Court File and Parties
COURT FILE NO.: CV-20-0455 DATE: 20201215
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID BACCHUS, Plaintiff (Norman Groot for the Plaintiff)
- and -
SARA LORRAINE MUNN, JOHN DOE, JANE DOE and DOE CORPORATIONS, Defendants (Howard Cohen, Carolyn Gandy and Sabrina Waraich for the Defendants)
HEARD: In Writing
Reasons for Judgment
LEMAY J
[1] I have been case-managing this matter since the summer of this year. As part of the case management process, I issued a decision on October 27th, 2020 (2020 ONSC 6548), in which I addressed issues relating to the pre-discovery production and disclosure of documents. This decision was based on written submissions of the parties. It is now time to fix the costs for this motion.
Background
[2] The details of this action are set out in my reasons on this motion from October 27th, 2020 (2020 ONSC 6548) and my reasons on a motion on the scope of the pleadings (2020 ONSC 6650). However, there are some key facts that relate directly to this motion that should be kept in mind in fixing costs:
a) The Plaintiff and the Defendant disagree about the start date of their relationship. The Plaintiff says it began in 2017, while the Defendant says that it began in 2014. b) The Plaintiff says that much of the money that he transferred to the Defendant was specific purpose loans. The Defendant says that the money was either gifts or payment for services rendered. c) The Plaintiff will argue that he could not have intended to give the Defendant the sums that he provided, as his financial circumstances simply did not permit him to give away that much money. d) The Plaintiff elected to leave the question of whether the Defendant should be required to produce any additional documents until after discovery. The Defendant, on the other hand, wanted significant documentation produced prior to the discoveries taking place.
[3] The parties also have a disagreement about whether they were cooperating with each other in the spring as the pleadings were completed and the Affidavits of Documents were prepared. It is not necessary to resolve that dispute in order to address the question of costs on this motion, although there are some points in terms of the more general course of the litigation that I will address below.
Positions of the Parties
[4] The Defendant argues that she should be entitled to her actual costs on the basis that this motion was unnecessary and avoidable, incurred unnecessary costs for the Defendant and was another example of the Plaintiff intentionally running up the costs of the litigation. The Defendant seeks costs in the sum of $3,484.07, inclusive of HST and disbursements.
[5] The Defendant also states “it is noteworthy that Justice LeMay’s decision only makes orders directing the Plaintiff to produce documents because the Defendant has not refused production of any of the relevant documents requested.” This statement is incorrect. Paragraph 30 of my decision acknowledges that the Plaintiff is still seeking additional documentation but also observes that the Plaintiff will address any production issues through discovery.
[6] The Plaintiff argues that there should be no costs of this motion on the following bases:
a) The Defendant has failed to pay the costs orders made by Bielby J. against her. b) The Defendant did not bring a motion or serve a formal notice of motion for documentary discovery. Further, on this motion the Defendant did not serve a notice of motion, motion record with affidavit evidence or factum in support of its requests for orders from the Court. c) The success on this motion was divided.
[7] Both parties provided reply submissions to the original submissions received from the other side. I have considered those submissions in reaching my decision on costs.
Analysis and Decision
[8] The factors to be considered in setting the costs for a motion, or other step in a proceeding, are set out in Rule 57.01 of the Rules of Civil Procedure. The most relevant ones for this motion are:
a) Which party was successful? b) Did either party engage in conduct that tended to lengthen or shorten the proceeding? c) Did a party deny or refuse to admit anything that should have been admitted? d) The complexity of the issues.
[9] I will deal with all of these factors. I would start by noting that both parties’ costs submissions suffered from the same problem. Both sides’ submissions have an unfortunate tendency to focus on their complaints about the other side’s conduct of the larger litigation in this case, particularly in the time period before case management was imposed. There may be merit to both sides’ complaints. That is part of why case management should be helpful for moving this matter forward. However, these larger complaints have nothing to do with the narrow question that I have to determine, which is who (if anyone) should be entitled to costs for this motion.
[10] I should also note that the complaints advanced by the Defendant about the Plaintiff do not justify an award of full indemnity costs. The Court of Appeal has made it clear that, absent a Rule 49 offer to settle, enhanced costs are only awarded for conduct that is worthy of sanction. Davies v. Clarington, 2009 ONCA 722 (2009) 100 O.R. (3d) 66. No such conduct exists in this case. As a result, I will only consider the costs in this matter at a maximum on a partial indemnity basis.
Who Was the Successful Party?
[11] I start with the question of which party was successful. In this respect, I note that the Plaintiff did not actually seek any further productions in advance of discoveries. As a result, it is only the Defendant’s requests that I ruled on. The Defendants were successful in many, but not all, of their requests for additional documents. With some requests, particularly around financial documentation, I found that the Defendant’s requests were overly broad.
[12] As a result, the Defendant was the more successful party on this motion, but the Defendant was not completely successful. As a result, any costs award should be reduced to take this fact into account.
Conduct That Tended to Lengthen the Proceedings
[13] In my view, the Plaintiff engaged in conduct that tended to lengthen this motion. There are two concerns that I have with the Plaintiff’s conduct. First, the position that the Plaintiff took that pre-2017 documents were not relevant because the Plaintiff said the relationship only began in 2017 was an unreasonable position. The Defendant took a different view as to when the relationship began. Given this difference in the parties’ assertions, the Defendant was entitled to production of pre-2017 documents. This outcome should have been clear at the outset.
[14] Second, some of the Plaintiff’s assertions respecting his obligations to produce other documents were also concerning. For example, with respect to the trip to Paris, the Plaintiff argued that he acknowledged that the trip had taken place and, therefore, nothing would be gained by producing the documents relating to the trip. Again, the Plaintiff’s assertion in this regard ignores the fact that he does not get to choose which documents should be produced.
[15] These positions were of concern to me. More importantly, the Plaintiff’s adoption of these positions made the motion longer. This is a factor that supports an increase in the costs in this case.
Denying Facts That Should be Admitted
[16] The Plaintiff did deny the relevance of certain documents that, in my view should have been admitted. I have discussed this issue in the previous section, and do not need to add anything to that analysis.
The Complexity of the Issues
[17] The issues in this case were straightforward. It was a simple documentary production motion, done in writing in an efficient way. All of these factors favour a smaller award of costs.
[18] On this point, I should deal with the Plaintiff’s argument that no motion record or factum was served and, therefore, there should be no costs for this motion. There are two problems with this position. First, the process was imposed on the parties by me in order to ensure that the Plaintiff’s desire to have discoveries take place in early November could be accommodated. While that goal was not attained for other reasons, it was a goal that the Plaintiff had set. The Plaintiff should not be able to argue against costs because of a procedure that was designed to accommodate one of his goals.
[19] Second, and more importantly, I am not aware of any case-law that stands for the proposition that a party cannot receive an award of costs for a step in the proceeding merely because no formal notice of motion or factum was filed. The rules permit such a process to be adopted by the Court, as it was in this case.
[20] In that regard, I note that Rule 1.04 of the Rules of Civil Procedure allows the Court to apply the rules in a liberal and proportionate manner. Rule 2.03 allows the Court to dispense with compliance with a rule at any time. More specifically, this matter is being case-managed. As a result, under Rule 37.15(1.2) I have the ability to “give such directions and make such procedural order as are necessary to promote the most expeditious and least expensive determination of the proceeding.” All of these rules give me a broad scope to control the process in this case.
[21] The fact that I have chosen to exercise that power to provide for letter-based submissions on the outstanding production issues rather than requiring a full motion record is not grounds to deny a successful party their costs of that step in the proceeding. It may, however, be grounds for a reduction in the costs awarded as the proceeding will have taken less time than it would have if a full motion record had been ordered.
Conclusion
[22] I should also note that the fact that the Plaintiff has not received the costs of the motion before Bielby J. is not a reason to deny her from recovering costs for this step in the proceeding. Again, I was not cited any authority for that proposition. In any event, however, even if I had discretion not to order the Plaintiff to pay costs on that basis, I would decline to exercise my discretion. This has been (and continues to be) a hard-fought case. As a result, the incentives in the costs rules are some of the tools that the Court must be able to access in order to ensure that this action proceeds in an orderly and efficient manner.
[23] For the foregoing reasons, I am ordering that the Plaintiff pay the Defendant costs in the sum of $1,000.00 inclusive of HST and disbursements. These costs may be set-off against any costs that the Defendant currently owes the Plaintiff.
LeMay J