COURT FILE NO.: CV-16-562042
WRITTEN COSTS SUBMISSIONS FILED: 20210111
COSTS ENDORSEMENT RELEASED: 20210401
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
GLAHOLT LLP
Plaintiff
- and-
170 NORTH QUEEN DEVELOPMENTS INC. and BEAUX PROPERTIES INTERNATIONAL INC.
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: M. Rosenthal
Email: mylesrosenthal@glaholt.com
- for the Plaintiff
E. Birnboim
Email: ebirnboim@chitizpathak.com
- for the Defendants
COSTS ENDORSEMENT RELEASED: April 1, 2021
Costs Endorsement
I. Introduction
[1] The Plaintiff’s motion for a timetable was resolved on consent. The Plaintiff now seeks costs of $7,733.29 on a substantial indemnity scale or alternatively, $5,327.43 on a partial indemnity scale. The Defendants submit that no costs should be awarded.
II. Background, Law and Analysis
[2] This is a collection action by a law firm. In or about November 2019 the Plaintiff proposed a discovery plan. From November 2019-February 2020, the Plaintiff attempted to engage the Defendants in a discussion about the discovery plan but the Defendants were unresponsive. The Plaintiff eventually advised that it would bring a motion if a response was not received. The Defendants advised that they hoped to discuss the discovery plan prior to the Plaintiff bringing a motion but did not ultimately respond. The Plaintiff prepared materials and scheduled the motion for March 19, 2020. On March 11, 2020, the Defendants proposed a timetable which the Plaintiff accepted. The Plaintiff offered to resolve the motion for costs of $819 which the Defendants refused. The motion was confirmed to proceed on the issue of costs only, however, it did not go ahead due to the suspension of regular court operations resulting from the COVID-19 pandemic.
[3] Although the motion did not proceed, the Plaintiff delivered its Affidavit of Documents and productions on May 14, 2020 in accordance with the timetable. The Plaintiff’s Schedule “A” is 513 pages and lists over 7,700 documents. The Defendants did not deliver their productions. The Plaintiff’s requests regarding the Defendants’ documents and an amended timetable went unanswered (except for a response with respect to a potential amendment to their Defence) until the Plaintiff re-scheduled the motion for December 15, 2020 and delivered amended motion materials. The Defendants consented to a timetable in the days leading up to the December 15 return date which was again confirmed to proceed on costs only. However, counsel did not attend given miscommunications over whether the motion was proceeding virtually or in person. In my Endorsement dated December 15, 2020, I provided the parties with an opportunity to file written costs submissions.
[4] 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).
[5] Fairness and reasonableness are the overriding principles in determining costs (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 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), 2005 CanLII 16071 (ON CA), 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).
[6] Costs are not typically awarded when 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). Such circumstances may include situations where the parties agree 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). Both of these circumstances exist in the present case.
[7] In my view, the Plaintiff should be awarded some costs of the motion. This conclusion is based on the Defendants’ failure to respond in a timely manner which could have avoided the motion entirely and which unnecessarily lengthened it (Rules 57.01(1)(e) and (g)). Had the Defendants responded sooner with their proposed timetable (which was accepted by the Plaintiff), the motion and the preparation of motion materials (the primary costs incurred) could have been avoided. Similarly, had the Defendants responded earlier in Fall 2020 regarding an amended timetable, the parties could have resolved it without the need for a second return date.
[8] Other than the Defendants’ delay in responding to the amended timetable, I generally take no issue with the parties’ conduct after March 2020. The Defendants were faced with reviewing a voluminous number of documents from the Plaintiff while attempting to locate their own documents during a pandemic. While the Plaintiff could have scheduled a case conference or chambers appointment to address the amended timetable, in light of the Defendants’ continued unresponsiveness, the existing record and the fact that the first return date did not proceed due to the pandemic, scheduling a second return date was not unreasonable in the circumstances. At the same time, there is no evidence that the Defendants engaged in any conduct which can be characterized as abusive, reprehensible or egregious, therefore, I reject the Plaintiff’s request for costs on a substantial indemnity scale (Standard Life Assurance Co. v. Elliot, 2007 CanLII 18579 (ON SC), [2007] O.J. No. 2031 (S.C.J.) at paras. 9-10; Dyke v. Metropolitan Toronto Condominium Corporation No. 972, 2015 ONSC 2022 at para. 10).
[9] While I agree with the Defendants that straightforward matters like timetables can be more appropriately resolved by case conferences, this requires both parties to be responsive and, even if disagreeing on the issues, to cooperate in a process to resolve it. It is apparent that the Defendants did not respond until they were faced with a motion on two occasions. Had they at least responded and indicated their consent or proposed a timetable, costs and additional steps could have been avoided. The Defendants cannot rely on their own unresponsiveness to suggest that the Plaintiff should have chosen another way forward.
[10] Turning to quantum, I am not satisfied that the amount sought by the Plaintiff is reasonable, proportionate or within the reasonable expectations of the parties on a straightforward, non-complex timetable motion resolved on consent. While the Plaintiff submits that it has not included all of its time and costs incurred, the 37.5 hours claimed for a junior lawyer and law clerk is still not reasonable in the circumstances.
[11] Having reviewed the Plaintiff’s Costs Outline and considered all of the relevant factors and circumstances, including the Plaintiff’s offer to settle, 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 $2,700 within 60 days.
Costs Endorsement Released: April 1, 2021
Master M.P. McGraw