Court File and Parties

COURT FILE NO.: CV-16-124 DATE: 2019-12-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

C.H. and X.H. Plaintiffs

– and –

Her Majesty the Queen in Right of Ontario and OPP Sergeant Randy Cota Defendants

Counsel: Cara Valiquette and Jason Herbert, for the Plaintiffs Daniel Zacks, for the Plaintiffs regarding limitations defence Joshua Tallman, for the Defendant Her Majesty the Queen in Right of Ontario Norman Groot, for the Defendant OPP Sergeant Randy Cota

HEARD: Written submissions on costs

ENDORSEMENT ON COSTS

wood j.:

[1] The plaintiffs and the defendant Cota have provided written submissions for costs on reciprocal motions. The Crown did not participate in this stage of the proceedings. The plaintiffs moved for leave to amend their statement of claim. The defendant Cota opposed this motion primarily on the ground that his outstanding motion for summary judgment should be heard first. His motion seeking that relief was based on a Limitations Act defence. The amendments sought by the plaintiffs added new causes of action not subject to the provisions of the Limitations Act.

[2] As a preliminary matter, the defendant asked that the plaintiffs’ cost submissions not be considered as they were submitted late. The order of October 31 provided that “The parties may file written costs submissions within thirty days of the date of release of these reasons”. The reasons were released on October 31, 2019. The court office received the plaintiffs’ submissions on December 2 which was 32 days from October 31. However, November 30 was a Saturday. Rule 3.01(1)(c) provides that where the time for doing an act expires on a holiday the act may be done on the next day that is not a holiday. Therefore, the plaintiffs were on time in submitting their material.

[3] The plaintiffs were successful in obtaining leave to amend the statement of claim, however a timetable was imposed for the hearing of the summary judgment motion and for discoveries. Normally costs would follow the plaintiffs’ success. However, I am concerned by the fact that the new allegations made by the plaintiffs change the basis of the claim from harassment extortion and intimidation to battery and sexual assault. The defendant argues strenuously that had there been a basis for these claims they would have been made when the action commenced. He concludes therefore that they are nothing more than an attempt to circumvent the Limitations Act.

[4] The defendant believes that this fact is so obvious that he should be entitled to the costs of the motion notwithstanding the plaintiff’s clear success. I do not agree with this proposition. On a motion to amend it is not open to the court to weigh the evidence or speculate on the parties’ chances of success. Leave to amend is to be granted absent non-compensable prejudice. However costs are discretionary.

[5] I am troubled by the timing of these new and more serious allegations. I am therefore of the view that the award of costs on these motions should follow the final result in the action. I therefore award them in the cause.

[6] The plaintiffs’ bill of costs seeks partial recovery of $6866.50. the defendant has not submitted a bill of costs but seeks $6,000.00 for preparation and attendance on the motion. I fix the costs at $6,500.00 inclusive of disbursements and HST, payable in the cause.

Justice T.M. Wood

Released: December 12, 2019