Court File and Parties

COURT FILE NO.: CV-21-0169-00 (Brampton) DATE: 20210226

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Toronto District School Board, Plaintiff -and- Roofmart Ontario Inc., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Pamela Pengelley, for the Plaintiff Thomas J. Hanrahan, for the Defendant

READ: March 15, 2021

ENDORSEMENT

Relief Requested

[1] Costs.

Disposition

[2] See "costs" below.

Costs

[3] On a substantial indemnity basis, fixed at $7,100 are payable by Applicant to Respondent in 30 days.

Brief Reasons

[4] This motion should never have been brought. It made no difference to the parties whether the matter was heard in Brampton or Toronto. In fact, with remote hearings, the parties do not know what region Daley J would have actually been in when he heard the matter.

[5] Daley J made it clear to the parties that he was available and giving the application priority. While the underlying dispute is connected to Toronto, nothing about the choice of arbitrator is connected to any particular region. I do not accept the submission that Roofmart was concerned that it not be prejudiced in ensuring the Toronto would be the forum for later proceedings that are connected with Toronto. It could have made that point to Daley J directly and asked for an order "without prejudice". In fact, that submission was never made to me on the transfer motion. The purpose in bringing the transfer motion, in my view, was to do any or all of: judge-shopping, causing delay, running up the applicant's costs, or try to discipline the applicant to expect unreasonable resistance at every possible step.

[6] Roofmart's communication with the court as the motion was being brought was also inappropriate. Scheduling a motion and submitting motion documents does not include sending correspondence with one-sided submissions to court offices or judges. Rule 1.09 was breached by the respondent.

[7] The motion was inappropriate, unnecessary, and reprehensible within the meaning of the case law.

[8] Costs are to provide fair and reasonable indemnity to a party. They can also impact access to justice and must therefore be considered from the perspective of the reasonable expectation of the paying party. The TDSB claims costs of almost double those asserted by Roofmart. However, the hours are not far off. The difference is in the rates proposed. Roofmart's proposed rates are very low. TDSB proposed rates reflect substantial indemnity claims and are reasonable.

[9] The court has a discretion to award costs under section 131 of the Courts of Justice Act. The discretion is guided by the factors set out in Rule 57.01 as well as the overriding test of reasonableness referred to above. In my view, this is one of the rare cases in which the proceeding was so unnecessary and Inappropriately brought as justify costs on a substantial indemnity basis.

[10] Considering access to justice issues, nothing about the costs award I make will dissuade or prevent Roofmart from bringing proper proceedings and engaging in scheduling discussions in an appropriately cooperative manner. Rather, access to justice will be enhanced if punitive costs dissuade Roofmart from bringing unnecessary proceedings and breaching Rule 1.09 instead of scheduling matters cooperatively with counsel opposite.

F.L. Myers J.

Date: March 15, 2021