COURT FILE NO.: CV-12-461008

DATE: 2020 03 20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PETER MURPHY, Plaintiff

- and -

TORONTO REGION AND CONSERVATION AUTHORITY and CITY OF TORONTO, Defendants

BEFORE: Master Todd Robinson

COUNSEL: J. Allingham, for the plaintiff

H. Paterson, for the defendants

DATE: March 11, 2020 (via teleconference)

COSTS ENDORSEMENT

[1] On February 24, 2020, I released my reasons for decision regarding the plaintiff’s motion to compel answers to both undertakings given and questions refused during the examinations for discovery of each of Toronto Region and Conservation Authority (“TRCA”) and the City of Toronto (the “City”), and further to compel re-attendance at examinations for discovery. I invited the parties to arrange a case teleconference to make costs submissions if they could not reach agreement as to costs.

[2] Both sides seek costs of the motion. The plaintiff seeks his partial indemnity costs in the amount of $3,000, including disbursements and HST. The defendants seek their partial indemnity costs in the amount of $1,000 or, in the alternative, an order that each side bear their own costs.

[3] The plaintiff submits that the motion was necessary. The defendants were examined on May 23, 2018, yet failed to answer their undertakings despite requests and a June 1, 2019 deadline to answer all undertakings as set in a prior consent timetable order. The plaintiff submits that the court should consider the defendants’ breach of the court order as a factor. Ultimately, answers to undertakings were given and certain refused questions were also answered in the defendants’ responding materials. The plaintiff submits that success on argued refusals was evenly split between the plaintiff and the defendants, but that the plaintiff was overall more successful since the outstanding answers to undertakings were given in response to the motion. Both sides have similar costs outlines, so the plaintiff submits that the appropriate costs award is $3,000 after accounting for divided success on refusals.

[4] The defendants agree that the costs outlines of both sides are effectively identical. They dispute that the plaintiff was more successful, arguing that the portion of the motion to compel answers to undertakings should not be considered since it was not argued, and was instead adjourned sine die to accommodate plaintiff’s counsel. The defendants submit that their costs were heightened by the plaintiff providing inadequate refusals and undertakings charts, without references and without grouping by issues. Revised charts were not provided until November 14, 2019, after the responding materials had already been served, resulting in updated charts being prepared for the hearing. The defendants also submit that the plaintiff’s failure to identify the loss location for 6 years is a factor that should be considered.

[5] In determining costs, Section 131 of the Courts of Justice Act, RSO 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 afford broad discretion to fashion a costs award that the court deems fit and just in the circumstances. The general principles applicable when determining costs are well settled. Costs are discretionary. Rule 57.01 sets out factors to be considered by the court in exercising that discretion, which are in addition to considering the result of the proceeding and any written offers to settle. The court must also consider the overall objective of fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (CA) at paras. 26 and 38.

[6] As a preliminary matter, while the undertakings portion of the motion was not argued and was adjourned sine die, I do not agree with the defendants that those costs should be left to a subsequent disposition of the adjourned portion. I say this for several reasons:

(a) First, it would be difficult and artificial to allocate the total motion costs as between undertakings and refusals, and reserve the portion allocated to undertakings to subsequent disposition.

(b) Second, if the plaintiff accepts the answers to undertakings given by the defendants in their responding materials, then a further hearing would become necessary solely to address costs, which is neither cost effective for the parties nor an efficient use of judicial resources.

(c) Third, in my view, the court is in a position to properly assess costs to date on the assumption that the answers given are accepted. This is not a situation where answers to undertakings had been given prior to the motion being brought and the dispute was over sufficiency of those answers. Answers were given in response to the motion. I agree with the plaintiff that, if the adjourned portion is brought back on for a hearing to argue insufficiency of any of the answers, costs of that return are readily limited to costs incurred after the hearing before me.

[7] For these reasons, I have assessed all costs of the motion to the date of the hearing before me, which are the costs claimed by the parties in their respective costs outlines submitted at the hearing.

[8] In exercising my discretion regarding costs, I have considered all relevant factors as provided in Rule 57.01 and Boucher. Without going through every factor in detail, I note the following:

(a) The costs outlines of both sides are equivalent, so the amounts claimed are evidently within the reasonable expectations of the parties.

(b) I agree that the plaintiff’s motion was necessary to compel answers to undertakings. The examinations for discovery of TRCA and the City took place on May 23, 2018. In breach of the consent timetable order, neither defendant complied with the deadline of June 1, 2019 to answer undertakings. The plaintiff’s motion record was delivered in September 2019, by which time the defendants remained in breach of the timetable order. Answers were only provided in the responding record, which was delivered in November 2019. In my view, no satisfactory explanation was provided for the defendants breaching the timetable order or needing over 17 months to answer their undertakings.

(c) I give no weight to the defendants’ submission that the plaintiff failed to provide adequate refusals and undertakings charts. In my view, it is not a factor bearing on costs. From the costs outlines filed, I am unable to determine if there was any marked increase in costs, or the extent of any such increase, arising directly from the preparation and updating of the charts. With respect to the defendants’ undertakings, TRCA’s and the City’s respective obligation to answer undertakings arose when the undertaking were given. It was not dependent on or relieved by the adequacy or inadequacy of the plaintiff’s refusals and undertakings charts: see Rule 31.07(4). It was also not the plaintiff’s responsibility to advise the defendants what undertakings they had given before those undertakings had to be answered.

(d) The majority of the motion materials were focused on the refusals, not the undertakings. There was divided success on the refusals portion of the motion, with roughly half of the refused questions either answered in responding materials or ordered answered and roughly half of the remaining refused questions either withdrawn by the plaintiff or the refusals being upheld by the court.

(e) I agree with the defendants that a number of their refusals were to questions arising from documents post-dating the loss that were not in the plaintiff’s productions and that were effectively sprung upon the defendants at their examinations. However, I agree with the plaintiff that, to the extent those questions were “examination by ambush” (as the defendants characterize it), there was ample opportunity in the approx. 15 months following the examinations on May 23, 2018 until the motion was brought to consider the documents and reconsider refusals.

(f) When the plaintiff properly identified the specific loss location is, in my view, a factor for costs of the action. The defendants’ submissions did not establish any relevance of that issue to costs of this motion.

[9] Having weighed the factors in Rule 57.01, I find that the fair and reasonable amount of costs payable by the defendants to the plaintiff in respect of this motion is $2,000, inclusive of HST and disbursements. I accordingly order that the defendants shall pay to the plaintiff such amount within thirty (30) days.

MASTER TODD ROBINSON

DATE: March 20, 2020