Court File and Parties

COURT FILE NO.: CV-16-2518-00SR DATE: 2021 03 10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MDG NEWMARKET INC. v. JOHN ERNEST BECHARD

BEFORE: McSWEENEY J.

COUNSEL: Julia Toso, for the Plaintiff MDG NEWMARKET INC. G. Morga, for the for Defendant JOHN ERNEST BECHARD

HEARD: March 10, 2021 in writing

ENDORSEMENT

[1] On Feb 7 2021 I released my decision in this matter dismissing motions brought by Plaintiff for orders:

(a) under rule 6.01 of the Rules of Civil Procedure for an order consolidating the 2015 Windsor claim with this 2016 Brampton SCJ action; and

(b) under rule 72.03 of the Rules of Civil Procedure for an order directing payment out of court to OEG of the $17,041.73, which is the amount of the funds garnished from OEG and subsequently paid into court in the 2015 Windsor claim.

[2] My endorsement indicated that Mr. Bechard was fully successful and is presumptively entitled to costs.

[3] The parties could not agree on costs, and have now filed written submissions in accordance with the timetable set out in my endorsement.

[4] Mr. Bechard’s submissions were filed by counsel Mr. Morga, who apparently has represented Mr. Bechard earlier in his defence in the action in Superior Court. However at the motion before me, Mr Bechard was assisted by a paralegal, Ms. Ventura. Ms. Ventura could not appear as his representative in the Superior Court, however I permitted her to assist Mr. Bechard to convey his position and submissions to the Court over the telephone.

[5] I cannot of course award costs for the attendance of Ms. Ventura on the motion, as she does not have appearance rights in Superior Court. She confirmed she was attending the motion as support and helper to Mr. Bechard, including to assist with his language challenges, and in view of the fact that he does not have internet access or email access.

[6] Mr. Bechard seeks costs of $1,200-$1,500. No dockets or cost outline or disbursement receipts were filed in support of his position.

[7] Ms. Toros for MDG Newmarket submits that costs in the range of $150.00 to $200.00 are appropriate.

[8] I have taken the following factors into account in determining a fair and reasonable cost award:

(a) Mr. Bechard’s complete success;

(b) the technical nature of the jurisdiction issue;

(c) the assistance required by Mr. Bechard, a retiree with language difficulties, in understanding the materials in order to take a position on the motion;

(d) that Mr. Bechard did not file any materials on the motion before me;

(e) that the Court required him to prepare and file cost submissions, which required services of a lawyer; and

(f) the absence of specific cost outlines or disbursements filed by Mr. Bechard with his cost submissions.

[9] I also consider the significance of the motion to Mr. Bechard. In the result he was successful in resisting the transfer of his Small Claims matter from Windsor to Brampton and from the SCC to the Superior Court. He has kept his costs down in the Small Claims forum with paralegal assistance, and if he had not succeeded on the motion, would have been required to incur greater costs and inconvenience.

[10] I also consider that the counsel for the moving party was not familiar with nor prepared to respond to the Court’s relevant questions about the status and timing of the SCC claim, and indicated she was retained on the SCJ matter only. It did not appear that the moving party had considered transferring its proceeding to Windsor, or proposing to Mr. Bechard to use the upcoming settlement conference in the SCC matter to resolve the overall issues between the parties. The motions would appear therefore to have been tactical rather than resolution-oriented, and designed to compel Mr. Bechard into Superior Court in Brampton, where he needs to pay a lawyer to defend himself. Such an approach, taken without consent of the plaintiff in the SCC matter, is contrary to the rules applicable to Small Claims court proceedings, per my findings on the motion.

[11] Considering the law and applicable factors highlighted above, I fix costs in the amount of $750.00 inclusive. This amount is fair and reasonable in the circumstances and is similar, or lower, than the amount Mr. Bechard would reasonably have expected to pay if unsuccessful.

ORDER

[12] The moving party MDG Newmarket Ltd to pay costs of $750.00 to Mr. Bechard within 30 days.

[13] As Mr. Bechard does not have an email address, Ms. Ventura shall provide a copy of this endorsement to Mr. Bechard by mail.

McSWEENEY J. DATE: March 10, 2021