Court File and Parties

COURT FILE NO.: CV-16-558428 WRITTEN COSTS SUBMISSIONS FILED: 20201215 COSTS ENDORSEMENT RELEASED: 20210314 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

BIG BROTHERS AND BIG SISTERS ASSOCIATION OF PETERBOROUGH INCORPORATED Plaintiff

- and-

DARLENE EDWARDES-EVANS and ROBERT BESTARD Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: S. Pavic Email: spavic@osler.com

• for the Plaintiff

D. Naymark Email: dnaymark@naymarklaw.com

• for the Defendants

COSTS ENDORSEMENT RELEASED: March 14, 2021

Costs Endorsement

I. Introduction

[1] The Plaintiff seeks costs of its motion to compel the Defendants to answer approximately 44 refusals arising from examinations for discovery. As a result of significant case management over 3 court attendances and ongoing discussions between counsel, the parties ultimately resolved the motion. The Plaintiff requests costs of $8,720.78 on a partial indemnity scale while the Defendants submit that no costs should be awarded.

II. Background, Law and Analysis

[2] This is a fraud action with related criminal proceedings. The first motion proceeded before me on July 23, 2019. With significant case management and discussions between counsel, the number of refusals was reduced significantly to 13. I adjourned the motion sine die to permit the parties to have further discussions. Telephone case conferences were held on October 10, 2019 and December 2, 2019 during which I made numerous orders and directions with respect to outstanding undertakings, under advisements and refusals and a timetable for written costs submissions. The parties later resolved all outstanding issues except for costs.

[3] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[4] Fairness and reasonableness are the overriding principles in determining costs (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 71 O.R. (3d) 291 (C.A.); Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14). In determining costs, the court must also consider Rule 1.04(1) to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and Rule 1.04(1.1) to make costs orders which are proportionate to the importance and complexity of the issues and to the amount involved (Deonath at para. 21).

[5] I reject both parties’ submissions with respect to their purported success on the motion. The Plaintiff argues that it was substantially successful while the Defendants claim that success was divided. However, the motion did not ultimately proceed and the court did not make any determinations. The Defendants agreed to answer approximately 17 questions as asked and 13 questions as amended and agreed to follow up with third parties on 6 questions. The Plaintiff withdrew or did not proceed on 6 questions. Therefore, there is no success to measure.

[6] Costs will not typically be awarded where a motion is settled on all issues except for costs unless there are exceptional circumstances (Kearney v. Hill, 2017 ONSC 6306 at paras. 27-31; Muskala v. Sitarski, 2017 ONSC 2842 at paras. 5-12). These include situations where the parties have agreed to resolve the motion on all issues except for costs and where it is unlikely that the motion would have proceeded on consent without deferring costs (Kearney at paras. 28-30).

[7] Although the refusals were eventually resolved, I am satisfied that there are exceptional circumstances which support the granting of costs. Namely, the motion would not have been resolved without the Plaintiff being provided with an opportunity to seek costs. In my view, having the substantive issues settled on the condition that costs be deferred is consistent with Rule 1.04(1) and furthers the goals of promoting settlement, fairness to the parties, access to justice and proportionality (Cadieux (Litigation guardian of) v. Cloutier, 2019 ONCA 241 at paras. 21-25). At the same time, I am mindful that there is a balance between providing parties with an incentive to settle and not effectively sanctioning them with costs for compromising their positions to arrive at a settlement. All of these objectives can be reflected in determining whether to award costs, the scale and the amount.

[8] In all of the circumstances, I conclude that the Plaintiff should be awarded some costs of the motion. This is largely due to the Defendants’ conduct which unnecessarily lengthened the duration of the motion and their failure to answer refusals sooner (Rules 57.01(1)(e) and (g)). In my view, the Defendants would not have answered as many of the refusals as they did when they did unless the Plaintiff had brought the motion. In this respect, the motion was necessary and although it is not a mathematical exercise, the Defendants ultimately answered a significant number of questions which it is clear they should have answered. These questions were important in the context of the present case where much of the information sought was only known to the Defendants and third parties. Had the Defendants done so sooner, they would have spared the parties unnecessary time and costs. I have taken the Plaintiff’s compromises and the Defendants’ willingness to settle into account in determining the amount to be awarded.

[9] I reject the Defendants’ submissions that the Plaintiff is not entitled to costs because its counsel is acting pro bono. It is long settled that costs are available where counsel is acting pro bono:

“[34] It is clear from the submissions of the amici representing the views of the profession, as well as from the developing case law in this area, and I agree, that in the current costs regime, there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases. Although the original concept of acting on a pro bono basis meant that the lawyer was volunteering his or her time with no expectation of any reimbursement, the law now recognizes that costs awards may serve purposes other than [page768] indemnity. To be clear, it is neither inappropriate, nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act pro bono to receive some reimbursement for their services from the losing party in the litigation.

[35] To the contrary, allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the system without fear of the sanction of an award of costs; and (2) it promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. Because the potential merit of the case will already factor into whether a lawyer agrees to act pro bono, there is no anticipation that the potential for costs awards will cause lawyers to agree to act only in cases where they anticipate a costs award.” 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.) at paras. 34-35.

[10] I disagree with the Defendants’ assertion that there is costs “asymmetry” in the present case and that to award costs would be a windfall. The Defendants’ position is inconsistent with the Court of Appeal’s guidance that ordinary costs consequences ensure that all parties, including the Defendants, are aware that any abuse or other conduct may attract a costs award just as it would if counsel were not acting pro bono. Further, there is no evidence before me that the Plaintiff acted in an aggressive or disproportionate manner in pursuing answers to the refusals. In my view, the Plaintiff’s conduct was consistent with what could be expected of a reasonable litigant let alone a non-profit organization advancing the serious allegations of fraud here after the completion of criminal proceedings.

[11] Having reviewed the Plaintiff’s Costs Outline and considered all of the relevant factors and circumstances, I conclude that it is fair and reasonable in the circumstances and within the reasonable expectations of the parties for the Defendants to pay costs to the Plaintiff fixed in the amount of $5,000 within 30 days.

Costs Endorsement Released: March 14, 2021

Master M.P. McGraw