Court File and Parties
COURT FILE NO.: 14-61439
DATE: 2020-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELONIE HIGASHI
Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT
Defendants
COUNSEL:
Joseph Obagi, for the Plaintiff
Pat Santini, for the Defendants
HEARD: September 1, 2020
Costs Endorsement
Roger J.
[1] I heard a motion in this matter on September 1, 2020. The plaintiff then successfully argued that the jury notice should be struck. The motion was opposed by the defendants who also sought to strike certain paragraphs from the affidavit filed by the plaintiff. I struck only certain offending words from the affidavit and otherwise granted the plaintiff’s motion.
[2] The parties agree that $15,000 represents their respective partial indemnity costs for this motion.
[3] The defendants argue that costs of this motion should be reserved to the trial judge considering the novel facts and arguments surrounding this motion. Alternatively, they argue that the agreed amount for partial indemnity costs of $15,000 should be reduced to account for the mixed results and for the novelty of this situation.
[4] Costs are at the discretion of the court. All the facts, principles of indemnity applicable to costs, and circumstances of the matter are to be considered to arrive at a just result between the parties on the issue of costs. A successful party is presumptively entitled to costs, and, unless a different order would be more just, the costs of a contested motion should be fixed by the judge who heard the motion. However, novel facts and the mixed results of a motion may result in no award of costs or in a reduced award of costs.
[5] While the defendants were successful in striking a few words from the affidavit relied upon by the plaintiff, this did not result in divided success considering the issues at play on this motion and the ultimate result of the motion. Very little time was spent on the issue of striking paragraphs from the affidavit. The plaintiff was largely successful in preserving the affidavit and exhibits for the purpose for which they were filed. The plaintiff was otherwise successful on the motion.
[6] Although I preserved the defendants’ right to revisit the jury notice issue should circumstances change prior to trial, this reservation of rights does not take away from the plaintiff’s success. This reservation of rights was in response to the defendants’ argument that the future is somewhat speculative and that the Court should therefore not strike the jury notice at this time. I agree with the plaintiff that this submission was ultimately rejected; and the jury notice, which was the issue at play on this motion, was struck as requested by the plaintiff. The fact that the defendants may be entitled to revisit this question in the future, based on new facts, does not take away from the plaintiff’s success on the motion at this time.
[7] Consequently, there has not been sufficient divided success for this factor to counterbalance the scale and impact my decision on costs, and on the facts of this case, this ground is therefore rejected as a sufficient basis to rebut the plaintiff’s (the successful party) presumptive entitlement to costs.
[8] While the factual matrix which brought this motion into being is novel, this alone is not necessarily sufficient. Here, although the factual background of the pandemic is novel, there is law and jurisprudence on the subject which could have provided the parties with adequate guidance on the issues to be adjudicated (see Benedetto v. 2453912 Ontario Inc., 2019 ONSC 4309 at paras. 8-13 and Hoang v. Mann Engineering Ltd., 2019 ONSC 6383 at 111-114).
[9] Although nothing like COVID-19 has ever had to be addressed in the context of whether or not to strike a jury notice, the applicable test is well-settled law, and remains, “would justice between the parties be better served by striking the jury notice?”
[10] The cases relied upon by the defendants have not decided the issue. In fact, I see no reason why the motion judge should not decide the costs of this motion because I am best positioned to do so and because dealing with costs fairly and expeditiously is in the interests of justice.
[11] Consequently, after considering all the circumstances of this motion, I see no reason why the partial indemnity costs of this motion of $15,000 should not be payable forthwith to the plaintiff by the defendants. This seems most fair and reasonable. Order to go as such.
Mr. Justice Pierre Roger
Released: September 25, 2020
COURT FILE NO.: 14-61439
DATE: 20200925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELONIE HIGASHI
Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT
Defendants
costs endorsement
Roger J.
Released: September 25, 2020