(KITCHENER) COURT FILE NO.: C-434-17
DATE: 20201022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Claire Ross and Ryan Campbell
Plaintiffs
– and –
Andrej Filip, Elena Filipova, Lawyers Professional Indemnity Company Operating as TitlePLUS Title Insurance, The Corporation of the Township of Mapleton, Patty Wright, Chief Building Official, Township of Mapleton and Daniel Swedlo, Building Inspector, Township of Mapleton
Defendants
Patrick Kraemer, for the Plaintiffs
Patrick Snelling, David Contant and David Silver, for the Defendants Andrej Filip and Elena Filipova
No other Defendants appeared
Corrected Decision – January 7, 2021
THE honourable justice j. r. henderson
COSTS ENDORSEMENT
[1] This is my endorsement regarding the cost consequences arising out of my written Reasons for Decision on Motion dated September 21, 2020. This costs endorsement should be read in conjunction with those Reasons.
[2] As set out in my Reasons, there were five motions before me on September 15, 2020. Motions No. 1, No. 2, and No. 4 were adjourned without a date on terms. I heard submissions on Motion No. 3, the plaintiffs’ motion to strike the affidavits and the motion record of the defendants on Motion No. 4, and I decided that motion by way of my Reasons. Motion No. 5, the defendants’ motion for directions regarding costs, was abandoned by the defendants, and the parties agreed to an order dismissing Motion No. 5 with the issue of costs to be argued at a later date.
[3] The plaintiffs now request their partial indemnity costs of Motion No. 3 in the amount of $9,491, and the defendants request their partial indemnity costs of Motion No. 3, including costs thrown away, in the total amount of $7,059. Regarding Motion No. 5, the plaintiffs request their costs of $310.
[4] I accept that Motion No. 3 was important for both the plaintiffs and the defendants. The plaintiffs had obtained a large default judgment against the defendants, Andrej Filip (“Filip”) and Elena Filipova (“Filipova”), and the plaintiffs have been attempting to enforce the judgment. The defendants brought Motion No. 4, a motion to set aside the default judgment, and filed several affidavits in support.
[5] If the plaintiffs had been fully successful on Motion No. 3, the evidence of the defendants on Motion No. 4 would have been struck, and the defendants would not have succeeded on Motion No. 4. Thus, the decision on Motion No. 3 could significantly affect the outcome of these proceedings.
[6] In my view, the plaintiffs and the defendants had mixed success on Motion No. 3. The motion arose out of attempts by the plaintiffs to cross-examine the defendant, Filip, and three other affiants on the affidavits filed in Motion No. 4, and to examine the defendant, Filipova, as a witness.
[7] The plaintiffs’ attempts to examine Filip and Filipova were complicated when Filip and Filipova refused to attend for in-person examinations as required by the Notices of Examination. Instead, because of the Covid-19 pandemic, Filip and Filipova insisted that their examinations be conducted by video conference. The examinations of the other affiants did not proceed because of the dispute as to the manner of the examinations of Filip and Filipova.
[8] In my Reasons I found that the request of the plaintiffs to strike all of the evidence in Motion No. 4 was too draconian in the circumstances. Rather, I provided directions to the parties that would allow for the examinations of the defendants and the other affiants. Therefore, the plaintiffs were not entirely successful on this motion, as the plaintiffs did not obtain the primary relief requested in Motion No. 3.
[9] However, I accept that the plaintiffs received partial relief as I provided a mechanism for the plaintiffs to proceed with all of the examinations. Specifically, I found that the examinations of Filip and Filipova should proceed by video conference, and I ordered that the other three affiants were to attend in person for their examinations.
[10] The defendants’ position is that the plaintiffs should have delivered a simple motion for directions, rather than a motion to strike the pleadings. I accept that defendants’ counsel had made this suggestion to plaintiffs’ counsel prior to the delivery of Motion No. 3, and I accept that it would have been the preferred course of action.
[11] However, it is important to recognize that in Motion No. 3 it was the defendants who were requesting a modification of the Rules of Civil Procedure; the plaintiffs’ motion sought compliance with the Rules. Thus, the directions provided in my Reasons provided a benefit for Filip and Filipova. Having received this benefit, it is imprudent for the defendants to be further rewarded with a costs order.
[12] Moreover, given that the defendants Filip and Filipova had insisted that the examinations be conducted in a manner that was different from the strict interpretation of the Rules of Civil Procedure, it was certainly open to the defendants to bring their own motion for directions, which the defendants chose not to do. In the face of a dispute about the process, the defendants left it to the plaintiffs to bring a motion.
[13] Still further, as I stated in my Reasons, Motion No. 3 dealt with novel circumstances resulting from the Covid-19 pandemic. I reiterate that both sides were acting in good faith with respect to the examinations, and that there was a legitimate dispute as to the manner in which the examinations should be conducted in the present environment.
[14] For these reasons, I find that there should be no costs to either side regarding Motion No. 3.
[15] Regarding Motion No. 5, I am informed that this was a motion brought by the defendants and later abandoned by the defendants. The plaintiffs are entitled to their modest partial indemnity costs, which I fix at $300 all-inclusive.
[16] In summary, there will be no costs to the plaintiffs or the defendants on Motion No. 3. On Motion No. 5, the defendants Filip and Filipova will pay the costs of the plaintiffs fixed at $300 all-inclusive, payable within 30 days.
J. R. Henderson J.
Released: October 22, 2020
(KITCHENER) COURT FILE NO.: C-434-17
DATE: 20201022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Claire Ross and Ryan Campbell
Plaintiffs
– and –
Andrej Filip, Elena Filipova, Lawyers Professional Indemnity Company Operating as TitlePLUS Title Insurance, The Corporation of the Township of Mapleton, Patty Wright, Chief Building Official, Township of Mapleton and Daniel Swedlo, Building Inspector, Township of Mapleton
Defendants
Costs endorsement
J. R. Henderson J.
Released: October 22, 2020