stratford to discuss “status” and “strategy”. While communication and co-ordination with lawyers for the city may be understandable in a context where all proceedings relating to the Cooper site are subject to common case management, in my view time spent on such a manner should not be claimed in relation to the costs of motion preparation, which lawyers representing Mr Pigozzo and Mr Moore were capable of doing on their own.

REASONABLE EXPECTATIONS OF UNSUCCESSFUL PARTY – RULE 57.01(1)(0.b)

[43] The responding cost submissions and material tendered on behalf of the applicant included no cost outline of its own.

[44] In effect, the applicant accordingly chose not to supply me with any information detailing the time, disbursements and corresponding HST devoted to the matter from its perspective.

[45] As emphasized by numerous authorities,[^19] an unsuccessful party's failure to supply information concerning its own costs is an important consideration in assessing that party's reasonable expectations, and permits an inference that the resources devoted to the matter by the unsuccessful party were comparable to those expended by the successful party.

[46] Given the considerably more extensive motion material prepared and filed on behalf of the applicant in relation to the motion, I think that inference is both safe and appropriate in this particular instance.

COMPLEXITY OF PROCEEDING AND IMPORTANCE OF ISSUES – RULES 57.01(1)(c) AND RULES 57.01(1)(d)

[47] Rules 57.01(1)(c) and 57.01(1)(d) permit the court to consider, in exercising its cost discretion, “the complexity of the proceeding” and “the importance of the issues”.

[48] I agree with the submission, made on behalf of Mr Pigozzo and Mr Moore, that the motion involved issues of average complexity, which nevertheless was needlessly complicated by the applicant’s filing of extraneous and irrelevant material that reasonably had to be reviewed and considered by responding counsel.

[49] I also agree with the submission that the issues effectively raised and addressed by the motion were important, in relation to both this proceeding and the duplicative proceeding in Stratford court file no. 2896/18. Without intending to comment one way or the other on how extensive the implications of those determinations might be, it seems to me that, at the very least, the motion was decisive in terms of resolving the prospect of Mr Moore being drawn into this proceeding, and the associated complications and delays that Mr Moore’s involvement would have entailed from the perspective of Mr Pigozzo.

CONDUCT AND/OR STEPS THAT LENGTHENED PROCEEDING – RULES 57.01(1)(e) AND 57.01(1)(f)

[50] Rule 57.01(1)(e) permits the court to consider, in exercising its cost discretion, “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding”.

[51] Rule 57.01(1)(f) permits the court to consider whether any step in the proceeding was “improper, vexatious or unnecessary”, or “taken through negligence, mistake or excessive caution”.

[52] As reflected in my above comments, in my view the applicant’s motion was duplicative, unnecessary, and needlessly disrupted and delayed progress of the case managed litigation relating to the Cooper site. However, I also think such considerations already have been addressed in large measure by my decision to award costs on a substantial indemnity basis.

REFUSAL TO MAKE APPROPRIATE ADMISSIONS – RULE 57.01(1)(g)

[53] Rule 57.01(1)(g) permits the court to consider, in exercising its cost discretion, the refusal of a party to make appropriate admissions.

[54] In my view, this was/is not a relevant factor or consideration in the determination of an appropriate cost award in relation to the applicant’s dismissed motion.

ANY OTHER MATTER RELEVANT TO COSTS – RULE 57.01(1)(i)

[55] I already have addressed, in my above comments, considerations relating to the applicant’s professed “vulnerability” and impecuniosity.

[56] No other relevant matters under this heading were identified in the parties’ respective cost submissions. In particular, (and as noted above), there apparently were no relevant settlement offers in relation to the applicant’s motion.

Conclusion

[57] As many decisions have emphasized, discretionary cost determinations are far from an exact science.

[58] Again, the overall goal is to award costs in an amount that is fair and reasonable in relation to a particular proceeding or step in a proceeding, having examined various factors such as those outlined in Rule 57.01.

[59] Having regard to all the circumstances of this particular case, including the various considerations explored in detail above, and the overriding principle of reasonableness, I think justice will be served if my discretion is exercised so as to award Mr Pigozzo and Mr Moore their costs of the applicant’s dismissed motion fixed in the all-inclusive amount of $12,000.00, payable within 60 days.

[60] An order shall go accordingly.

“Justice I.F. Leach”

Justice I.F. Leach

Date: August 14, 2019

[^1]: See, for example, Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.).

[^2]: See Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.

[^3]: See Orkin, The Law of Costs, (2nd ed.), at Chapter 4, section 402.

[^5]: In Orkin, The Law of Costs, (2nd ed.), at pp. 2-33 to 2-34, the court’s cost discretion in that regard is described as follows: “An action or motion may be disposed of without costs when the question involved is a new one, not previously decided by the courts, on the theory that there is a public benefit in having the court give a decisions; or where it involves the interpretation of a new or ambiguous statute; or where there were no previous authoritative rulings by courts or decided cases on point; or where the application concerned a matter of public interest and both parties acted in complete good faith.”

[^6]: Compare, for example, the situation in Alliance Pipeline Ltd. v. Smith, 2011 SCC 7, 2011] 1 S.C.R. 160, relied upon by the applicant, wherein determination of the particular dispute before the court was clearly a test case brought to determine and end not only the dispute between the immediate litigants, but also 19 further necessary arbitration proceedings involving different litigants.

[^7]: See, again, s.1.1(6) of the BCA, wherein the Legislature makes clear the “Role of chief building officials”.

[^8]: See, for example, Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, [2011] O.J. No. 4424 (Ont. S.C.J.), and the additional cases examined and cited therein. See also Boucher v. Public Accountants Council (Ontario), supra, at paragraph 37; Guelph (City) v. Wellington-Dufferin-Guelph Health Unit, 2011 ONSC 7523 (Ont. S.C.J.), at paragraph 14; and Mayer v. 1474479 Ontario Inc., 2014 ONSC 2622, [2014] O.J. No. 1984 (S.C.J.), at paragraph 99.

[^9]: The inclination towards providing information and documentation significantly exceeding what objectively seems necessary and relevant to the circumstances has been demonstrated repeatedly in relation to motions, case management conferences, and even the circulation of draft minutes prepared simply as a non-binding aide memoire of matters discussed during case conferences.

[^10]: See, again, Boucher v. Public Accountants Council (Ontario), supra, at paragraph 37.

[^11]: See, in particular, Rules 1.04(1), and 1.04(1.1).

[^12]: See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.).

[^13]: See Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3; Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.); McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97 (C.A.); and Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.).

[^14]: See Leung v. Leung (1993), 15 C.P.C. (3d) 42 (B.C.S.C.), at p.44, cited with approval by our Court of Appeal in Authorson (Litigation guardian of) v. Canada (Attorney General), 2002 44976 (ON CA), [2002] O.J. No. 2182 (C.A.), at paragraph 5.

[^15]: See, for example: Worsley v. Lichong, [1994] O.J. No. 614 (Gen.Div.), at paragraph 5; Murano v Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p.248; and 1307347 Ontario Inc. v. 243058 Ontario Inc., supra, at paragraph 5.

[^16]: See Aker Biomarine AS v. KGK Synergize Inc., [2014] O.J. No. 968, at paragraphs 30-31.

[^17]: Again, see Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, supra, and Anderson v. St Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.). As noted earlier, one competing goal of our system of costs is to use the prospect of an adverse cost award, or unrecovered costs, as a “reality check” to discourage frivolous, unreasonable or unnecessary litigation.

[^18]: See New Solutions Extrusion Corp. v. Gauthier, 2010 ONCA 348, [2010] O.J. No. 1988 (C.A.), at paragraph 4.

[^19]: See, for example: Smith Estate v. Rotstein, 2011 ONCA 491, [2011] O.J. No. 3075 (Ont. C.A.), at paragraphs 50-51, leave to appeal refused, (2012), [2011] S.C.C.A. No. 441 (S.C.C.); and my own comments in Valastro v. London (City), [2013] O.J. No. 1353 (Ont. S.C.J.), at paragraph 12(b).