Court File and Parties

Court File No.: CV-09-386369 (Toronto)

Motion Heard: 2019 09 19

Superior Court of Justice - Ontario

Re: Hilda Toscano v. Oscar L. Anselmo and The Toronto Transit Commission

Before: Master R. A. Muir

Counsel: C. Michael J. Kealy, agent for the lawyer for the plaintiff John Rosolak for the defendants

Supplementary Reasons for Decision - Costs

[1] On September 19, 2019 I heard a motion brought by the plaintiff for an order restoring this action to the trial list.

[2] I released my reasons for decision on September 23, 2019. I granted the relief requested by the plaintiff and requested written costs submissions. I have now received and considered those submissions.

[3] Both sides seek costs. The plaintiff was successful on this motion and would ordinarily be entitled to costs. However, it is my view that the plaintiff should not be awarded her costs of this motion. The plaintiff has received an indulgence. This matter was struck from the trial list and the plaintiff waited for many months before bringing this motion. I also rejected the plaintiff’s argument that the delay in bringing this motion was not a relevant factor. In addition, this action was administratively dismissed on two previous occasions and the defendants did not oppose orders setting aside those dismissals. In these circumstances, it was reasonable for the defendants to have opposed this motion.

[4] However, I do not view the circumstances of this motion as justifying a costs award to the unsuccessful defendants. Overall, the plaintiff did satisfy the two important factors of delay and prejudice. As I noted in my September 23, 2019 reasons for decision, this is not an action that has been ignored and forgotten. Much progress has been made and the case is largely ready for trial. There has been no finding of deliberate delay or other misconduct on the part of the plaintiff. I do not view this case as comparable to decisions where costs have been awarded to unsuccessful defendants on similar motions. Those cases commonly involve a finding of significant gaps in a plaintiff’s evidence and a failure to satisfy all important factors. See Evans v. Revenue Properties Co., 2011 ONSC 2132 (Master) at paragraph 31 and Williams v. Whitefish River First Nation, 2014 ONSC 1817 (Master) at paragraph 34.

[5] For these reasons, I have concluded that it is fair and reasonable that there be no order for the costs of this motion.

Master R. A. Muir

Date: 2019 10 24