Court File and Parties

COURT FILE NO.: CV-11-436012 DATE: 20200108 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TRILLIUM POWER WIND CORPORATION, Plaintiff – and – HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF NATURAL RESOURCES, THE MINISTRY OF THE ENVIRONMENT, AND THE MINISTRY OF ENERGY, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Morris Cooper and Michael Cohen, for the Plaintiff Christopher Wayland and Joshua Tallman, for the Defendant

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On December 4, 2019, I released my decision granting leave to the Defendant to amend its Statement of Defence.

[2] The action has a lengthy history. It was commenced in 2011, narrowed by the Court of Appeal in 2013, substantially revised by both parties in 2015, subject to extensive documentary exchange, production Orders, and examinations for discovery over the years. A trial record has been served and the action has been placed on the trial list.

[3] The Defendant required leave to amend under Rule 26.02(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because pleadings have long been closed. It also required leave under Rule 48.01 because the action was already on the trial list.

[4] The Plaintiff objected to the motion on the ground that the test for Rule 48.04 applied. It argued that there is nothing new in the amended Statement of Defence that could not have been included in the pleading much earlier. It was the Plaintiff’s view that this amendment will result in the need for a new Reply by the Plaintiff, possibly new discoveries, and a further delay in scheduling the trial.

[5] The Defendant argued that the test in Rule 26.02 applies to this situation, and not the test in Rule 48.04. I agreed with that submission. At para 24 of my ruling, I observed that the Defendant put forward no real explanation for the delay, but that I was willing to authorize the amendment based on the governing principle that it does not cause prejudice that cannot be compensated in costs to the Plaintiff.

[6] The Defendant now seeks costs of the motion for leave. Although the two parties are not far apart in terms of the amount of time and expense of the motion, the Plaintiff objects in principle to an award of costs to the Defendant. In their written submissions, counsel for the Plaintiff point out that, “The principle on a motion that costs follow the event is irreconcilable with the Rule 26 principle of permitting amendments which can be compensated for in costs to the party which must respond to the consequences of those amendments.”

[7] In supporting this point, Plaintiff’s counsel has referred me to the judgment of Hoy J. (as she then was) in Auchiello v Royal Bank of Canada. Her Honour granted leave to amend a Statement of Defence, but awarded costs to the plaintiff in the amount that the amended pleading was anticipated to cause him to incur. In Kings Gate Developments Inc. v Colangelo (1994), 17 OR (3d) 841, the Court of Appeal indicated that this is the appropriate approach where the action has not only been set down on the trial list but the parties are prepared for an immanent trial.

[8] Even where the trial is not immanent, the principle can be applied to an action sitting on the trial list. In Plante v Industrial Alliance Life Insurance (2003), 66 OR (3d) 74, at para 46, Master McLeod stated the general rule that, “When a claim is amended late in the process, in this case after the action has been set down for trial, the amending party should generally be liable for the wasted costs.”

[9] Counsel for the Defendant submits that the Plaintiff should have conceded that the Rule 26 test is the applicable one, thereby sparing both sides the costs of the motion for leave to amend. It is the Defendant’s view that the Plaintiff wasted time on irrelevant and weak arguments seeking to block the amendment.

[10] In my view, the arguments put forward by Plaintiff’s counsel on the motion, though ultimately unsuccessful, were not irrelevant or weak. The Defendant brought a late motion to amend and so thereby required leave. The Rules provide for leave for a reason – there is a judgment to be made as to whether it is appropriate. The Plaintiff was entitled to oppose the request for leave, arguing that it is prejudiced by the late changes.

[11] The Plaintiff was unsuccessful on the motion not because it is not prejudiced but because the court determined that any prejudice that ensues can be compensated in costs. It would illogical and unfair to the Plaintiff for it to now be told that it has to pay the costs of the motion in which it was previously told that it lost because it can be compensated in costs.

[12] That said, I am not prepared to award any costs to the Plaintiff at this stage. As I explained in my ruling of December 4, 2019, the Defendant was late in bringing forth amendments to its pleading, but those amendments are on their merits understandable. Some of them may even clarify the position of the parties and so make the entire trial more efficient for both sides. To the extent that the amendments really do require the Plaintiff to engage in further discovery or further amendment of its own pleadings, I would wait to see the extent of the costs involved.

[13] Costs awards are always discretionary under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under the circumstances, I will exercise my discretion not to award costs of the leave motion for or against either party.

Morgan J. Date: January 8, 2020