COURT FILE NO.: CV-19-81142
DATE: 20210318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL MATLOCK
Plaintiff
– and –
OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION No. 815, RAY HESSION, CATHERINE ZONGORA, JOCELYN LAMARCHE, ROUZBETH ZADEH, JEAN LOUIS BELLMARE, DR. MANEESH SHARMA, RELIANCE CONSTRUCTION GROUP and S & R PLUMBING
Defendants
Matthew Morden, for the Plaintiff
Martin A. Smith, for the Defendants, OCSCC No. 85, Ray Hession, Catherine Zongora, Jocelyn Lamarche, Rouzbeth Zadeh, Jean Louis Bellmare and Dr. Maneesh Sharma.
HEARD: In writing
decision on costs
Beaudoin J.
Background
[1] The statement of claim in this action was issued on August 18, 2019. On January 10, 2020, the board member defendants advised that they would move to strike the claim as against them. In response, the plaintiff brought a motion wherein he proposed an amended statement of claim. The amended statement sought to add to the claim against the board member defendants and add Steven Kerzner, as a party. The board member defendants opposed the amendments and advanced a crossclaim to strike the claims against them in their entirety. They did not oppose some of the proposed amendments and the discontinuance of the action against Jocelyn Lamarche and Rouzbeth Zadeh subject to their claims for costs of the discontinuance of the action as against those defendants.
[2] In my decision dated January 19, 2021, I found that it was plain and obvious that the plaintiff could not succeed against the board member defendants in the action as originally pleaded or in the proposed amendments. I further denied leave to the plaintiff to seek any further amendment to his statement of claim.
[3] I have now received the written costs submissions of the parties.
The Position of the Successful Defendants
[4] The board member defendants seek their costs for their success on the motion/cross motion and a proportionate (5/7ths) of the costs of the action to date for a total of $15,784.88.
[5] They rely on the factors set out in rule 57.01. They also rely on the decision of this Court in Rebello v. Bank of Nova Scotia, 2018 ONSC 7127, in support of their argument that, on a successful motion to strike, they are entitled to the costs of the full action and not just the motion.
[6] These defendants point to the serious nature of the many allegations against them personally, the breadth of the claims and the amount an issue. They also emphasize the plaintiff’s further and ultimately unsuccessful attempt to enhance the originally deficient pleadings.
[7] These defendants say that they sought to minimize costs throughout by delegating appropriate steps to more junior counsel. They submit that this motion to strike necessitated legal research and analysis for the preparation of a comprehensive factum.
[8] They argue that the plaintiff’s choice to add the board member defendants at the outset of the action resulted in a variety of issues that would not have existed but for the addition of these personal defendants.
[9] They submit that the plaintiff could reasonably have expected to pay the amount claimed in costs. They maintain that it ought to be plain and obvious that adding multiple defendants would increase the complexity of the matter and the amount of time spent on the file from the outset, even though no statement of defence was filed.
[10] The defendants rely on the comments of Master Dash in Enerworks Inc. v. Glenbarra Energy Solutions Inc., 2016 ONSC 4291 at para. 44 where he observed: “What the plaintiff has done by discontinuing short of trial, is save itself paying the costs of trial. This however should not deprive (the defendant) of his costs incurred up to the time of discontinuance.”
[11] The defendants argue that the same reasoning applies to the plaintiff’s unjustified pursuit against them and that they should not be deprived of their costs incurred in relation to the action to date just because they properly brought a motion at an early stage.
[12] They submit that while the motion had a moderate level of complexity, the issues were of fundamental importance to them. They add that this type of litigation against board members of a condominium corporation should be discouraged by appropriate costs sanctions for both the motion and the action.
The Plaintiff’s Position
[13] The plaintiff submits that an appropriate award of costs would be $4500 for the motion and $2500 for the action, totaling $7000. He maintains that the costs claimed are excessive.
[14] The plaintiff argues that the motions were straightforward with very limited records and the action was still in the pleading stage. The board member defendants had not yet delivered their statement of defence.
[15] The plaintiff notes that the defendant condominium corporation and the board member defendants were represented by the same counsel. The plaintiff argues that a significant part of the costs claimed by the board member defendants are attributable work and product that would have been necessary whether or not they were named as defendants.
[16] The plaintiff argues that the defendants provided different (and higher) cost outlines after they received my decision. On this issue, I accept the defendants’ explanation that there was an error in the original costs outline and that an explanation was provided to plaintiff’s counsel as soon as it was discovered and in advance of filing the costs outlines with the court.
[17] Plaintiff’s counsel refers to his costs outline that reveals that he spent 5.5 hrs. on legal research and drafting the factum whereas the defendants recorded 37 hours for the same tasks. The plaintiff sought $4881 in respect of the motion and he argues that is more reflective of an appropriate award of costs.
[18] The plaintiff disputes the claim for costs of defending the action and submits that the motion to strike was brought early with no statement of defence being filed. He says that the defendants’ claim for costs of the action should be limited to the point in time when they decided to bring their motion. He adds that the board member defendants are unable to substantiate what time was reasonably spent on the matter. He maintains that the bill of costs provided is non-compliant with rule 57.01(5) and that this a reason to make a lower award of costs.
Conclusion
[19] I agree that the plaintiff’s own costs outline is a good starting point in determining the reasonable expectations of the unsuccessful party. In this case, the board member defendants’ factum thoroughly canvassed the case law and I relied on those cases in my decision. While the claim of 37 hours for research and drafting is high, that research ensured the board member defendants’ success on the motion.
[20] These defendants had to determine the best strategy to respond to these deficient pleadings. They could have sought particulars. They could have incurred more costs and proceeded to discoveries and then bring a summary judgment motion. All these steps would have exposed the plaintiff to an even greater claim for costs.
[21] These defendants wisely chose to attack these pleadings at the outset. These allegations were no doubt troubling to the board member defendants. The plaintiff may have had reason to regret his purchase of the condominium, but his pursuit of the board members was not justified.
[22] The decision to strike the pleadings and oppose the amendments required significant time and effort. That task was exacerbated by the delivery of proposed amendments that did little to improve the situation. The plaintiff’s attempt to single out board member, Ray Hession, required a separate response. Having regard to my finding that the total time spent on research and drafting to be on the high side, I conclude that the amount of $6000 for the costs of the motion is reasonable.
[23] I further find that these defendants are entitled to costs of the action. Even so, no defence was ever filed and I am not satisfied that allocating those costs on a 5/7th percentage basis is an appropriate way to allocate those costs. Most of the costs that relate to the board member defendants were incurred and are more properly allocated to the motions.
[24] As the plaintiff observed, the amount claimed for fees and disbursements in relation to the action is not set out in great deal, but this criticism is attenuated by the plaintiff’s failure to disclose his own costs of initiating this proceeding. I allow the amount of $3000 for the fees incurred in responding to the action. The board member defendants are therefore entitled to $9000 for fees to which HST of $1170 must be added plus disbursements of $320 for a total costs award of $10,490.
The Honourable Mr. Justice Robert N. Beaudoin
Released: March 18, 2021
COURT FILE NO.: CV-19-81142
DATE: 20210318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL MATLOCK
Plaintiff
– and –
OTTAWA-CARLETON STANDARD CONDOMINIUM CORPORATION No. 815, RAY HESSION, CATHERINE ZONGORA, JOCELYN LAMARCHE, ROUZBETH ZADEH, JEAN LOUIS BELLMARE, DR. MANEESH SHARMA, RELIANCE CONSTRUCTION GROUP and S & R PLUMBING
Defendants
decision on costs
Beaudoin J.
Released: March 18, 2021