Court File and Parties

Court File No.: 17-74784 Date: 2021-03-03 Superior Court of Justice - Ontario

Re: WILSON, YOUNG & ASSOCIATES INC., Plaintiff -and- CALETON UNIVERSITY and 2017 INTERNATIONAL CONFERENCE AND EXHIBITION ON URBAN SECURITY AND RESILIENCE STEERING COMMITTEE and URBAN SECURITY AND RESILIENCE CONFERENCE AND EXHIBITION CORP. c.o.b. INFRASTRUCTURE RESILIENCE RESEARCH GROUP STEERING COMMITTEE, Defendants

Before: Mr. Justice Robert N. Beaudoin

Counsel: Natalie Scott, for the Plaintiff, Wilson, Young and Associates Raymond Murray, for the Defendant, Urban Security and Resilience Corp. Jenna Anne de Jong, for the Defendant, Carleton University

Heard: In writing

Endorsement

[1] On January 6, 2021, I presided over a case conference to consolidate action 18-73380 and 17-74784. Action 17-72780 was discontinued, subject to any claim for costs by the Defendant and the Third Party.

[2] Carleton University (“Carleton”) seeks costs in the amount of $720. Carleton estimates that it unnecessarily expended approximately $1200 in legal fees in duplicative and unnecessary time as a result of the Plaintiff’s multiplicity of actions in the associated procedural complexities.

[3] Carleton further submits:

1. This is not a case where the Plaintiff was unaware of or uncertain of the role or identity of the Steering committee which it ultimately named as a Co-Defendant in action 17- 74784.
2. The Plaintiff could have sought an order to have the Steering committee added as a Defendant to the first action pursuant to rule 5.04(2) rather than commencing the second action. This would have avoided a multiplicity of proceedings and the costs associated therewith.
3. The Plaintiff could have discontinued the first action far earlier.

[4] Urban Security and Resilience Corp., (“The Steering Committee”) seeks costs thrown away in the amount of $1750 for legal fees incurred with respect to responding to the first action. While the Steering Committee was able to reuse a portion of its Defence to the first action, it claims that it threw away the entire costs relating to the Third-Party Claim brought by Carleton and approximately 30% of the costs in preparing the Defence to the first action.

[5] The Steering Committee submits:

1. The Plaintiff was entirely aware of the parties to the contract or all parties that may or may not have been privy to that contract.
2. The Plaintiff could have added it as a Defendant to the first action under rule 5.04(2) rather than commencing the second action, 17-78474. This would have avoided a multiplicity of proceedings. Instead, the Plaintiff filed the second action and did not address its error until April 2018 when it first represented that it would discontinue the first action.

[6] In response, Wilson, Young & Associates Inc. (“WYA”) submits:

1. The Steering Committee has not provided copies of their draft pleadings which were neither filed nor served. It argues that the Court is without evidence to determine if and how much or little of the drafted pleadings were used in the pleadings for the second action.
2. The Statement of Claim in the first action was issued on May 30, 2017. Carleton provided its Defence on or about August 28, 2017 followed by its Third-Party Claim against the Steering Committee on or about August 31, 2017. The Statement of Claim in the second action was served in January 2018. There was no communication from the Steering Committee during that time. WYA says this delay in serving its pleadings disentitles the Steering Committee to any costs.
3. Carleton was prepared for the first action being discontinued in February of 2018 provided that its costs for the first action would be included in any costs it may recover in the new action and that the Third Party was also agreeable to a discontinuance. The Steering Committee would only agree to a discontinuance if it received its costs.
4. WYA admits that it could have used rule 5.04(2) to add the Steering Committee as a Defendant to the first action but that the Steering Committee’ costs would be the same.
5. Carleton’s Statement of Defence and Third-Party Claim were not extensive and nor complex. In the alternative, any costs awarded should be limited to the disbursements associated with filing the Statement of Defense and the Third-Party Claim.
6. Neither party has provided a Bill of Costs which could have substantiated their claims and provided the Court with the ability to determine the reasonableness of the amounts claimed.
7. The role of the Steering Committee was an on-going issue in the litigation.
8. The Defendants were unsuccessful in their motions for security for costs and Master Fortier has yet to release her decision on costs. Should Master Fortier consider the duplicative nature of these proceedings in assessing costs, WYA submits that this would result in a double recovery for the Defendants.

Conclusion

[7] I am satisfied that the Plaintiff initiated multiple proceedings and that any duplication could have been avoided sooner. The Defendants incurred costs in responding to the first action and are entitled to some compensation. The potential liability of the Steering Committee could have been determined at the outset. Having said that, I have not been provided with copies of the pleadings and I am not satisfied that the redrafting of any new pleadings would have required a significant effort.

[8] I am mindful that the duplicative nature of these proceedings will be a factor for Master Fortier to consider when she assesses costs of the Defendants’ unsuccessful motions and this might affect any award of costs in favor of the Plaintiff. For these reasons, I accordingly order the Plaintiff to pay the Defendants their costs thrown away in the amount of $500 each. These amounts are payable in any event of the cause.

Released: March 3, 2021 Robert N. Beaudoin J.