Court File and Parties

COURT FILE NO.: CV-18-189 DATE: 2020 Oct 01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAUL McKERCHER, MARK McKERCHER, McKERCHER BROS. LTD., McKERCHER BROS. (BROCKVILLE) LTD., 956375 ONTARIO LTD., and 1034382 ONTARIO INC., Plaintiffs (Defendants to the Counterclaim) AND: CHRIS McKERCHER, McKERCHER HOLDINGS LIMITED, McKERCHER BROCKVILLE LIMITED, McKERCHER KINGSTON LIMITED, 2626927 ONTARIO INC., and CBHM LTD., Defendants (Plaintiffs by Counterclaim)

BEFORE: Mr. Justice Gary W. Tranmer

COUNSEL: A. Crawley and M. Fournie, for the Plaintiffs (Defendants to the Counterclaim) R. Steven Baldwin, for the Defendants (Plaintiffs by Counterclaim)

HEARD: September 17, 2020, at Kingston

Endorsement

(Motion by Plaintiffs to Amend Statement of Claim and Add Parties)

[1] At issue is the claim by the original defendants for costs thrown away resulting from the amendments.

[2] The plaintiffs brought this motion seeking leave to deliver a Fresh as Amended Statement of Claim.

[3] The lawyer for the defendants to be added consented to the motion. The new defendants Peter McKercher and his holding company did not oppose the motion. The original defendants consent to the motion so long as the conditions set out in paragraph 20 of their factum are met. The plaintiffs consent to these three conditions as set out in paragraphs 20 a, b, and c.

[4] The plaintiffs have changed counsel from counsel who started their claim. The action is at the stage where affidavits of documents have been exchanged. There have been no discoveries. The action is not set down for trial and is not on a trial list.

[5] The costs thrown away that are claimed by the defendants are for:

(a) the preparation of their original statement of defence;

(b) securing productions from the legal defendants now added and the plaintiffs’ accountant;

(c) Cross examinations conducted in support of a failed motion to set aside an ex parte Order obtained by the plaintiffs. In this regard, the presiding Justice ordered costs of those proceedings in favour of the plaintiffs.

(d) Receiving the Notice of Change of Lawyers filed on behalf of the plaintiffs, reviewing this motion to amend the statement of claim and preparing responding affidavit materials. (Defendants’ Factum para.14 and Costs Outline).

[6] In oral submissions, counsel for the defendants characterized the plaintiffs’ amended pleading as “broader” than the original. He submitted that the defendants will be required to deliver a Fresh as Amended Statement of Defence.

[7] It is my respectful opinion, that the circumstances addressed in the decision in Kings Gate Developments Inc. v. Colangelo (1994), 1994 7236 (ON SC), 17 O.R. 3d 481 (Ont. C.A.), relied upon by the defendants in support of this claim for costs thrown away, are not present in the case before me. The plaintiffs’ motion to amend is not a “last-minute application”. I do not find that in the present case the Rules permitting amendment at any stage of the proceedings is “certainly” “being utilized unreasonably” as was the case in Kings Gate.

[8] On the record before me, I cannot find that the steps for which the defendants are claiming costs thrown away are redundant or rendered useless.

[9] The costs claimed as identified in steps 1, 2, and 4 above are part of the usual trial process and the defendants would be able to claim those costs in the event of success at trial. As the defendants set out in their Factum, the amendments “means these defendants must retool and newly defend at new expense:

[10] The costs incurred in the cross examinations which I identified as step 3, have been dealt with by Justice Mew in his costs decision on the defendants’ motion to set aside.

[11] For these reasons, the claim by the defendants for costs thrown away resulting from the amendments by the plaintiffs is dismissed. As I have indicated, it is open to the defendants to claim the costs incurred in steps 1, 2, and 4. depending upon the result at trial.

Honourable Mr. Justice Gary W. Tranmer Date: 1 October 2020