COURT FILE NO.: CV-19-625010
DATE: 2020/03/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
James M. Wortzman and Karey Anne Dhirani for the Plaintiff
Matt Brown for the Defendant, The Corporation of the City of Markham
HEARD: In writing.
PERELL, J.
REASONS FOR DECISION – COSTS No. 3
[1] This is a reconsideration of a costs decision.
[2] The background to this reconsideration is that the Plaintiff, 1637063 Ontario Inc. (“the Medical Centre”) sued the Defendant, 2404099 Ontario Limited (“JD Development”). And it sued the Defendant City of Markham.
[3] The Medical Centre brought a motion against both Defendants. The Medical Centre, however, abandoned the motion against the City.
[4] At the return date of the motion, the City appeared. It indicated it would be seeking costs against the Medical Centre for the abandoned motion. I discharged the City from further attendance.
[5] The motion was argued between the Medical Centre and JD Development. The Medical Centre was successful.[^1] I directed the Medical Centre and JD Developments to make costs submissions if they could not agree about the matter of costs. In my decision, I said nothing about the City. Subsequently, the Medical Centre claimed costs against JD Development, and I awarded the Medical Centre costs of $45,000, all inclusive.[^2]
[6] Then, the City served the Medical Centre with its costs submissions. I waited for the Medical Centre to respond. It did not file responding submissions, and I awarded the City partial indemnity basis of $10,517.19 as against the Medical Centre.[^3]
[7] The Medical Centre received the costs decision. It now seeks a reconsideration of the decision because it submits that it was not clear to it whether the City’s costs had been submitted to me and if so, whether a response was required from it. The Medical Centre says that it was not provided with notice that it should reply to the Costs Submissions of the City or by when it should do so.
[8] In the immediate case, since I received an affidavit of service along with the City’s costs submissions, I expected that the Medical Centre, which was not a self-represented litigant, would do something if it had any concerns about the City’s bill of costs. Rule 37.09 (3) stipulates that where a motion is abandoned, a responding party is entitled to the costs of the motion forthwith, unless the court orders otherwise.
[9] The Medical Centre did nothing in response to the City’s forthwith entitlement to costs. It did not inquire whether the costs submissions had been delivered. It did not inquire about whether, how, and by when it should respond to the duly served court process. It did not bring a motion to have the court order otherwise than as provided by rule 37.09.
[10] I waited over a month for the Medical Centre to do something. Then I released a decision. A mere few days later, I received the request for a reconsideration accompanied by the Medical Centre’s costs submissions.
[11] I have reviewed the Medical Centre’s costs submissions. They do not persuade me that I should change my decision. They say nothing about the reasonableness of the claim for costs. The thrust of the submission is that the City was unreasonable and acting in bad faith in the legal positions it took after it had been sued and costs could and would have been avoided if the City had made its position clearer sooner.
[12] These submissions, however, are matters for the merits of the motion, but the motion was abandoned.
[13] In short, I am not persuaded that I should deny the City the costs it is presumptively entitled to under the Rules of Civil Procedure. I confirm my previous costs award.
Perell, J.
Released: March 10, 2020
COURT FILE NO.: CV-19-625010
DATE: 2020/03/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: March 10, 2020
[^1]: 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2019 ONSC 7511.
[^2]: 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2020 ONSC 741.
[^3]: 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2020 ONSC 1414.