SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenneth Gamble v. Black & McDonald Limited

BEFORE: MASTER R. A. MUIR

COUNSEL: Allison Buchanan for the plaintiff Richelle Pollard for the defendant

SUPPLEMENTARY REASONS FOR DECISION - COSTS

[1] On January 22, 2020 I heard a motion brought by the plaintiff pursuant to Rule 30.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules"). The plaintiff asked for an order requiring the defendant to produce additional documents, serve a further and better affidavit of documents and re-attend at a continued examination for discovery.

[2] I released my reasons for decision on February 5, 2020. The defendant had previously agreed to re-attend for a continued examination for discovery. I ordered the defendant to serve a further and better affidavit of documents that included documents produced after the defendant's initial examination. I dismissed the balance of the requested relief.

[3] I also requested written costs submissions. I have now received and considered those submissions.

[4] Both sides seek costs. The plaintiff argues that he was partly successful and should receive a portion of his costs on a partial indemnity basis. The plaintiff also points to what he alleges is a pattern of delay on the part of the defendant in the conduct of this wrongful dismissal action.

[5] The defendant submits that it was entirely successful on the motion. It asks for partial indemnity costs of approximately $16,000.00.

[6] The court's general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, RSO 1990, c C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) allows the court to consider the result achieved in the proceeding or motion and any offer to settle. This Rule also includes a non-exhaustive list of factors the court may consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[7] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[8] In my view, the defendant was largely successful and is entitled to costs. The primary focus of the argument on this motion was the request by the plaintiff that the defendant conduct extensive additional searches of its records and produce further documents. I dismissed that requested relief.

[9] The defendant did produce additional relevant documents after its representative was examined for discovery. It did not, however, include those documents in a supplementary affidavit of documents prior to the motion. I therefore ordered it to do so. It appears that further additional documents were disclosed in the defendant's supplementary affidavit of documents served pursuant to my order.

[10] The defendant consented to the re-attendance relief.

[11] I do not accept the argument of the plaintiff with respect to misconduct on the part of the defendant. In my view, the defendant made a good faith effort to produce relevant documents. The plaintiff was sufficiently satisfied with the initial production to proceed with an examination of the defendant's representative. The defendant made further production after the examination when requested to do so by the plaintiff. There has been no serious delay with this action. The statement of claim was issued on March 15, 2019 and examinations had been held, in part, by the fall of 2019.

[12] For these reasons, it is my view that the defendant is entitled to its reasonable partial indemnity costs with some reduction for the lack of complete success.

[13] However, I view the costs requested by the defendant as grossly excessive for a simple production motion of this nature. The facts and the law were not complex. Cross-examination of the plaintiff's witness was unnecessary. The defendant's costs were far greater than the plaintiff's costs. Costs in the range of $16,000.00 for this motion would not have been in the reasonable contemplation of the plaintiff when he decided to launch this motion. I view the plaintiff's partial indemnity costs of $2,500.00 as being closer to a fair and reasonable amount in the circumstances of this motion.

[14] For these reasons, I have concluded that it is fair and reasonable for the plaintiff to pay the defendant's costs of this motion fixed in the amount of $3,000.00 inclusive of HST and disbursements.

[15] The plaintiff is unemployed. Regular court operations are currently suspended due to the COVID-19 state of emergency. For these reasons, the plaintiff shall pay these costs within 180 days after the court resumes regular operations.

2020 04 28

Master R. A. Muir