Court File and Parties

COURT FILE NO.: CV-15-525168

MOTION HEARD: 20200930

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Manulife Financial Corporation, Plaintiff

AND:

Portland Holdings Inc., Mandeville Financial Services Limited, 1459893 Ontario Inc., Maureen Charlton, Marcia Stewart, Frank Laferriere, Geoff Charlton, Bob Clark, Ray Jackson, Nick Keeler, Max Nelson, Dean Rose and Jerry Santucci, Defendants

BEFORE: Master Jolley

COUNSEL: Madison Robins and Eli Lederman, Counsel for the Moving Party Plaintiff

Justin Safayeni and Spencer Bass, Counsel for the Responding Party Defendants Portland Holdings Inc., Mandeville Financial Services Limited, Maureen Charlton, Marcia Stewart, Frank Laferriere, Geoff Charlton and Jerry Santucci

HEARD IN WRITING: 30 September 2020

REASONS FOR DECISION ON COSTS

[1] On 8 September 2020 I granted the plaintiff’s status hearing motion and imposed a timetable that would see this action set down by 30 March 2022.

[2] The parties were given until 28 September 2020 to agree on costs. They have failed to do so and I have reviewed their costs submissions.

[3] The plaintiff seeks its costs in the amount of $35,000 being “entirely successful” on the motion, in its words. This characterization ignores the fact that the plaintiff had done virtually nothing for years to move this action forward and had shown a remarkable indifference to this action since it was commenced in 2015. It sought an indulgence of the court which, in the court’s discretion, it received.

[4] Costs are likewise in the discretion of the court and success on the motion is but one factor to be considered.

[5] The defendants seek their costs of the motion in the amount of $30,225.24, despite being unsuccessful. Their position is that the status hearing was only necessary as a result of the plaintiff’s complete inaction on the file if not since its commencement, at least since April 2016.

[6] Echoing the words of Master Dash in Koepcke v. Webster 2012 ONSC 357, I find that it was reasonable for the defendants to have compelled the plaintiff to show cause which this action should not be dismissed. Further, I find some amount of costs to be warranted, given the plaintiff’s primary explanation for the delay, that the parties were engaged in settlement discussions, turned out to have been inaccurate.

[7] The parties spent virtually the same number of hours on this motion, so no quibble can be had as to time spent. I have reduced the quantum of defendants’ bill to acknowledge that they did not succeed on the motion. I find it fair and reasonable to require the plaintiff to pay the defendants costs on a partial indemnity basis in the all-inclusive amount of $20,000 payable within 30 days. I find the amount to be reasonable in light of the plaintiff’s significant inaction on the file and the volume and quality of the materials prepared by the defendants to respond to the motion.

Master Jolley

Date: 1 October 2020