Court File and Parties

COURT FILE NO.: CV-17-580236 DATE: 20201130 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Mushtaq, Plaintiff - and - Tassielli and Wethers, Defendants

BEFORE: F.L. Myers J.

COUNSEL: C. Allen, for the plaintiff M. Hoffman for the defendant Wethers

HEARD: November 30, 2020

(Transcription of Handwritten) Endorsement

[1] The plaintiff sued the driver of a rear ended car. After discovery he understood that the rear ended car had no liability. The driver offered to accept a dismissal without costs if accepted within two weeks. The plaintiff did not respond until the offer had expired. The defendant asked the plaintiff’s counsel to agree to a dismissal with costs to be subject to a later determination. The plaintiffs lawyer reasserted his offer to accept a dismissal without costs. So, the defendant has moved for summary judgment.

[2] The plaintiff agrees that the action should be dismissed on its merits. He argues the motion is unreasonably brought and that the defendant ought to have accepted a dismissal without costs when the plaintiff agreed to it a month after the defendant’s offer expired. No material costs were incurred in that month.

[3] The plaintiff says the defendant's conduct is so unreasonable he should be deprived of all costs except for the month between offer and late acceptance. Had the defendant extended his offer without costs “in good faith” the action would be dismissed with no costs and no summary judgment motion ever being brought.

[4] I find the “good faith” argument inapt. One could flip it and say, “had the plaintiff accepted the offer in time in good faith”, the same result would have occurred.

[5] Did the plaintiff delay because they were waiting for the co-defendant to admit liability? Or because the plaintiff didn't respond to counsel on a timely basis? Or because counsel did not communicate with the plaintiff or the defendant on a timely basis? Or because the plaintiff’s counsel assumed the defendant's counsel would extend the offer? I have no idea. Nor does it matter.

[6] The defendant made an offer on terms for his own reasons. The plaintiff responded as he did for his own reasons. I cannot characterize one or the other as bad faith. Neither can I say that either side ought to do something different “in good faith.” Both sides have counsel who did what they did.

[7] Before me is an action that the plaintiff admits needs to be dismissed. The plaintiff sued, got his discovery, and lost. Absent agreement to the contrary the defendant is entitled to his costs on a partial indemnity basis. I considered whether I might deprive the defendant of costs of this motion on the basis that he forced the parties to incur costs after he was willing to go out without costs. But, for all the above reasons, the parties decided on the positions they advanced and this motion was the only way to bring the matter to a resolution.

[8] Summary judgment is granted. I am satisfied that the hours and rates billed by the defendant are reasonable.

[9] The plaintiff shall pay costs to Ms. Wethers on a partial indemnity basis fixed at $17,800 all-in. Action dismissed.

F.L. Myers J.

November 30, 2020