COURT FILE NO.: CV-12-18610 / CV-13-19389

DATE: 2019-09-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

COURT FILE NO.: CV-12-18610

Betty Jo Lynn Algra, personally and as Estate Trustee of the Estate of Danny Monteiro, deceased, Marissa Monteiro, Sierra Lynn Louise Algra and Austin Hank James Algra, all minors, by their Litigation Guardian, Betty Jo Lynn Algra

Plaintiffs

– and –

Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie, Her Majesty the Queen in Right of Canada, as represented by the Minister of Fisheries and Oceans, Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation for the Province of Ontario, and the Corporation of the Town of Leamington

Defendants

AND BETWEEN:

Danielle Feltham

Plaintiff

– and –

Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie, the Estate of Danny Monteiro, Attorney General of Canada, Her Majesty the Queen in Right of Ontario, and the Corporation of the Municipality of Leamington

Defendants

Donald W. Leschied and Myron W. Shulgan, Q.C., for the Plaintiffs

Joel Levine, for the Defendant Her Majesty the Queen in Right of Canada as represented by the Minister of Fisheries and Oceans

Giovanna Asaro, for the Defendant Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation for the Province of Ontario

Alex Szalkai, Q.C., for the Defendant the Corporation of the Town of Leamington

COURT FILE NO.: CV-13-19389

Greg Monforton, for the Plaintiff

Joel Levine, for the Defendant the Attorney General of Canada

Giovanna Asaro, for the Defendant Her Majesty the Queen in Right of Ontario

Alex Szalkai, Q.C., for the Defendant the Corporation of the Municipality of Leamington

HEARD: In writing.

DECISION ON COSTS

Thomas R.S.J.:

[1] Counsel for the plaintiffs brought a motion in each of these actions pursuant to rule 39.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking leave for the plaintiffs to file the affidavit of Captain Kevin Quinn, together with the Expert Report of April 18, 2019, along with the necessary accompanying documents and to proceed to cross-examine the remaining witnesses on their affidavits.

[2] The actions were ordered consolidated or tried one after the other and a case management judge was assigned. The balance of the unfortunate history of these actions is set out adequately in paras. 2-16 of my Decision on Motions released on June 21, 2019.

[3] I granted leave for the plaintiffs to file the expert report and affidavit sought in their motions. I also granted leave to the defendants regarding other matters raised during argument so as to limit the need for further motions and to soften the prejudice incurred by the late delivery of the plaintiffs’ report from Captain Quinn.

[4] The relief granted in paras. 28-30 of my decision are reproduced below:

[28] The plaintiffs are granted the orders in allowing for the delivery of the affidavit of Captain Quinn together with his report dated April 28, 2019, and the related documents. The defendants will be granted leave to, if necessary, deliver further affidavits of Provincial Officers Bortolon and Walker and to have them attend for further examinations. The defendants will be granted leave to deliver the affidavit of Mr. Ashby in the place of the affidavit of Gary Greer, Canadian Coast Guard Aids to Navigation. Mr. Greer is in poor health and unable to attend.

[29] The defendants’ expert, Michael Vollmer, is granted leave to provide a reply to the Quinn report. The defendants are granted leave to provide an affidavit and report from an expert in marine navigational lighting, which information formed part of the Quinn report, but only if such information is outside the expertise of Michael Vollmer.

[30] But for the additional material set out above, there will be no affidavit material delivered and specifically no further expert report from the plaintiffs unless leave is granted by the judge hearing the summary judgment motions.

[5] It is clear from my decision that the plaintiffs satisfied two of the four criteria in First Capital Realty Inc. v. Centrecorp Management Services Ltd., [2009] O.J. No. 4492. Captain Quinn’s evidence was relevant and the prejudice could be addressed by costs, terms or an adjournment. However the issue of the plaintiffs’ expert report did not only surface during cross-examinations, and there is no reasonable explanation for the delay in its production.

[6] In fact, paras. 19 and 26 set out my concern about the conduct of one of the plaintiffs’ counsel and the reason I granted the plaintiffs’ relief:

[19] The concern, however, is the indisputable fact that Mr. Leschied chose to ignore defendants’ counsels’ request to be apprised of the progress of the plaintiffs’ expert report. Further, he consented to case management orders for the delivery of the report with every intention of ignoring the deadline and delivering the report on his own timeline. He encouraged the cross-examinations to proceed leaving opposing counsel to presume that no responding expert report would be delivered.

[26] The summary judgment motions, when they are finally heard, may be determinative of the actions. The Quinn report is an essential piece of the plaintiffs’ argument. It satisfies the Capital Realty test when applied as a weighing of the relevant criteria. I am mindful that it would be an error to elevate the unreasonable explanation for the delay in tendering the evidence to a near-dispositive requirement: First Capital, para. 24. To exclude the plaintiffs’ report at this time would be to work an unfair result on the litigants for the actions taken by their counsel.

[7] As suggested in the defendants’ costs submission, the success achieved by the plaintiffs was an indulgence and on effort to achieve trial fairness. As such it is captured by the decision of Quigley J. in Mollicone v. Town of Caledon, 2011 ONSC 883.

[8] At para. 12 Justice Quigley reviewed a number of cases that considered the issue of costs in the circumstances where the moving party was granted indulgent relief. He seizes upon the language of Hawkins, D.C.J. in Fox v. Bourget (1987), 17 C.P.C. (2d) 94 that “the price of an indulgence is the payment of the costs of those who have sought, unsuccessfully, to prevent its being granted.”

[9] In considering the historical meaning of “indulgence”, Quigley J. at para. 14 suggests:

[14] … An indulgence is something that is granted as a favour or privilege. It contemplates liberal or lenient treatment to the person who receives it, embracing notions of tolerance. … It connotes notions of forbearance. Indeed, in this sense and in a legal context, it can be seen as the extension of the equity of the Sovereign’s grace and mercy to permit an oversight or failure on the part of a litigant to be overlooked.

[10] Costs are in my discretion (s. 131 of the Courts of Justice Act). I have considered the factors enumerated in Rule. 57.01. The offers to settle delivered by the plaintiffs do not assist them in this context. Despite the submissions of the plaintiff Algra, there is no reason that the plaintiffs should be the successful recipient of a costs order nor should there be no order due to mixed success. I consider the relief granted to the defendants as “terms” for the leave order as the word is used in Capital Realty.

[11] Counsel for each defendant appearing on the motions submit that the motion work was shared between them. I will adjust my costs award to reflect that sharing and arrive at an amount the plaintiffs should have reasonably have expected to pay for the granted indulgence, consistent with the principle expressed in Rule 57.01(1)(O.b).

[12] In addition, factors set out in Rule 57.01(1)(e) and (f) work against the plaintiffs in my consideration of the costs of this motion.

[13] The defendants, Attorney General of Canada, Her Majesty the Queen in Right of Ontario and the Corporation of the Municipality of Leamington will each have their costs of these motions fixed at $6,000.00 inclusive of disbursements and HST (total $18,000.00). this costs award is the obligation of both the plaintiffs Algra and Feltham. This costs order is to be paid within 30 days.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Released: September 18, 2019.

COURT FILE NO.: CV-12-18610

Betty Jo Lynn Algra, personally and as Estate Trustee of the Estate of Danny Monteiro, deceased, Marissa Monteiro, Sierra Lynn Louise Algra and Austin Hank James Algra, all minors, by their Litigation Guardian, Betty Jo Lynn Algra

Plaintiffs

– and –

Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie, Her Majesty the Queen in Right of Canada, as represented by the Minister of Fisheries and Oceans, Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation for the Province of Ontario, and the Corporation of the Town of Leamington

Defendants

AND BETWEEN:

COURT FILE NO.: CV-13-19389

Danielle Feltham

Plaintiff

– and –

Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie, the Estate of Danny Monteiro, Attorney General of Canada, Her Majesty the Queen in Right of Ontario, and the Corporation of the Municipality of Leamington

Defendants

DECISION ON COSTS

Released: September 18, 2019.