COURT FILE NO.: CV-17-57513
DATE: 20191227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth Tilden
Plaintiff
– and –
The Corporation of the City of St. Catharines
Defendant
J. Olchowy, for the Plaintiff
B. Cox, for the Defendant
HEARD: November 21, 2019; Costs submissions due December 20, 2019
THE HONOURABLE JUSTICE R. B. REID
decision on costs of motion
[1] The plaintiff (“Mr. Tilden”) moved to amend his statement of claim. His claim is against the defendant (the “City”) in negligence arising from an order issued by the City under the Building Code Act. The claim was commenced on May 11, 2016, and proceeded through examinations for discovery in March 2018 followed by answers to undertakings exchanged in April and May, 2019.
[2] In general, the proposed amendments purported to provide additional particulars, and to add a claim for aggravated and/or punitive damages.
[3] Rule 26.01 of the Rules of Civil Procedure provides that pleadings may be amended at any stage of an action on such terms as are just, unless the result would be to cause prejudice that could not be compensated by costs or an adjournment. As such, there is a presumption that leave to amend is to be given.
[4] Amendments should be in compliance with the applicable pleading rules, including the requirement to plead material facts and the prohibition of pleading evidence. In general, pleadings should not be used as an opportunity for persuasive advocacy.
[5] The City objected to some of the proposed amendments since they were not a concise statement of material facts and/or improperly pleaded evidence or constituted submissions. As well, the City submitted that further discovery would be necessary if the amendments were allowed which would require further expense.
[6] The proposed amendments were substantial, increasing the six-page statement of claim to an anticipated 38 pages. However, the extent of proposed amendments in and of itself is not a valid basis for objection under rule 26.01.
[7] In this case, the defendant identified 59 objectionable subparagraphs in the proposed amended statement of claim. In my endorsement of November 22, 2019 following the motion, I determined that 41 of the proposed new subparagraphs did offend the rules of pleading, and therefore those proposed amendments were not allowed. As a result, the plaintiff’s request for leave to amend was allowed in part.
[8] I also ordered that the City be compensated on a substantial indemnity basis for subsequent additional costs incurred by it as a result of the amendments in any event of the cause.
[9] I encouraged the parties to resolve the issue of costs of the motion consensually, but they were unable to do so. As a result, written submissions were filed according to the timetable provided in my endorsement.
[10] The City seeks substantial indemnity costs in the all-inclusive amount of $2,217.63, based on 7.5 hours of docketed time.
[11] Mr. Tilden submits that partial indemnity costs should be awarded to him in the all-inclusive amount of $4,262.69 based on 14.7 hours of docketed time, or in the alternative that no costs be ordered.
[12] My discretion to award costs arises from s. 131 of the Courts of Justice Act. The factors which guide the exercise of my discretion are found in rule 57.01 of the Rules of Civil Procedure. I have reviewed those factors in considering my decision.
[13] It is not unusual that pleadings require amendment, particularly when initially prepared by a self-represented litigant, as was the case here. I have already noted the presumption that leave be granted as contemplated by rule 26.01. Normally, no costs would be awarded to the moving party in an amendment motion, and likewise the terms of amendment would usually compensate the opposite party for additional costs incurred as a result of the amendment.
[14] In this case, the nature and content of the proposed amendments resulted in the objection of the City. Based on my decision on the motion, that objection was justified in part.
[15] It is not appropriate for the plaintiff to receive any amount as to costs. A substantial portion of the proposed amendments were not proper pleadings and justified the City’s response.
[16] The City was therefore partially successful in its objection to the application for leave to amend. Success is a presumptive factor in considering an award of costs.
[17] The matter was not of any special complexity. The amendments may well be important to Mr. Tilden in his prosecution of the action (to the extent that they are made within the required rules of pleading), and many of the proposed amendments were not opposed by the City. It is important to the City to have the matter properly pleaded in order to respond with an appropriate defence. Both the hours docketed by the City and hourly rate used were reasonable, and well within a range of costs that the plaintiff could reasonably be expected to pay.
[18] Based on the foregoing, an award payable by Mr. Tilden to the City on a partial indemnity scale is appropriate. The conduct of the plaintiff was not such as to justify the quasi-punitive substantial indemnity scale. Reducing the City’s request to the partial indemnity scale, the total becomes $1,695 inclusive of HST. That sum should be reduced in view of the divided success. Therefore, there will be an award of costs payable by the plaintiff to the defendant within 30 days, fixed in the all-inclusive amount of $1,400.
Reid J.
Released: December 27, 2019
COURT FILE NO.: CV-17-57513
DATE: 20191227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth Tilden
Plaintiff
– and –
The Corporation of the City of St. Catharines
Defendant
DECISION ON COSTS OF MOTION
Reid J.
Released: December 27, 2019