Court File and Parties
Court File No.: CV-14-59881 Date: 20210208 Superior Court of Justice - Ontario
Re: Margaret Ozimkowski, Plaintiff And Luc Raymond, Defendant
Before: Madam Justice Heather J. Williams
Counsel: Shawn O’Connor for the Plaintiff Michael J. L. White for the Defendant
Heard: In Writing
Costs Endorsement
Background
1The parties agreed to partial indemnity costs of a motion in the amount of $4,000.00, all-inclusive, without prejudice to their right to request substantial indemnity costs, dependent on the motion’s outcome.
2The plaintiff had moved for an order striking a jury notice. I dismissed the motion on the basis that it was premature. The dismissal was without prejudice to the plaintiff’s right to bring the motion again, following a January 27, 2021 trial management conference.
3The defendant now asks for substantial indemnity costs of $6,000.00, all-inclusive.
Offers to Settle
4The defendant argues that on November 13, 2020, he offered to consent to an order striking the jury notice without prejudice to the parties’ right to revisit the issue once a date for the resumption of jury trials had been determined. The defendant argues that because the plaintiff did not accept this offer, the defendant was required to incur the expense of preparing responding motion materials.
5On December 1, 2020, the plaintiff offered to settle on similar terms, provided the defendant also paid some costs. On December 1, 2020, the defendant’s counsel replied that after the defendant made its November 13, 2020 offer, circumstances had changed: the defendant had been required to prepare responding motion materials and a relevant decision (the Divisional Court decision in Louis v. Poitras) had been released. On December 1, 2020, the defendant also served a factum. In his factum, the defendant requested an order dismissing the plaintiff’s motion.
6On December 3, 2020, the defendant offered to consent to a dismissal of the plaintiff’s motion without prejudice to the plaintiff’s right to renew the motion at a later date. If the plaintiff accepted the offer by 5 p.m. the following day, the defendant would seek no costs; thereafter, the plaintiff would be required to pay partial indemnity costs. The December 3, 2020 offer remained open until the commencement of the hearing of the motion.
Analysis
7Neither of the defendant’s offers triggers the cost consequences of Rule 49: the November 13, 2020 was not open for acceptance until the commencement of the hearing of the motion; the December 3, 2020 offer was not served seven days before the hearing of the motion.
8In exercising my discretion in respect of costs, however, I am entitled to consider any offer to settle in writing, regardless of whether it qualifies as a Rule 49 offer.
9Despite the defendant’s offers, I have decided that this is not an appropriate case for substantial indemnity costs. As a result of the COVID-19 pandemic, whether jury notices should be struck in cases awaiting trial in Ottawa was a swiftly moving target at the time the motion was heard. This was highlighted when, after arguing the motion on December 9, 2020, counsel appeared before me for a second time on December 14, 2020 to address new cases that had come to their attention. Then, two days later, on December 16, 2020, the Court of Appeal for Ontario granted leave to appeal the Divisional Court decision in Louis v. Poitras, referred to above, which had been released three days after the defendant served his November 13, 2020 offer to settle. Further, the defendant’s position evolved over the course of the life of the motion: the defendant initially offered to consent to an order striking the jury notice and later only to a dismissal of the plaintiff’s motion.
Disposition
10The defendant was successful and is entitled to costs, but I do not consider the plaintiff to have acted unreasonably by not accepting the defendant’s offers or otherwise.
11The plaintiff shall pay the defendant partial indemnity costs, fixed at $4,000.00 all-inclusive. The costs shall be paid within 30 days.
Date: February 8, 2021 Released: February 8, 2021
Madam Justice H.J. Williams