COURT FILE NO.: CV-19-00619987-000
DATE: 2020/01/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
STEDFASTS INC. Plaintiff
- and -
DYNACARE LABORATORIES Defendant
Counsel: Jason Bogle and Eric Blau for the Plaintiff Christine Muir and Breanna Needham for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Stedfasts Inc. sues Dynacare Gamma Laboratory Partnership ("Dynacare"). Confronted with myriad claims and remedial requests, Dynacare brought a motion pursuant to rules 21.01(1)(b), 21.03(d) and 25.11 of the Rules of Civil Procedure,[^1] for an order striking Stedfasts' Amended Statement of Claim in its entirety, without leave to amend on the basis that the statement of claim disclosed no reasonable cause of action and on the basis that the pleading is frivolous, vexatious and an abuse of process. In the alternative, relying on rules 21.01(3)(d) and 25.11, Dynacare sought an order striking in whole or in part the following paragraphs of the Amended Statement of Claim as frivolous, vexatious, and an abuse of process; namely: paragraphs 1-5, 17-19, 21-22, 24, 26-27, 33(a-h), 24-35, 38, 40-42, 44(a, d-f, h-n), 45-46, 48-58, 60, 61-69, 73-78, 80-87, 90-93, 96-97, 98(a-d, f), 99, 103-104, 106-112, 114, 116-142, 147, 150-153, 155-164, and 167.
[2] I ordered Stedfasts' Amended Statement of Claim should be struck in its entirety. I granted Stedfasts leave to plead a claim for breach of contract for the remedy of damages.[^2]
[3] Dynacare seeks its partial indemnity costs in the amount of $9,929.48 comprised of $7,522.80 for counsel fee, $977.96 for HST and $1,428.72 for disbursements.
[4] Notwithstanding that it was the unsuccessful party, Stedfasts seeks partial indemnity cost in the amount of $12,966.56, all inclusive, for the motion. It submits that because it was granted leave to plead a claim for breach of contract it had a substantial measure of success. It submits that there are special circumstances that would justify awarding costs against the successful party, including the circumstances that Stedfasts' counsel was allegedly not cooperative in attempting to resolve the motion outside the courtroom and the circumstances that Stedfast's delayed the progress of the litigation and was granted several indulgencies and professional courtesies as it changed counsel. In my opinion, however, special circumstances were not established.
[5] I am not persuaded that anything other than a conventional costs award to the successful party is appropriate in the immediate case. The motion to strike the pleading was necessary, and I do not believe the fate of the pleading could have been resolved short of the education provided by the motion itself.
[6] The losing party on a motion to strike a pleading ought to reasonably expect that he or she will have to pay for the education when leave to amend the pleading is granted. Given the problems of the pleading in the immediate case, the costs claimed by Dynacare is fair and reasonable.
[7] This litigation is now going to move forward, and, in my opinion, the appropriate costs award in all the circumstances is to grant Dynacare its costs of $9,929.49 - payable to it in any event of the cause.
Perell, J.
Released: January 15, 2020.
COURT FILE NO.: CV-19-00619987-000
DATE: 2020/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
stedfasts inc.
Plaintiff
- and -
DYNACARE LABORATORIES
Defendant
REASONS FOR DECISION - COSTS
PERELL J.
Released: January 15, 2020
[^1]: R.R.O. 1990, Reg. 194. [^2]: Stedfasts Inc. v. Dynacare Laboratories, 2019 ONSC 6626