COURT FILE NO.: CV-14-496625
DATE: 2019/08/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joseph H. Langemann v. Shane St. Pierre, Daniel Mooney and TD General Insurance
BEFORE: Master A. Graham HEARD: June 27, 2019
COUNSEL: A. Zaltz for the plaintiff (moving party)
E. Persichilli for the defendants St. Pierre and Mooney
REASONS FOR DECISION RE: COSTS
(Plaintiff’s motion to set aside registrar’s dismissal order)
[1] On June 27, 2019, I heard the plaintiff’s motion to set aside the registrar’s dismissal order of February 13, 2019. On July 4, 2019, I released my Reasons for Decision (Langemann v. St. Pierre, 2019 ONSC 4099) in which I ordered that the dismissal order be set aside and I informed counsel that if they could not agree to the disposition of the costs of the motion, they could make written submissions. I have since received and reviewed the defendants’ costs submission dated July 24, 2019 and the plaintiff’s costs submission dated August 14, 2019.
[2] As stated by plaintiff’s counsel at the hearing of the motion, the plaintiff does not seek costs of the motion. The defendants, in their submission, seek partial indemnity costs of $5,949.49 based on $5,193.90 for fees, $675.21 for HST, and $80.38 for disbursements.
[3] The defendants’ submission is essentially that their opposition to the plaintiff’s motion was justified by the plaintiff’s inaction in failing to move the action forward, and that an award of costs in their favour would reflect the indulgence granted to the plaintiff in the court’s order allowing the action to proceed. They also submit that the severity of Mr. St. Pierre’s illness warranted their opposition to the motion because of the prejudice that would result to them from the reinstatement of the action. They rely, inter alia, on the decision in Lake Avenue Resort v. Korpela, 2014 ONSC 2299, in which, after ordering that a registrar’s dismissal order be set aside, Master Hawkins awarded the costs of the motion to the defendants, stating (at para. 66):
66 . . . I have granted the plaintiff a significant indulgence. The price of an indulgence is the payment of the costs of those who have sought, unsuccessfully, to prevent its being granted.
[4] The plaintiff submits that the fact that he has been granted an indulgence in having his action reinstated does not automatically entitle the defendants to costs. The plaintiff relies on Bank of Montreal v. Newman & Sversky, 2019 ONSC 1755, in which Master Muir stated (at paras. 3 and 4):
3 I agree with the defendant that the plaintiff was given an indulgence by the court. The plaintiff failed to provide an adequate explanation for its delay in advancing this claim. However, I do not view the indulgence as being particularly significant in the circumstances of this action. The many authorities applicable to motions of this nature make it clear that prejudice is the key consideration. I made a finding that there was simply no evidence of prejudice to the defendant. The plaintiff also satisfied the other applicable factors and I found that the principle of finality was not a significant consideration. I also note that the plaintiff made several attempts to obtain the consent of the defendant to an order setting aside the dismissal but the defendant declined to provide such consent.
4 However, the plaintiff did receive an indulgence from the court. In my view, it is sufficient in the circumstances of this motion if the price of that indulgence is to deprive the successful plaintiff of its costs. It is therefore fair and reasonable that there be no order for the costs of the motion.
[5] These two cases represent two competing views on “the price of an indulgence” to a plaintiff moving to set aside a registrar’s dismissal order. In Lake Avenue Resort, the price was costs to the defendant; in Bank of Montreal, the price was to deprive the plaintiff of the costs of a motion on which it was successful.
[6] On a motion to set aside the administrative dismissal of an action, the moving plaintiff is always seeking the court’s indulgence to reinstate the action. However, where the plaintiff is successful on the motion, there is a continuum of circumstances for the court to consider when ruling on the costs. The plaintiff may be able to satisfy all of the Reid factors, in which case the defendant’s opposition to the motion will have been less justified and therefore less likely to merit an award of costs. If the defendant’s opposition to the motion is completely unfounded, an award of costs to the plaintiff may be appropriate. Or, where the plaintiff has failed to satisfy one or more of the relevant factors but the absence of prejudice was sufficient to persuade the court that the action should proceed, an award of costs to the defendant may be warranted. However, the mere fact that the plaintiff is moving to set aside a registrar’s dismissal order does not automatically mean that that plaintiff should pay the costs of the motion.
[7] Ultimately, as alluded to by Master Muir in paragraph 4 of Bank of Montreal, the issue is what disposition of costs is warranted by the circumstances of the particular motion. This simply extends to the issue of costs the contextual approach required by the Court of Appeal in addressing the merits of the motion. (See: Scaini v. Prochniki, 2007 ONCA 63 and Habib v. Mucaj, [2012] O.J. 9546 (C.A.))
[8] The plaintiff’s success on the motion was in spite of his incomplete explanation for the litigation delay and his counsel reasonably concedes that he should not be awarded costs. The context of the motion also includes the deadline being missed through inadvertence and the plaintiff moving promptly on learning of the dismissal. Most significantly, the court concluded that defendants’ counsel contributed to the delay and by extension to his clients’ own prejudice by refusing to make St. Pierre available to be examined for discovery, by waiting five months to respond to plaintiff’s counsel’s correspondence, and by failing to take steps to preserve St. Pierre’s evidence after learning of his illness. The defendants’ unsuccessful argument on the issue of prejudice militates against their claim for costs.
[9] Taking into account all of the circumstances, I conclude that there should be no costs payable on the motion. My conclusion in this regard is similar to that of Master Muir in Bank of Montreal, supra.
MASTER A. GRAHAM
DATE: August 16, 2019