Court File and Parties

Court File No.: CV-12-443718 Date: 2020 06 08

Superior Court of Justice - Ontario

Re: CRAIG HURST, Plaintiff - and - JAMES HANCOCK, DARWIN PRODUCTIONS INC. and TRADEPOINT 360 INC., Defendants

Before: Master Todd Robinson

Counsel: T. Gleason / R. Glass, for the moving parties, Graham Partners LLP, Graham, Wilson & Green and HGR Graham Partners LLP, defendants in CV-13-493058 J. Figliomeni / S. Babwani, for the plaintiff and the plaintiff in CV-13-493058

Heard: In writing

Costs Endorsement

[1] On October 25, 2019, I heard the motion of Graham Partners LLP, Graham, Wilson & Green and HGR Graham Partners LLP (collectively, “HGR”) for trial together of this action and the action in CV-13-493058 (the “Solicitor Negligence Action”) with common documentary and oral discoveries. For reasons released February 24, 2020, I granted HGR’s request for trial together, but dismissed the request for common documentary and oral discoveries. I invited the parties to make written submissions as to costs if they could not reach agreement.

[2] I have now received and considered the costs submissions of HGR and Mr. Hurst. Both argue they were substantially successful on the motion and are entitled to costs. HGR seeks costs from Mr. Hurst on a partial indemnity basis in the amount of $12,000, inclusive of disbursements and HST. Mr. Hurst agrees that $12,000 is fair and reasonable, but submits that amount should be ordered payable by HGR. In my view, both HGR and Mr. Hurst overstate the extent of their success on the motion.

[3] HGR submits that the majority of the relief sought by HGR was granted and that there are no exceptional circumstances in this case that would justify departing from the general principle that costs should follow the event. HGR argues that Mr. Hurst’s opposition to the trial together relief was “ill-conceived and resulted in unnecessary costs”, since the “gateway” factors set out in Rule 6.01(1) were clearly satisfied and Mr. Hurst should properly have conceded the appropriateness of trial together. HGR further argues that, while common discoveries were not ordered, success was divided on that issue given the court’s acknowledgement that there was a reasonable basis on which HGR could seek to examine James Hancock and Darwin Productions Inc. (the “Hancock Defendants”) since their evidence will bear on disposition of the Solicitor Negligence Action.

[4] HGR’s costs outline claims $17,144.07 in partial indemnity costs and disbursements for the motion, including both the original return in 2017 and the adjourned portion of the motion argued before me in 2019. HGR acknowledges that the figure includes HGR’s costs of relief sought in 2017 for intervenor status in the Hancock Defendants’ prior summary judgment motion. That relief was resolved on consent and was the subject matter of Master Sugunasiri’s order dated April 19, 2017. In arriving at the $12,000 all-inclusive costs figure sought, HGR has discounted an amount representing time spent on the relief for intervenor status in the summary judgment motion.

[5] Mr. Hurst submits that he is entitled to costs of the motion because he was successful on what he characterizes as the most crucial issue: preserving Mr. Hurst’s right to claim solicitor-client privilege over information exchanged between Mr. Hurst and HGR. Mr. Hurst argues that HGR was unsuccessful in its “ill-conceived argument” that Mr. Hurst had already waived privilege. Mr. Hurst also submits that the portion of HGR’s motion adjourned pursuant to Master Sugunasiri’s order dated April 19, 2017 was not heard within 90 days following determination of the Hancock Defendants’ summary judgment motion and, accordingly, Mr. Hurst is entitled to his costs of HGR’s motion as provided in Master Sugunasiri’s order. Mr. Hurst further submits that HGR should be awarded no costs in any event since intervenors are neither liable for nor entitled to costs.

[6] 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), 71 OR (3d) 291 (CA) at paras. 26 and 38.

[7] I have considered all relevant factors in exercising my discretion regarding costs. Without going through every factor in detail, I note the following:

(a) Mr. Hurst’s view of Master Sugunasiri’s order is, in my view, overly technical. The Court of Appeal’s decision overturning summary judgment was released on June 11, 2019. The adjourned portion of HGR’s motion was brought back on for a hearing on September 5, 2019, within 90 days of the Court of Appeal’s decision. HGR’s motion was adjourned at my initiative so that it could be heard concurrently with three related motions, two of which were Mr. Hurst’s motions. HGR did not request that adjournment. HGR complied with the intent of Master Sugunasiri’s order. The fact that no formal extension was ordered for the deadline previously ordered for hearing HGR’s adjourned motion is, in my view, immaterial given the circumstances of the adjournment. I accordingly do not agree that Mr. Hurst is entitled to his costs of the motion pursuant to Master Sugunasiri’s order, irrespective of the outcome.

(b) Given the impact of determinations made at trial in this action on the Solicitor Negligence Action, I accept HGR’s submission that HGR’s motion was necessary and important to HGR. I agree that HGR may have been prejudiced if an order for trial together had not been made. That relief was unsuccessfully opposed by Mr. Hurst.

(c) Notwithstanding the views of each side, there was divided success on the motion. HGR sought trial together with common discoveries, but only succeeded in obtaining an order for trial together. I held that there was no reasonable or fair means by which to order common discoveries, since the evidentiary record was insufficient to support any determination on waiver of solicitor-client privilege. Conversely, while Mr. Hurst succeeded in opposing common discoveries, he unsuccessfully opposed trial together. I rejected Mr. Hurst’s arguments that there were essentially no common questions of fact or law in common between the two proceedings and that an extension of HGR’s intervenor status on the summary judgment motion would satisfy HGR’s desire to be heard at trial in this action.

(d) While I accept that solicitor-client privilege was a key issue for Mr. Hurst, I do not accept that it was the most crucial issue on the motion. In my view, trial together was more substantive relief than common discoveries in all the circumstances. Accordingly, while there was a level of divided success, HGR was overall more successful.

(e) I am not satisfied that all time claimed by HGR in its costs outline clearly relates to the motion. For example, the first three time entries include “preparation of detailed chronology including next steps”, preparation for and attending a conference call with HGR’s client, and correspondence with counsel for the Hancock Defendant’s regarding the status of the “underlying action”. These appear to be costs of the action, although may well fall within the reduction already made by HGR in its costs claim.

(f) I do not disagree with the case law cited by Mr. Hurst holding that intervenors are not ordinarily awarded costs nor have costs awarded against them. However, I do not view that case law as having any bearing on costs of HGR’s motion for trial together and common discoveries. While HGR has been consistently referenced by the parties as the “intervenors” throughout materials and submissions, HGR’s claim for costs of this motion is not in any capacity as intervenors. HGR’s trial together and common discoveries relief was sought solely as defendants in the related Solicitor Negligence Action. Had intervention in the Hancock Defendants’ summary judgment motion not been sought as part of the motion, the term “intervenor” would have had no place in this motion. The intervenor relief was addressed on consent in 2017 and costs for that portion of the motion are not claimed by HGR.

[8] Having weighed the factors in Rule 57.01 , I find that the fair and reasonable result is that Mr. Hurst pay to HGR the sum of $8,500, inclusive of HST and disbursements, for HGR’s costs of the motion.

[9] With respect to timing of payment, HGR submits that costs should be fixed and payable within 30 days in accordance with the presumption in Rule 57.03(1)(a). I agree that, in general, costs should be payable forthwith unless there is a proper basis not to require immediate payment: Wine v. Fisher, [1998] OJ No 4756 (CA). It has been held that the policy of Rule 57.03 for immediate payment is designed to bring home to litigants the expense of motions, so should be departed from only in special circumstances: Theodorou v. Bruno at para. 3.

[10] Nevertheless, in my view, the current 2019 novel coronavirus (COVID-19) pandemic gives rise to special circumstances that I feel must be considered in this case. The province is only now beginning to reopen after nearly three months of effective shut-down to help prevent the spread of COVID-19, which has resulted in widespread financial hardship. This action and the Solicitor Negligence Action have been ongoing since 2012 and 2013, respectively. The costs award fixed for HGR’s motion is nominal compared to the legal costs incurred by the parties to date. I am also mindful that Mr. Hurst is an individual plaintiff, not a corporation. While the presumption in Rule 57.03(1)(a) is payment of costs within 30 days, in my view, the broad-reaching financial impact of the COVID-19 pandemic is a relevant factor in determining the timing of payment, particularly where there is no apparent prejudice to HGR from deferring payment of costs in the circumstances of this case.

[11] I accordingly order that Mr. Hurst shall pay to HGR their costs of this motion fixed in the amount of $8,500, inclusive of disbursements and HST, payable within thirty (30) days following termination of the emergency declared in O Reg 50/20 pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act, RSO 1990, c. E.9. This order is effective without further formality.

MASTER TODD ROBINSON DATE: June 8, 2020

cited_cases: legislation: - title: "Courts of Justice Act, RSO 1990, c. C.43, s. 131" url: "https://www.ontario.ca/laws/statute/90c43" - title: "Rules of Civil Procedure, RRO 1990, Reg 194, Rule 57.01" url: "https://www.ontario.ca/laws/regulation/900194" - title: "Rules of Civil Procedure, RRO 1990, Reg 194, Rule 57.03(1)(a)" url: "https://www.ontario.ca/laws/regulation/900194" - title: "Emergency Management and Civil Protection Act, RSO 1990, c. E.9, s. 7.0.1" url: "https://www.ontario.ca/laws/statute/90e09" - title: "O Reg 50/20" url: "https://www.ontario.ca/laws/regulation/200050" case_law: - title: "Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291 (CA)" url: "https://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.html" - title: "Wine v. Fisher, [1998] OJ No 4756 (CA)" url: "https://www.canlii.org/en/on/onca/doc/1998/1998canlii5213/1998canlii5213.html" - title: "Theodorou v. Bruno" url: "https://www.canlii.org/en/on/onsc/doc/2007/2007canlii49491/2007canlii49491.html"