Court File and Parties

Court File No.: CV-20-75 Date: 2021-03-08 Ontario Superior Court of Justice

Between: 1604945 Ontario Inc., Plaintiff – and – Metrolinx, Defendant

Counsel: Gregory Govedaris & Mathew Glowacki, for the Plaintiff Christel Higgs & Chantelle Dallas, for the Defendant

Heard: February 4 and 8, 2021

Before: The Honourable Mr. Justice James W. Sloan

Costs of the February 4 and 8, 2021 Motions

[1] Metrolinx seeks substantial indemnity costs in the amount of $55,682.46 and alternatively seeks partial indemnity costs in the amount of $37,270.75.

[2] Their claim for substantial indemnity costs is multifaceted and includes submissions that the Plaintiff’s solicitor’s conduct throughout the proceedings was “reprehensible, scandalous and/or outrageous” for numerous reasons, including the following: (a) He was abusive and impugned the integrity of Metrolinx’s female counsel on numerous occasions, (b) He failed to provide relevant legislation and case law that has not changed in any substantive way for over a century, (c) He failed to provide any relevant law regarding prescriptive easements over railway lands, notwithstanding that Metrolinx’s counsel had provided him with two cases in September 2020, and again set out the law in it’s Factum dated December 3, 2020, and (d) His failure to produce the relevant law can only be viewed as intentional.

[3] In addition, Metrolinx claims the Plaintiff’s conduct unnecessarily lengthened the proceedings because: (a) It failed to provide availability for cross examinations after repeated requests, (b) After seeking an adjournment of the original motion for two months, it failed to address the issues identified by Metrolinx in the intervening period, (c) It argued points that were not relevant to the status quo motion, (d) It failed to provide answers to undertakings in a timely fashion, (e) It brought an unnecessary refusal motion, and in particular, sought Metrolinx’s real estate file for the subject lands and sought production of all of the voluminous documents compiled for the two large infrastructure projects, and (f) It failed to respond to Metrolinx’s draft agreed statement of facts.

[4] Metrolinx submits that the plaintiff’s vexatious conduct included: (a) Advising Metrolinx’s counsel on two occasions that the plaintiff would be seeking costs personally against her, (b) Erroneously accusing Metrolinx’s counsel of threatening to report plaintiff’s counsel to the LSO and then failing to explain that accusation during cross-examination of the deponent, (c) Threatening Metrolinx with two contempt motions which were never pursued, (d) Claiming in written correspondence that Metrolinx’s answers to refusals were an abuse of process, (e) Sending Metrolinx’s legal counsel a demand letter and copying the Kitchener courthouse, (f) Sending a letter to the court on January 30, 2021 accusing Metrolinx’s legal counsel of “sharp practice” and committing “a fraud on the court”, and (g) Accusing Metrolinx’s employee (Netopilik) on making up evidence.

[5] In addition to the Rules of Court and the LSO’s Rules of Professional Conduct, Metrolinx relies on Young v. Young, 1993 Carswell BC 264, Glenn v. Osmun, 2014 ONSC 3086 and Standard Life Assurance Co. v. Elliott, 2007 CarswellOnt 3236.

[6] At para. 260 of the Young case, the Supreme Court of Canada stated: 260 The Court Of Appeal’s order was based on the following principles, with which I agree. Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; nor is the fact that part of the cost of litigation may have been paid for by others. The Court of Appeal meticulously considered all the proceedings in light of these principles to arrive at his conclusion that only partial solicitor-client costs were justified.

[7] At paras. 14 – 17 of the Glenn case the court stated: 14 Rule 6.01(1) of the Law Society Of Upper Canada, Rules Of Professional Conduct, provides that “[a] lawyer shall conduct himself … in such a way as to maintain the integrity of the profession.” Rule 6.03(1) provides that a lawyer shall be courteous and civil with all persons with whom he has dealings in his practice. Of particular relevance is the commentary under the rule which provides that “[a] lawyer should avoid all ill considered and uninformed criticism of the … conduct … of other lawyers.” Finally, Rule 6.03(5) prohibits a communication to another lawyer or any person “[t]hat is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.”

15 The Principles of Civility for Advocates provides further guidelines for the conduct of litigation by lawyers. Paragraph 27 states: “Counsel should not attribute bad motives or improper conduct to opposing counsel, except when relevant to the issues of the case and well-founded.” Paragraph 28 advised “Counsel should avoid disparaging personal remarks or acrimony towards opposing counsel.” Finally, paragraph 29 suggests, “Counsel should not … seek to create an unjustified inference based on opposing Counsel’s statements or conduct. “Counsel who appear before Ontario courts are expected to comply with the Rules of Professional Conduct, and should also adhere to the Principles of Civility, or risk sanctions by the court.

16 The motion was not complex but I agree that counsel for the defendant raised a number of issues that had to be answered by counsel for the plaintiff. I also find that this motion was unnecessary and that counsel for the defendant should have consented to the amendments to the statement of claim. Counsel for the defendant lengthened the proceedings and added to the costs. He only provided a response and outlined his position when he filed his responding motion materials. This is unacceptable conduct that has to be condemned.

17 I accept that the defendant has to pay costs on a substantial indemnity basis after March 11, 2014 as the plaintiff received satisfaction on all its demands pursuant to Rule 49 of the Ontario Rules Of Practice.

The Plaintiff’s Position

[8] One of the plaintiff’s submissions was that costs of this matter should be left to the trial judge.

[9] The plaintiff further submits that the court should take into account the following: (a) The defendant filed seven pages in its cost submissions (inclusive of schedule C) when the court ordered such submissions were to be limited to 5 pages. (b) With respect to substantial indemnity costs, there was no reprehensible conduct and no offer to settle. (c) Metrolinx filed its motion record with the court indicating that the plaintiff had consented to have its motion heard in writing when such was not the case. This led to the threat of involving the LSO. (d) Although the plaintiff’s lack of consent to a discovery plan may have been worthy of sanction, this motion was withdrawn on December 10, 2020, on a “without cost basis”. (e) Metrolinx refused to produce the engineer Netopilik for examination, forcing the plaintiff to issue and serve a summons. (f) Metrolinx refused to respond to the plaintiff’s suggestion/request to deliver a joint book of authorities. (g) The defendant delayed delivery of the responding material and failed to provide availability for cross examination/discovery. (h) The plaintiff refused to produce a representative of Metrolinx with a legal background and in response to the request, brought a substitution motion. (i) The December 10, 2020 date for the substitution motion was a “to be spoken to” date only. While the plaintiff’s refusal motion did proceed, the plaintiff was successful on three out of its four requests and no costs were ordered. (j) The order following the December 21, 2020 conference call, specifically states that there is no order as to costs. (k) The matters were only of moderate complexity.

[10] The plaintiff submits that a reasonable expectation for costs of the motion would be approximately $15,000.

Ruling

[11] It would be extremely unfair to, and unrealistic, to expect the trial judge to deal with the costs of the numerous issues argued before me. Also, the practice, if possible, is to deal with costs at each step of the way. Therefore, I decline to leave the issue of costs to the trial judge.

[12] The plaintiff’s suggestion that the appropriate quantum of costs should be in the neighbourhood of $15,000 is a gross underestimate.

[13] The material filed by both parties fills the better part of two bankers’ boxes. In addition to the main motion to maintain the “status quo”/“obtain an interlocutory injunction”, the court dealt with motions for a further and better affidavit of documents, substitution of a witness for examination, discovery plans, production, answering undertakings/refusals, striking out parts of an affidavit and striking out part of a factum.

[14] Four facta were served by the plaintiff between September 29, 2020, and January 25, 2021, on the status quo motion alone. Metrolinx, of course, had to respond appropriately, including doing research with respect to all the facta.

[15] Both counsel blame the other for not cooperating to move the matter forward and unfortunately both counsel blame the other for conduct that they feel transcends the Rules of Professional Conduct.

[16] One of the reasons the court limits cost submissions to five pages is to avoid being swamped with large briefs containing voluminous emails and faxes etc., where the parties essentially try to relitigate the issues.

[17] The court is very concerned about some aspects of plaintiff counsel’s modus operandi especially during the oral arguments of this case by Zoom. The court does not have any concerns about the behaviour of Metrolinx’s counsel.

[18] Plaintiff’s counsel was condescending and disparaging on numerous occasions in his interactions with Metrolinx’s female counsel. The court wonders whether he would have been so vocally demeaning and aggressive if a senior male counsel had been on the other side.

[19] The plaintiff’s counsel has been a barrister for approximately 28 years and Metrolinx’s counsel for approximately 14 years.

[20] While the court acknowledges that every client has the right to vigorous representation, there are still lines that should not be crossed. In most cases, crossing those lines does not assist the client and simply cannot be tolerated, even in the most acrimonious of cases. The facts of this case, which involves a dispute between two corporate entities, should not have put it in the acrimonious category.

[21] This case should have proceeded with numerous facts being agreed upon. Surely from a professional ethics and administration of justice point of view, every counsel has a professional obligation to respond robustly to their opposing counsel’s draft statement of fact suggestions, even if little progress is made.

[22] As previously stated, it is difficult for the court to make findings on matters like who was or who was not providing availability for cross examinations or answering undertakings in a timely fashion.

[23] On the facts before me, and certainly on at least a balance of probabilities, the plaintiff: (a) failed to provide the court with relevant law dealing with railways and prescriptive easements, (b) failed to respond to Metrolinx’s draft statement of facts, (c) failed to provide undertakings until a week before February 4, 2021, from cross examinations which were completed two months before, (d) argued points that were not relevant to the status quo motion, (e) sought production of voluminous documents pertaining to the two large infrastructure projects which were well documented in the public domain and irrelevant to the motion, (f) copied the court with correspondence between counsel, accusing Metrolinx’s counsel of “sharp practice” and committing “a fraud on the court”, (g) accused one of Metrolinx’s employees of making up evidence, (h) threatened to bring two contempt motions, and (i) did not file any affidavits from its tenants, or produce any leases, with respect to the subject building which may have shed light on the parking issue, an issue the plaintiff submitted was extremely important to it and its tenants.

[24] On the facts before me and certainly on at least a balance of probabilities, Metrolinx: (a) filed seven pages of cost submissions when the court limited such submissions to five pages, and (b) failed to respond to the plaintiff’s suggestion to file a joint book of authorities.

[25] Overall, the action was moderately complex, the issue was important to both parties but particularly so for Metrolinx since the commencement of construction for the two major infrastructure projects is due to start shortly.

[26] The conduct of the parties has been adequately set out in the preceding paragraphs.

[27] With respect to Metrolinx’s request for substantial indemnity costs, I am taking into account my findings set out above, but in particular, plaintiff counsel’s unprofessional and uncalled for treatment of Metrolinx’s main counsel, Ms. Higgs. The main factors I am taking into account on this issue, are plaintiff counsel’s: (a) condescending and disparaging remarks to Metrolinx’s female counsel, (b) accusations that Metrolinx’s counsel was guilty of sharp practice and of committing a fraud on the court, and (c) copying the court with correspondence alleging the above sharp practice, etc.

[28] On the basis of the record before me, and in an effort to bring more civility to this particular proceeding in the future, as well as future court cases, I award Metrolinx costs on a substantial indemnity basis.

[29] With respect to quantum, I find the hourly rates attributed to Metrolinx’s law clerks to be on the high side while the rate for Ms. Higgs appears quite modest for a Toronto counsel with her experience. Therefore, I do not intend to adjust the rates.

[30] Given the issues before the court, I find the time spent by Metrolinx’s counsel to be appropriate, and therefore, the starting point for my cost order will be $55,682.46.

[31] Finally, I reduce the cost award by $5,000 since Metrolinx’s counsel did not follow the court’s instructions with respect to the number of pages it could submit to the court on the issue of costs.

[32] Therefore, I award costs to Metrolinx in the amount of $47,270.75 inclusive of disbursements and HST.

Justice James W. Sloan Date: March 8, 2021