Court File and Parties

COURT FILE NO.: CV-18-601746

MOTION HEARD: 2020-02-27

ENDORSEMENT RELEASED: 2020-02-27

WRITTEN COSTS SUBMISSIONS FILED: 2020-06-19

COSTS ENDORSEMENT RELEASED: 2020-09-22

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

JULIE LAM Plaintiff

• and-

2499721 ONTARIO INC. and FELIX BEAUDOIN Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: M. Mohamed Email: mohamed@shillers.com -for the Plaintiff

A. Kagan Email: akagan@blaney.com -for the Defendants

COSTS ENDORSEMENT RELEASED: September 22, 2020

Costs Endorsement

I. Background

[1] The Plaintiff brought a motion to validate service of her Statement of Claim. The motion was resolved when Defendants’ counsel accepted service prior to the third return of the motion and the parties agreed to a timetable. The parties were unable to agree on costs of the motion and filed written costs submissions.

[2] The Plaintiff submits that costs should be awarded on a substantial indemnity scale but has filed a Costs Outline setting out partial indemnity costs in the amount of $3,199.24. The Defendants argue that no costs should be awarded or alternatively, any costs should be limited to filing and agents’ fees of approximately $500 plus a nominal amount.

II. The Law and Analysis

[3] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, the court may consider the factors set out in Rule 57.01(1). These factors include the conduct of a party which tended to unnecessarily lengthen the proceeding (Rule 57.01(1)(e)) and the failure of a party to admit anything it should have (Rule 57.01 (1)(g)).

[4] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[5] Defendants’ counsel accepted service on February 5, 2020 and the parties agreed to a timetable when they appeared before me on February 26, 2020. However, the Plaintiff’s efforts to serve her Statement of Claim began over 19 months earlier. It is not necessary to get into a detailed chronology of the Plaintiff’s efforts to serve her Statement of Claim. Suffice to say that these substantial efforts included numerous emails with the Defendants’ previous and current counsel to inquire if they had been retained and would accept service; unsuccessful attempts to personally serve the Defendant Felix Beaudoin who advised that he was “busy” and unable to meet the process server to accept service; and 2 previous court attendances on November 5, 2019 and January 21, 2020.

[6] While I make no finding as to whether the Defendants were evading service, in my view, it should not have been this difficult for the Plaintiff to serve her Statement of Claim. Mr. Beaudoin could have given his counsel instructions to accept service far sooner than he did or he could have simply made arrangements to meet the process server and accept service himself. He did not do so. This ultimately left the Plaintiff with no choice but to bring the motion and incur additional costs.

[7] The Defendants’ submission that costs should not be awarded because Defendants’ counsel eventually accepted service and the parties agreed to a timetable on the third attendance misses the point. While this is true, it ignores all of the steps which led up to that point, many of which would not have been necessary had Mr. Beaudoin made the appropriate arrangements through his counsel or on his own for the Plaintiff to effect service. I am also satisfied that the impending third return date was necessary to finally convince Mr. Beaudoin to provide instructions to accept service. Accordingly, I conclude that the Plaintiff is entitled to costs of the motion largely on the basis of the Defendants’ conduct which made the motion necessary in the first place and added further unnecessary time and costs.

[8] Having reviewed the Costs Outlines and considered all of the relevant factors, I conclude that it is fair and reasonable in the circumstances and within the reasonable expectations of the parties for the Defendants to pay costs of the motion to the Plaintiff fixed in the amount of $2,500 within 30 days. In arriving at this amount, in addition to the factors set out above, I have also taken into account the Defendants’ Costs Outline indicating that they would have sought costs of $1,025 if successful.

Costs Endorsement Released: September 22, 2020

Master M.P. McGraw