COURT FILE NO.: CV-12-0426
DATE: 2020 10 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VIVO Canadian Inc. and Dil Muhammad
Richard Bennett as agent for the Plaintiffs
Plaintiffs
- and -
Geo T.V.
Ronald Forerster and Pierre Gemston for the Defendant
Defendant
HEARD: In Writing
ENDORSEMENT
LEMAY J
[1] This is a longstanding defamation action that has not yet proceeded to trial. It was supposed to be set down for trial by the end of 2017, but has not yet been set down. The action is now the subject of a summary judgment motion being brought by the Defendant.
[2] This matter was referred to me by the triage judge on September 8th, 2020. On that date, I provided the parties with a scheduling endorsement outlining that there would be a hearing on September 14th, 2020 and that the parties could file certain material.
[3] I conducted a teleconference in this matter on September 14th, 2020 and provided the parties with directions on September 15th, 2020. One of the outstanding issues was the Defendant’s summary judgment motion scheduled for September 23rd, 2020. In my Order of September 15th, 2020, I adjourned that hearing to March 10th, 2021 on terms.
[4] As part of my September 15th, 2020 decision, I ordered the parties to provide submissions on what the terms of an adjournment should be. The outstanding issues on the terms of the adjournment were:
a) The extent to which the Plaintiffs can participate in the summary judgment motion on March 10th, 2021.
b) Whether there should be costs thrown away awarded to the Defendant as a result of the adjournment of the motion.
[5] In order to understand the basis for my Orders, some background history in this matter is necessary.
Background
a) The Action and the Original Timetable
[6] This action has been going on for some considerable time. It was started in 2012. The Plaintiffs have claimed that they have been defamed as a result of broadcasts made by the Defendant. Mr. Muhammad is the personal Plaintiff, and he is the principal and guiding mind of Vivo Canadian, the corporate Plaintiff.
[7] This action was supposed to have been set down for trial by the end of December, 2017 pursuant to a December 23rd, 2016 order of M.J. Donohue J. The provisions in the Order of Donohue J. requiring that this matter be mediated and set down for trial by the end of December, 2017 were not adhered to. The Plaintiffs have had a couple of changes of counsel in this time period. However, the fact is that the Plaintiffs did not adhere to the first timetable.
[8] The Defendants scheduled a summary judgment motion returnable in November of 2019. The materials for this summary judgment motion were served in early 2019, and Mr. Muhammad received them in mid-February of 2019. This motion was adjourned in October of 2019, and the following timetable was imposed by Doi J.:
a) Any motion record or Affidavits, including any notice of a cross-motion were due by December 20th, 2019.
b) The Defendant was to advise whether any reply materials were being delivered by January 10th, 2020 and was to deliver that material by January 30th, 2020.
c) Cross-examinations were to be completed by February 7th, 2020 for one side and March 6th, 2020 for the other side.
d) Answers to undertakings were to be completed by March 13th, 2020 for one side and April 10th, 2020 for the other side.
e) Factums were due from the moving party by April 3rd, 2020 and the Responding party by May 4th, 2020.
[9] It should be noted that the Order states that the timetable was imposed on consent. Further, it is clear that Mr. Windrim, who was counsel to the Plaintiffs at the time, had consented to the timetable. In the submissions, the parties refer to both Mr. Windrim and his law firm, Powell Litigation. I will refer to Mr. Windrim in these reasons rather than to the firm, as Mr. Windrim was the only lawyer from Powell Litigation involved in the file that I am aware of.
[10] The Defendant delivered its materials in accordance with the timetable set out by Doi J. The Plaintiffs took no steps to deliver any materials to the Court, even in the time period before the pandemic began.
b) The Events Since January 29th, 2020
[11] Mr. Muhammad states that he did not become aware of the existence of Doi J.’s Order until January 29th, 2020, and that the Plaintiffs have been prejudiced because they were not made aware of that orde earlierr. Mr. Muhammad also states that he never provided Mr. Windrim with instructions to consent to the adjournment of the motion in October of 2019. However, it is also clear from Mr. Muhammad’s Affidavit (paragraph 11) that he was aware of the timetable imposed by Doi J. by no later than January 24th, 2020. Mr. Muhammad was also aware that in January of 2020 that this motion had been adjourned to September 23rd, 2020.
[12] In the time period between March 16th, 2020 and September 14th, 2020, the government of Ontario suspended the operation of various limitation periods. Those included some deadlines for responding to materials.
[13] However, the Superior Court of Justice in the Central West Region began honouring previously booked motion dates starting on June 1st, 2020. The Courts in Central West began booking regular motions, including new motions, on July 6th, 2020.
[14] The Notice to the Profession that was issued by Ricchetti R.S.J. on June 25th, 2020 and that was in force in July of 2020 states:
Subject to the availability of judges, all motions, conferences and pre-trials currently scheduled between July 6 and September 11, 2020 will be heard on the date scheduled.
Given the limited number of courtrooms available for the balance of the year, the parties should expect that all matters (except trials) will be heard by way of a virtual conference unless a judge orders otherwise. If a party objects to a matter proceeding by way of a virtual conference, the party must raise this at the outset of the virtual conference as a preliminary motion that the matter be heard in-court.
[15] This Notice to the Profession clearly indicates that the matters scheduled from July to September were proceeding and that previously scheduled matters would continue to be heard on the dates scheduled. Indeed, the Superior Court of Justice in Brampton began honouring scheduled motion dates as of the beginning of June, 2020.
[16] Both Mr. Muhammad and Mr. Bennet have argued that they did not believe that the summary judgment motion was proceeding in September because of the Chief Justice’s adjournment of matters in March of 2020. I will return to this submission when I come to deal with the question of costs below.
c) My September 15th, 2020 Endorsement and Subsequent Events
[17] The motion for Mr. Windrim and his law firm to get off the record was scheduled by way of an urgent motion, returnable before me on September 14th, 2020. At that time, I considered both the issue of whether Mr. Windrim should be removed from the record and whether the summary judgment motion should be adjourned.
[18] Counsel for the Defendant took the position that the motion to remove Mr. Windrim from the record should be adjourned until after the summary judgment motion was heard. This would have put the Plaintiffs in the position of not wanting Mr. Windrim to be their counsel, but forcing the Plaintiffs to proceed to a summary judgment motion with Mr. Windrim as their counsel of record. This was an untenable position for the Plaintiffs and an unacceptable position for the Court, and I rejected it.
[19] Instead, I adjourned the summary judgment motion on terms that make it peremptory to the Plaintiffs. I then invited submissions on the two issues that I had set out above. Part of the submissions included the opportunity for Mr. Muhammad to provide an Affidavit explaining the facts relating to the adjournment request. I granted this opportunity to Mr. Muhammad because he and Mr. Bennett asserted that they were not aware that they could file material pursuant to the scheduling endorsement I released on September 8th, 2020.
[20] I have received and reviewed that Affidavit. However, counsel for the Defendant took the position that it might be necessary to provide a copy of the Affidavit to Mr. Windrim so that he could respond to it. By way of an endorsement dated October 1st, 2020, I advised the parties that I would consider all of their submissions before deciding whether it was necessary to hear from Mr. Windrim. As will be seen from the reasons below, it is not necessary for me to hear from Mr. Windrim. Any claim that the Plaintiffs have against Mr. Windrim or Powell Litigation can be made in separate proceedings. However, for reasons I will come to, the Plaintiffs are obligated to pay the costs thrown away in the first instance to the Defendants.
Issue #1- Extent of the Plaintiffs’ Participation in the Motion
[21] The Defendant is agreeable to allowing the Plaintiff to file various materials on this motion, and to impose a timetable. The proposed timetable is as follows:
a) The Plaintiff is to serve and file responding motion materials by December 31st, 2020.
b) The Defendant is to serve and file any reply motion materials by January 29th, 2021.
c) The Cross-examinations on Affidavits are to be completed by February 26th, 2021.
d) The Defendant is to serve its factum and brief of authorities by March 12th, 2021.
e) The Plaintiff is to serve its factum and brief of authorities by March 26th, 2021
f) The motion will be heard on April 21st, 2021 at 10:00 a.m. for three hours. This is the next available date after April 14th, 2020. April 14th, 2020 is the date on which the parties indicated that they would be ready to proceed with the motion.
[22] This timetable necessitates an adjournment of the motion currently scheduled for March 10th, 2021. Given that counsel for the Defendant is prepared to agree to this adjournment, I have vacated that appointment with the trial office. It will assist in having Mr. Bennett come on record. However, I am going to add two terms of my own to this timetable, as follows:
a) If Mr. Bennett is coming on the record, he is to do so within two (2) weeks of the release of these reasons presuming that he is going to act for the Plaintiffs. Having counsel acting as agent, but not on the record, creates a burden on the other parties (and the Court) as all documents must be served on two separate e-mail accounts.
b) The timetable will be adhered to by the Plaintiffs. For clarity, all deadlines in the timetable are peremptory on the Plaintiffs and must be adhered to regardless of whether the Plaintiffs have counsel. As I noted in my previous endorsement the motion date will proceed with or without counsel. This term requires the Plaintiffs to proceed with every step in it with or without counsel.
[23] In addition, the Defendant seeks three terms that it wishes to have imposed on the Plaintiffs’ materials, as follows:
a) An adherence to the conditions underlying the original adjournment. Specifically, the Defendant asks that the Plaintiffs be bound to their counsel’s consent to permit the withdrawal of an admission and an amendment of the Statement of Defence as well as permitting the Defendant to rely on Rules 3.04 and 24.01 of the Rules of Civil Procedure.
b) Limitations on the materials that the Plaintiffs can deliver in response to the motion. Specifically, counsel seeks to limit the documentation to that already disclosed.
c) Withdrawal of the Defendant’s factum and service of a new factum.
[24] The third condition is not controversial, in my view, and it is granted. Given that the Plaintiffs are going to be permitted to participate in the motion, a fresh factum from the Defendant will be both necessary and appropriate. The old factum may be withdrawn. I will address the other two conditions .
The Conditions for the Previous Adjournment
[25] The Plaintiffs argue that they never agreed to the terms of the Order of Doi J. and, therefore, should not be bound to it. I reject this submission for two reasons.
[26] First, if the adjournment of the October 2019 date had not been agreed to by Mr. Windrim, then this matter would have already proceeded to a summary judgment motion in October of 2019. It is clear from the record before me that the Plaintiffs’ materials would not have been prepared for that motion, and the Plaintiffs would not have been ready for that motion. The Plaintiffs have had the advantage of this first adjournment. They should not be able to ignore the terms of the adjournment that they don’t like merely because they claim after the fact that they did not know about those terms or agree to them.
[27] Second, and more importantly, none of the conditions that were agreed to for the previous adjournment are unreasonable. With respect to the amendment of the Statement of Defence, Rule 26.01 permits amendments at any time, unless those amendments would result in prejudice that is not compensable by costs or an adjournment. The matter has already been adjourned twice, the Plaintiffs are aware of the amendment and have failed to identify any prejudice that they would suffer. This condition is imposed. The Defendant is also free to withdraw its admission. However, the new Statement of Defence must be served and filed within thirty (30) days, and the changes are limited to the previously agreed ones.
[28] Similarly, the Defendant has identified two other Rules that the motion will be proceeding under. Given that the Plaintiffs have not even begun to prepare their materials, there is no prejudice in permitting the Defendant to proceed under these additional rules. Again, this condition is imposed.
The Documentary Disclosure
[29] This condition is, in my view, different. It appears to me that the Defendant wishes to substantially limit the amount of information that the Plaintiff can rely upon at this motion. In particular, the Defendant asks that the Plaintiff not be permitted to provide any evidence in the following categories:
a) Any new documents that should have been disclosed in the Plaintiffs’ Affidavit of Documents or should reasonably have been disclosed by the time the action was to have been set down for trial prior to the December 31, 2017 deadline in the original timetable order in this action;
b) Any new information or documents that should have been provided in response to the questions asked on examination for discovery of the Plaintiffs; or
c) Any new information or documents that are responsive to the undertakings made by the Plaintiffs at the examination for discovery.
[30] I am not persuaded that these conditions should be ordered as part of the adjournment of the summary judgment motion. In particular, there is no explanation as to what prejudice the Defendants will suffer if new documentation is produced by the Plaintiffs as long as that documentation is produced promptly. However, this matter must move forward to a resolution and it is incumbent on the Plaintiff to move promptly.
[31] To that end, everything that the Plaintiffs are relying on in the summary judgment motion must be produced within thirty (30) days of today’s date, if it has not already been produced. Any questions of the reliability of this evidence and/or potential costs (or other) sanctions associated with the failure to disclose the evidence earlier are to be left to the judge hearing the motion.
The Terms of the Adjournment
[32] I will set out all of the terms of the adjournment in one place at the end of the decision, as the terms will include provisions in respect of costs, which I now turn to.
Issue #2- Costs Thrown Away
[33] In addressing this issue, there are two sub-questions that must be answered:
a) Should the Plaintiffs pay any costs thrown away or should their former counsel Mr. Windrim be responsible for any costs thrown away in this case?
b) If the Plaintiffs are responsible in the first instance for these costs, what should the quantum of these costs be?
[34] I will deal with each issue in turn.
a) Should The Plaintiffs Pay the Costs or Should Mr. Windrim Pay Them?
[35] I start by noting that Mr. Windrim was not a party to this part of the proceeding. His firm was removed from the record on September 14th, 2020, and was not invited to make submissions on the issues addressed by this endorsement. Indeed, the Plaintiffs have refused to provide Mr. Windrim or his firm with Mr. Muhammad’s Affidavit. As a result, I cannot make any order against Mr. Windrim at this stage. I could, however, invite him to provide both legal and factual submissions on the issues.
[36] I have decided that I do not require Mr. Windrim’s participation at this stage because any costs thrown away should be payable by the Plaintiffs in the first instance. This finding does not preclude a claim by the Plaintiffs against Mr. Windrim for those costs.
[37] In their materials, the Plaintiffs make significant allegations against Mr. Windrim and his law firm. Those allegations include not telling the Plaintiffs about the timetable of Doi J. until January 29th, 2020, and not keeping the Plaintiff up to date on file activity after Mr. Windrim’s services were terminated on January 29th, 2020. The Plaintiffs also allege that Mr. Windrim did not have instructions to adjourn the November, 2019 motion date
[38] Even if I accept that the Plaintiffs’ factual assertions are correct, there are two significant reasons why these assertions do not assist the Plaintiffs in their position:
a) There is no explanation as to why the Plaintiffs did not take any steps to deal with these matters in the time period between January 29th, 2020 and the motion before me on September 14th, 2020.
b) Mr. Muhammad was aware of the motion in November of 2019, and that it had to be adjourned. As a result, he would have known that it was being adjourned to another day as far back as November of 2019. This fact is clear on the materials filed by the Plaintiffs.
[39] I will expand on the first point. Mr. Muhammad’s September 17th, 2020 Affidavit states (in part):
By December 14, 2019, I lost confidence in Mr. Windrim and his firm and I terminated our retainer. I retained Mr H. Richard Bennett of Ricketts Harris LLP on January 29, 2020.
Attached to Mr. Windrim’s email of January 24, 2020 was a copy of the Order of Mr. Justice Doi. As I indicated above, although I was informed by Mr. Windrim in October 2019 about an adjournment of Geo TV’s motion, Mr. Windrim did not disclose to me any information about an Order or a specific timetable, I was completely unaware of Justice Doi’s Order until I received Mr. Windrim’s January 24, 2020 email.
[40] The Plaintiffs were aware of the adjournment of the November, 2019 motion date and of the new day by no later than January 23rd, 2020. It is also clear that the Plaintiffs had retained Mr. Bennett as their new lawyer by no later than January 29th, 2020.
[41] The Plaintiffs now argue that they have been prejudiced by Mr. Windrim’s conduct in the following ways:
a) By Mr. Windrim’s alleged failure to discuss the adjournment of the November, 2019 motion date with them.
b) By Mr. Windrim’s alleged failure to advise the Plaintiffs of the timetable for materials for the next motion date of September 23rd, 2020, which caused them to miss a number of deadlines for the filing of materials.
c) By Mr. Windrim’s alleged failure to communicate with the Plaintiffs about events in their case that were going on after Mr. Windrim’s retainer had ended on January 29th, 2020.
[42] The problem with these assertions comes from the facts I have set out above. The Plaintiffs had decided to end Mr. Windrim’s retainer and retain Mr. Bennett by no later than January 29th, 2020. It would have been a simple matter for the Plaintiff to serve a notice of change of solicitors, which would have ensured that the Plaintiffs had communications directly between Defendants’ counsel and their counsel of choice. I have no good explanation in the materials before me as to why this change was not made by the Plaintiffs in a timely way.
[43] Mr. Muhammad’s Affidavit contains statements that he had pancreatic cancer in February and March underwent surgery in April. This diagnosis still does not explain why a notice of change was not served at the end of January of 2020. It also does not explain why nothing was done in the time period between July and September of 2020, as Mr. Muhammad’s Affidavit indicates that he had fully recovered by July of 2020.
[44] This brings me to the issue of the prejudice that the Plaintiffs claim has accrued between January of 2020 and the hearing before me on September 14th, 2020. The Plaintiffs seek to hold Mr. Windrim to account for this prejudice. This submission ignores two key facts. First, the Plaintiffs were aware of the prejudice, and the fact that it was mounting. Second, the Plaintiffs themselves did nothing to address this prejudice, in spite of the fact that it was open to them to do so.
[45] For example, the Plaintiffs could have moved before the Court for a variation to the timetable. Certainly, there was nothing preventing this motion from moving forward between January 29th, 2020 and March 16th, 2020, when the Courts closed because of the pandemic. This is a period of nearly seven (7) weeks. Even with Mr. Muhammad’s cancer diagnosis, Mr. Bennett would have been able to proceed with this type of relatively straightforward motion.
[46] Then, the Courts reopened for regular motions at the beginning of July of 2020. It was, again, open to the Plaintiffs to seek an amendment to the timetable at any point between July 6th, 2020 and September 14th, 2020. Instead, the Plaintiffs chose to do nothing.
[47] The Plaintiffs were, technically, self-represented in this time period. However, Mr. Bennett has been assisting them throughout the litigation. It should have been clear to both the Plaintiffs and Mr. Bennett that there were opportunities to come to Court and mitigate any prejudice that the Plaintiffs were suffering.
[48] This brings me back to the assertion that was made on September 14th, 2020 that the Plaintiffs and Mr. Bennett thought that all matters had been adjourned, including the September 23rd, 2020 motion. This submission is not based in any actual facts before the Court, and is not supported by either the Notice to the Profession or the Court’s activities since July. I view the statements by Mr. Muhammad and Mr. Bennet that they thought the September 23rd, 2020 date had been adjourned as being unsupported in the record, and I reject them.
[49] The Plaintiffs may have a claim against Mr. Windrim and Powell Litigation for the costs that are ordered as a term of this adjournment. That is a matter that the Plaintiffs can pursue against Mr. Windrim. However, it must be remembered that the Defendant is blameless when it comes to the adjournment request. The Defendant should not be drawn into the quarrel between Mr. Windrim and the Plaintiffs. Instead, on the facts of this case, the Defendant should be indemnified by the Plaintiff for the costs thrown away as a result of the adjournment.
[50] Finally, the Plaintiff has drawn my attention to the decision of J. Quinn J. in Mans v. State Farm Mutual Insurance Co. ((1996) 1996 CanLII 8050 (ON SC), 32 O.R. (3d) 786). In that decision Quinn J. had a motion by the Plaintiffs’ counsel to remove themselves from the record on the eve of trial. Quinn J. granted the motion, but directed that the costs be payable by the counsel being removed from the record. A key part of Quinn J.’s findings were that the Plaintiffs’ new law firm did not know about the trial date until six days before the trial was to start.
[51] The case before me is clearly distinguishable from the facts in Mans. The Plaintiffs’ and their new counsel were aware of the motion date in January of 2020, almost eight months before it the scheduled date for the motion, being September 23rd, 2020. Nothing was done by the Plaintiffs or their new counsel. The Plaintiffs should be required to compensate the Defendant for the costs thrown away.
b) The Quantum of Costs Thrown Away
[52] Costs thrown away are generally awarded on a substantial indemnity (or in the family law context full recovery) basis. The reason for substantial indemnity costs is that the purpose of an award of costs thrown away is to indemnify the party for the wasted time for the preparation of the trial or other motion. See Caldwell v. Caldwell 2015 ONSC 7715 at para. 11 and the cases cited therein.
[53] Counsel for the Defendant seeks the following costs thrown away:
a) Costs associated with negotiating and obtaining the timetable in December of 2019 in the sum of $5,561.10, presumably inclusive of HST.
b) Costs associated with the preparation of the Defendant’s factum in the sum of $27,873.00 again presumably inclusive of HST. I understand that this is half of the costs associated with the preparation of the factum.
[54] I am gravely concerned by the size of both of these requests, in particular the request for the costs thrown away relating to the factum. I will set out my concerns with both sets of costs below. As a preliminary matter, however, I note that it is only the costs thrown away that are to be compensated. If most of the research has been done and is useable in the second motion or appearance, then the time spent is not a cost thrown away.
The Timetable
[55] These costs relate to the negotiating and obtaining of the timetable in December of 2019. The timetable is a two-page document that was submitted to the Court on consent. The Defendant’s counsel had two lawyers of various seniority as well as a law clerk involved in the discussion with opposing counsel, the discussion with their client and the preparation of the materials on a consent adjournment and a timetable. In my view, this is a clear case of over lawyering at least an issue in a file. In addition, the preparation of the materials for this timetable would have been a simple exercise that should have taken no more than an hour or two (at most) and should have been done by a law clerk and reviewed by junior counsel.
[56] I also observe that the agreement to this timetable was not entirely wasted, as it put the Defendant in a position where it is able to insist on much stricter terms for the current adjournment.
[57] When all of these factors are considered, I am prepared to provide a cost allowance of $1,500.00 inclusive of HST and disbursements for costs thrown away in the preparation of the timetable, including the filing of the motion.
The Costs of the Factum
[58] The Defendant seeks costs for the preparation of a factum. I did not receive a detailed bill of costs. All the information that I have is that the Defendant is seeking half of their costs. The submissions of counsel state:
b) Costs thrown away associated with the preparation of the defendant’s factum dated April 3, 2020 in the amount of $27,873.00. The factum filed was based on the current record. Since the plaintiff will now file additional materials, the factum will have to be redone. Depending on the nature of the material the plaintiffs file, the revisions may be substantial. The defendant therefore seeks half the costs associated with preparing its factum dated April 3, 2020 as costs thrown away.
[59] The bill of costs states:
Preparation of the Factum of the Defendant dated April 3, 2020, including conducting legal research and analysis, drafting, revision, service, and related internal and external correspondence and meetings.
[60] The bill of costs then sets out the total number of hours each lawyer spent on the factum, and then the mathematical rates relating to the costs of the factum. Based on the submissions set out at paragraph 58, I understand that this is half the time spent on the factum. This means that the factum cost just over $55,000.00 to prepare on a substantial indemnity basis. The actual rates (rather than the substantial indemnity rates) would suggest that the factum cost $61,000.00 to prepare. I have taken counsel at their word that the time set out in the bill of costs is half of the time associated with the preparation of the factum.
[61] This is an unreasonable amount of time to take to prepare a factum, and an unreasonable cost associated with the preparation of the factum. I start from the premise that an eight billable hour day is a reasonable working day. This would require a lawyer to be in the office for more than eight hours in a day. If I accept that premise, then I am left with the following information:
a) A Mr. Milton, who was an articling student, spent 40 hours on this factum in total. The bill of costs shows 20 hours for Mr. Milton and I have doubled the amount to get to the total hours Mr. Milton spent. In other words, Mr. Milton has spent a full five days working on this factum.
b) Mr. Gemson spent fifty (50) hours on this factum. Again, the bill of costs shows 25 hours for Mr. Gemson, and I have doubled it to get to the total number of hours that Mr. Gemson spent on it. In other words, Mr. Gemson has spent more than six days working on this factum.
c) Mr. Foerster spent twenty-four (24) hours working on this factum. Again, the bill of costs shows 12 hours for Mr. Foerster, and I have doubled it to get to the total number of hours that Mr. Foerster spent on the factum. After the articling student spent a week on the factum, and the more junior counsel spent more than a week on the factum, Mr. Foerster spent a day and a half on the factum.
d) Ms. Herd, the law clerk, spent eight (8) hours working on the factum. Again, the bill of costs shows 4 hours for Ms. Herd, and I have doubled it to get to the total number of hours that Ms. Herd spent on the factum.
[62] I don’t have the advantage of having read the factum. However, the amount of time spent on this factum is completely disproportionate to almost any issue that could be being addressed by way of a summary judgment motion. This is particularly true when it is remembered that this is a three hour summary judgment motion. It is not a multi-day summary judgment motion.
[63] In addition, the factum is merely one part of the total materials being placed before the Court for a summary judgment motion, but counsel has spent more than two weeks of staff time on preparing this factum alone. The time may very well have been spent. However, the Court should not be requiring the other side to compensate for this time as costs thrown away.
[64] It is reasonable for the Defendant to seek some costs thrown away on the motion for preparation of the factum. It is possible that arguments will need to be refined or the facts changed to reflect what is in the Plaintiff’s motion materials. A reasonable allowance for those changes is $2,500.00 inclusive of HST and disbursements.
[65] Finally, there is the issue of whether these costs should be paid before the motion or at the conclusion of the action. I am of the view that the costs are to be paid within thirty (30) days of today’s date.
Issue #3- Costs of the Appearance on September 14th, 2020
[66] I start by observing that, in my endorsement of September 15th, 2020, I directed that the costs submissions for the appearance be addressed separately, in a separate document. I only received one set of submissions from each side.
[67] The Defendant seeks additional costs as follows:
a) For responding to and attending on the motion to remove Mr. Windrim and Powell Litigation from the record, substantial indemnity costs in the sum of $16,200.45, or partial indemnity costs in the sum of $10,800.30.
b) For the negotiation of the terms of the adjournment, costs to the date of the original submission in the sum of $12,238.00.
The Motion To Remove Mr. Windrim and the Adjournment
[68] I start with the attendance on the motion to remove Mr. Windrim and Powell Litigation from the record. Usually, costs are awarded to the successful party. The materials from the Defendant do not address the question of whether they were the successful party. That is probably because they were NOT the successful party.
[69] The Defendant took the position that I should not order Mr. Windrim’s removal until after the summary judgment motion had been heard. I rejected that position because it was an impractical position and should not have been advanced. It is not reasonable to expect counsel of record to remain on the record when his client has lost confidence in him. This is especially true when it is remembered that the summary judgment motion may dispose of the entire action.
[70] The Defendants were successful in having some terms imposed on the adjournment of the September 23rd, 2020 motion, but they also took an impractical position on that adjournment. Specifically, Defendant’s counsel argued that the adjournment should be left to the motions judge hearing the summary judgment motion on September 23rd, 2020. Given the position being taken by Mr. Muhammad and the underlying facts, the motions judge would have had no choice but to adjourn the matter. The only effects of waiting until September 23rd, 2020 to confirm this adjournment would have been to increase the costs thrown away and to waste the time of the motions judge hearing the matter.
[71] There is, however, another way in which the Defendant could claim at least some costs for this appearance. Specifically, the Plaintiff in his request for an adjournment was seeking an indulgence. Normally, this would be a factor that I would consider in assessing the costs. However, in this case I have to balance that factor against the unhelpful positions that the Defendant took in the hearing of the motion. That balancing convinces me that no costs should be awarded for either part of this motion.
[72] For these reasons, I am not prepared to award the Defendant costs for the motion to remove Powell Litigation and Mr. Windrim from the record or for the motion to adjourn the September 23rd, 2020 hearing.
Negotiating the Terms of the Adjournment
[73] I am not prepared to provide either party with any costs for negotiating the terms of the adjournment. I reach that conclusion for two reasons.
[74] First, neither party was completely successful. The Plaintiff is being required to pay some costs, when he wanted to have responsibility for those costs transferred to Mr. Windrim and Powell Litigation. The Defendants got only a small fraction of the costs that they were looking for, and only some of the terms that they were looking for. As a result, success was divided and there should be no costs.
[75] In addition, both parties took positions that were unhelpful and not justified on the facts of the case before me. In the Plaintiffs’ case, it was Mr. Muhammad’s unwillingness to acknowledge the obvious fact that he had significant personal responsibility for the delays in this case, and for the need to adjourn the September 23rd, 2020 hearing. In the Defendant’s case it was both their unreasonable costs requests and their attempt to obtain terms for the adjournment that were not justified.
[76] As a result, there will be no costs for either side for the negotiations of the terms of the adjournment or the submissions before me.
Conclusion
[77] For the foregoing reasons, I am ordering as follows:
a) The Defendant’s summary judgment motion scheduled for March 10th, 2021 is further adjourned to April 21st, 2021.
b) The timetable set out at paragraph 21 of this decision will apply to this summary judgment motion.
c) The deadlines set out in the timetable at paragraph 21 are all peremptory to the Plaintiffs and must be adhered to regardless of whether the Plaintiffs have counsel or not.
d) If Mr. Bennett is coming on the record, he is to do so within two (2) weeks of today’s date.
e) The Statement of Defence may be amended in accordance with the amendments that have previously been outlined, as long as the Amended Statement of Defence is served and filed within thirty (30) days of today’s date.
f) The Defendant is permitted to rely on Rules 3.04 and 24.01 of the Rules of Civil Procedure in the hearing of the summary judgment motion.
g) The Defendant may withdraw its factum and serve and file a new factum in accordance with the timetable set out at paragraph 21.
h) If the Plaintiffs are relying on additional documentation for the summary judgment motion, that documentation must be served within thirty (30) days of today’s date. This deadline is also peremptory on the Plaintiffs and applies with or without counsel.
i) The Plaintiffs shall be jointly and severally liable for the payment of $4,000.00 inclusive of HST and disbursements on account of costs thrown away in this matter. Those costs are to be paid within thirty (30) days of today’s date.
[78] All of these conditions are terms of the adjournment of the September 23rd, 2020 motion date.
[79] I am not seized of this matter. In the event that there are any further issues in respect of the scheduling of this matter or the terms of the adjournment, the parties are free to seek an appointment from the trial office in the usual course.
LEMAY J
Released: October 13, 2020
COURT FILE NO.: CV-12-0426
DATE: 2020 10 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VIVO Canadian Inc. and Dil Muhammad
Plaintiffs
- and -
Geo T.V.
Defendant
ENDORSEMENT
LEMAY J
Released: October 13, 2020