Court File and Parties
COURT FILE NO.: CV-17-577665-A1
MOTION HEARD: 20191025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Birchcliffe Core-Harbour Inc., Plaintiff
AND:
Stella Pinnock, Stainton Pinnock, and Homelife/Romano Realty Ltd., Defendants
AND:
Johnny Longo Real Estate Ltd, Third Party
BEFORE: Master B. McAfee
COUNSEL: B. Sachdeva, Counsel, for the Third Party Johnny Longo Real Estate Ltd O. Barnwell, Counsel, for the Defendants Stella Pinnock, Stainton Pinnock
HEARD: October 25, 2019
REASONS FOR DECISION
[1] There are two motions before me. The third party Johnny Longo Real Estate Ltd (Johnny Longo) brought a motion for default judgment on its counterclaim in the third party action against the defendants Stella Pinnock and Stainton Pinnock (the Pinnocks). The Pinnocks brought a motion for a declaration that the counterclaim in the third party action as against them is not proper and other relief.
[2] At the return of the motions, the parties advised that Johnny Longo’s motion has been resolved, save for costs, on the basis of a consent order that the noting in default of the Pinnocks on the counterclaim of Johnny Longo shall be set aside. An order shall go accordingly.
[3] At the return of the motions, the parties advised that the Pinnock’s motion has been resolved, save for costs, on the basis of a consent order that the Pinnocks shall deliver a defence to the counterclaim within 10 days. An order shall go accordingly.
[4] Johnny Longo seeks costs on a substantial indemnity basis in the all-inclusive sum of $23,111,71 for costs of both motions, including all attendances and costs thrown away of the noting in default of the Pinnocks. In the alternative, Johnny Longo seeks costs on a partial indemnity basis in the all-inclusive sum of $15,814.40
[5] The Pinnocks seek costs on a substantial indemnity basis in the all-inclusive sum of $11,599.03 including costs with respect to communications regarding the appropriateness of a counterclaim and the representation issue, and costs associated with both motions including the drafting of motion material and review of Johnny Longo’s motion material.
[6] Costs outlines were provided to the court at the return of the motions. I did not permit counsel for the Pinnocks to “walk in” a brief and a chart. No adjournment to file additional material was requested.
[7] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43 provides that costs are in the discretion of the court.
[8] Rule 57.01(1) of the Rules of Civil Procedure sets out a non-exhaustive list of factors that the court may consider in exercising its discretion.
[9] When exercising its discretion, the court must consider what is fair and reasonable in the circumstances (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 24).
[10] Having considered the material before me and the submissions of the parties, I am satisfied that it is fair and reasonable that the parties bear their own costs.
[11] On September 2, 2018, current counsel for Johnny Longo, Mr. Sachdeva, advised Mr. Barnwell that the Pinnocks were required to defend the counterclaim in the third party action by September 6, 2018.
[12] At that time, it was Mr. Barnwell’s position that the counterclaim was improper, that Johnny Longo’s former counsel agreed to discontinue the counterclaim, and that Mr. Barnwell was not counsel of record for the Pinnocks with respect to the counterclaim. It was Mr. Sachdeva’s position that the counterclaim was not improper, that there was no agreement with prior counsel to discontinue the counterclaim, and that Mr. Barnwell was counsel of record for the Pinnocks with respect to the counterclaim.
[13] On September 18, 2018, Ms. Pinnock wrote to Mr. Sachdeva advising that the counterclaim would not be defended because prior counsel for Johnny Longo agreed to withdraw the counterclaim. Ms. Pinnock also confirmed that the Pinnocks did not retain Mr. Barnwell to defend the counterclaim and would “have to see other counsel.”
[14] On September 19, 2018, Johnny Longo proceeded with the requisition to note the Pinnocks in default on the counterclaim in the third party action.
[15] On April 25, 2019, Johnny Longo moved ex parte before me for default judgment on the counterclaim in the third party action in the amount of $1,974.520.53. I declined to grant default judgment on the counterclaim in the third party action an ex parte basis.
[16] On June 10, 2019, Johnny Longo moved before me for default judgment on the counterclaim in the third party action on notice to the Pinnocks. Johnny Longo served the Mr. Barnwell with the motion record. The Pinnocks attended in person and requested an adjournment to retain counsel. Johnny Longo opposed the request for an adjournment. The adjournment was granted.
[17] Mr. Barnwell now agrees to act for the Pinnocks on the counterclaim in the third party action and, as noted above, there is an agreement to file a defence to the counterclaim in the third party action.
[18] Johnny Longo is not entitled to costs. Default judgment was not granted. An adjournment of the motion for default judgment that Johnny Longo contested was granted. The Pinnocks were noted in default the day after they communicated with counsel for Johnny Longo confirming their understanding that there was an agreement to withdraw the counterclaim.
[19] The Pinnocks are also not entitled to costs. There is no evidence before me that the Pinnocks took any steps to address the issue of the counterclaim or retain counsel between the email from Ms. Pinnock of September 18, 2018, and service of the motion for default judgment in May of 2019.
[20] As noted above, the issues on the motions have been settled, save for costs.
[21] The parties each bear some responsibility for the costs incurred in all of the circumstances of this matter. No costs of the motions or costs thrown away are payable by or to any party.
[22] Order to go as follows:
With respect to the motion of Johnny Longo, on consent, the noting in default of the Pinnocks on the counterclaim of Johnny Longo shall be set aside.
With respect to the Pinnock’s motion, on consent, the Pinnocks shall deliver a defence to the counterclaim within 10 days.
With respect to both motions, there shall be no costs of the motions or costs thrown away payable to any party.
Master B. McAfee
Date: October 28, 2019