Court File and Parties
Court File No.: CV-15-5217-0000 Date: 20210226 Superior Court of Justice – Ontario
In the Matter of the Construction Act, RSO 1990, c. C.30, as amended
Re: Alex Archdekin cob as Archdekin Landscape and Design, Plaintiff And: Cheong Meng Ko, Mi-Yeon Mia Kim, Defendants
Before: Ricchetti, RSJ.
Counsel: K. Scullion, Counsel for the Plaintiff M. Panacci, Counsel for the Defendants E. Upenieks, Counsel for Mr. Scullion
Heard: Friday, February 12, 2021
Cost Endorsement
Contents The Motion . 1 The Position of the Parties . 2 Background . 2 The issue on Jurisdiction . 4 Conclusion . 7
The Motion
[1] The Defence motion was dismissed on February 18, 2021 for the reasons set out in this court’s written endorsement. Costs were reserved.
[2] Written cost submissions were received from both parties.
The Position of the Parties
[3] The Plaintiff seeks full indemnity costs in the amount of $12,500 (all inclusive).
[4] The Defendant submits that:
a) Costs of the Plaintiff be in the cause; and
b) Costs of Mr. Scullion’s counsel be disallowed as the courts lack jurisdiction to award such costs.
Background
[5] It is clear from this court’s endorsement that the Defence request for a conference to deal with “serious conduct/ethical issue” on the eve of trial was an abuse of this court’s process as a tactic to adjourn the trial by alleging such a serious issue for the court to deal with.
[6] However, as the following summary will show, the abuse of the court process continued after the Defendants’ counsel’s letter to this court on the eve of trial.
[7] A conference call was convened with me to deal with the alleged “serious conduct/ethical issue” of opposing counsel.
[8] At the conference call, the allegation regarding the opposing counsel’s “serious conduct/ethical issue” continued to be made - the Defendants sought to pursue the issue by bringing a motion to remove Mr. Scullion, the opposing counsel.
[9] The court gave the parties a timetable and a date for the motion as set out in my endorsement. The endorsement specifically set out that the motion was to remove Mr. Scullion.
[10] Mr. Scullion was advised by the court, at the conference, that he should consider retaining separate counsel to deal with these serious allegations.
[11] The Defendant’s counsel was advised, at the conference, that unless proven, these serious allegations could attract a significant cost award.
[12] Effectively, the Defendants, by raising this allegation of a “serious conduct/ethical issue” and desire to bring a motion to obtain this relief, for all intents and purposes aborted the long-standing trial date.
[13] Mr. Scullion retained counsel, Mr. Upenieks to respond to the motion to remove Mr. Scullion for the “serious conduct/ethical issue”.
[14] The Defendants did not comply with the timetable for the motion.
[15] On the date the motion was to be served/filed, the Defendants only filed a Notice of Motion.
[16] AND the Notice of Motion did not include a motion to remove Mr. Scullion.
[17] Mr. Scullion’s counsel, wanting to bring the very serious allegations made against Mr. Scullion to an end, prepared a Notice of Motion and motion materials seeking a dismissal of the allegations and rescheduling of the trial. Mr. Scullion’s counsel was given leave to have this motion dealt with on the same return date that had been scheduled for the Defence motion.
[18] The Defendants did not file motion materials for their motion or responding materials for the Plaintiffs until either the day before or morning of the hearing. These materials were lengthy.
[19] AND these materials from the Defendants again repeated the allegations regarding the “serious conduct/ethical issue” against Mr. Scullion, despite stating that they no longer sought to have Mr. Scullion removed as counsel for the Plaintiff for the trial.
[20] At the motion, the Defendants did not want to deal with the “serious conduct/ethical issue”. The Defendants position was that Mr. Scullion’s lawyer had no standing at the motion since no motion had been brought to remove Mr. Scullion. The Defendants only wanted to deal with trial matters.
[21] The actions of the Defendants, through their counsel, was abusive, manipulative of the court process, and a warrantless disparaging of an officer of the court.
[22] No request was made to have costs payable personally by Defence counsel, but had such a request been made, it would not have been an unreasonable request.
The issue on Jurisdiction
[23] This court has broad jurisdiction to award costs.
[24] There is no dispute that this court can deal with the motion to reschedule the trial date.
[25] The central issue is whether this court has jurisdiction to award costs for Mr. Scullion’s counsel in the circumstances.
[26] Essentially, the Defence submits that the motion to remove Mr. Scullion was never brought and therefore, no costs can we awarded by this court in this proceeding.
[27] I disagree with the Defence submission.
[28] First, I accept the reasoning of Master Dash in Beatrice Leaseholds Ltd. v. Shainhouse, 2013 ONSC 5582 where, in very similar circumstances, the Master concluded that the motion had been abandoned. In this case, the Defendants sought to bring a motion to remove Mr. Scullion, a conference was held, the request was made to schedule a motion to remove Mr. Scullion, a timetable and motion date was set and then the Defendants did not bring the motion. I agree that the motion to remove Mr. Scullion was “abandoned” under the Rules and costs may be awarded against the Defendants in these circumstances.
[29] From a practical point, defendants who engage the court to deal with a specified motion, particularly the type of motion requested and scheduled in this case, should not be insulated from costs incurred by the opposing side or counsel.
[30] This court has inherent jurisdiction to award costs for an abuse of this court’s process which is clearly the type of conduct exhibited in the circumstances of this case.
[31] In Endean v. British Columbia 2016 SCC 42, [2016] 2 S.C.R. 162, the Supreme Court set out that the purpose of the exercise of the court’s inherent jurisdiction is to “empower[r] a superior court to regulate its proceedings in a way that secures convenience, expeditiousness and efficiency in the administration of justice.” Broadly, this translates into a power to prevent abuses of the court’s procedure and ensure fairness in the trial process. In other words, superior courts have an inherent jurisdiction to “inquire into and judge the regularity or abuse of its process.”
[32] In Re Michie Estate and City of Toronto et al., [1968] 1 O.R. 266 at pp. 268-9, 66 D.L.R. (2d) 213 at pp. 215-6, Stark, J., said:
It appears clear that the Supreme Court of Ontario has broad universal jurisdiction over all matters of substantive law unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms.
[33] I reject the Defence submission that this court’s inherent jurisdiction is limited by statute. The language of s. 131(1) of the Courts of Justice Act is very broad and does not so limit this court’s inherent jurisdiction – in fact, it reaffirms this court’s jurisdiction.
[34] The Defence does not point to any other statute or Rule which limits this court’s discretion to award costs against the Defendants in this case.
[35] The Defence also point to the Construction Lien Act, but this statute specifically provides that costs can be awarded against non-parties in certain circumstances. See Deep Foundations v. B. Gottardo, 2016 ONSC 2612.
[36] I conclude that I have jurisdiction to award costs against the Defendants for the “abandoned” motion to remove Mr. Scullion and the abuse the court process under the Rules of Civil Procedure, the Courts of Justice Act, the Construction Lien Act or the court’s inherent jurisdiction.
[37] There is no doubt that the Defence motion was dismissed in its entirety. The Plaintiff was successful in rescheduling this trial to the first available trial date.
[38] For the reasons set out above, I am satisfied that punitive costs are appropriate in this case given the circumstances.
[39] I am satisfied that full indemnity costs be awarded for the costs incurred by Mr. Scullion to respond to the serious, personal allegations made against him which were eventually abandoned and abandoned in a way that disregarding the court’s direction to bring the motion and abandoned in a way that the allegations continue to linger.
[40] Such an allegation, once made and in the public record (in the letter to the court and the Defendants motion materials), is extremely damaging and harmful to a lawyer and officer of this court.
[41] I see no reason why Mr. Scullion or the Plaintiff should bear any of the legal costs associated with the abusive manner the issue was raised and abandoned. All of these expenses incurred by the Plaintiff and Mr. Scullion have been entirely and unnecessarily wasted.
[42] To make matters worse, Defence counsel repeats these allegations on page 3d, again suggesting that Mr. Gilmour got off the record because of the alleged fraudulent Claim for Lien and that “Mr. Scullion must have discussed this matter including why Mr. Gilmour as removing himself from the record”. I find this shocking.
[43] I conclude that the Plaintiff and Mr. Scullion are entitled to full indemnity costs.
[44] The Defendants do not make any submissions regarding the full indemnity quantum claimed by Mr. Upenieks, counsel for Mr. Scullion and the Plaintiff on the motions.
[45] I have reviewed the Plaintiff’s Full Indemnity Costs Outline and find it to include only those reasonable expenses and disbursements incurred to deal with the issues described herein.
[46] The issues were very serious. There was a considerable amount of material prepared and to be responded to.
[47] The amount to have outside counsel to familiarize themselves with the issues, review the allegations, prepare the cross motion to dismiss the serious allegations and get this trial back on track are reasonable.
Conclusion
[48] I award the Plaintiff and Mr. Scullion costs in the amount of $12,500 (all inclusive) payable within 30 days from the date these reasons are released.
[49] If these costs are not paid within 30 days, the Plaintiff may bring a motion to strike the Defence, for which leave under the Construction Lien Act to bring an interlocutory motion, is hereby granted.
[50] Interest shall accrue on this amount in accordance with the Courts of Justice Act.
Ricchetti, RSJ. Date: February 26, 2021