CITATION: Conlon v. JP Quality Care, 2021 ONSC 2839
COURT FILE NO.: CV-20-518-0000
DATE: 2021/04/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sharon Conlon and David Conlon, Plaintiffs/Defendants by counterclaim
AND
JP Quality Care Construction Inc., Defendant/Plaintiff by counterclaim
AND
James Palmerton, Plaintiff by Counterclaim
BEFORE: Justice L. Sheard
COUNSEL: Brandon Carter, counsel for the Plaintiffs/Defendants by Counterclaim
Juliet Montes, counsel for the Defendant/Plaintiffs by Counterclaim
HEARD: In writing
COSTS DECISION
Overview
[1] The plaintiffs, Sharon Conlon and David Conlon, are plaintiffs in this action and defendants in an action brought in the Small Claims Court (“SCC”) by their former contractor, JP Quality Care Construction Inc. (“JP”). JP sued the Conlons seeking payment for construction work and services rendered to the Conlons’ rental property.
[2] The Conlons sought to counterclaim in the SCC action, but the amount of the counterclaim exceeded the monetary limit so the Conlons brought this action. JP and its principal, James Palmerton, have counterclaimed in this action.
[3] The Conlons sought various relief on this motion; a primary goal was to avoid having to defend the SCC action and pursue this action at the same time. The Conlons also sought an order compelling JP and Mr. Palmerton to provide particulars requested in the Conlons’ Demand for Particulars and to provide documents listed in the Conlons’ Request to Inspect.
[4] Following the completion of the Conlons’ submissions on the motion and after their responding submissions had begun, JP and Mr. Palmerton advised the court that they would consent to an order relating to the Demand and the Request.
[5] In my endorsement dated March 11, 2021, I granted the alternate relief sought by the Conlons by ordering a stay of the SCC action until this action was determined. That order was made without prejudice to the right of JP to amend its counterclaim in this action.
[6] The parties were encouraged to agree on the costs of the Conlons’ motion, failing which, they were to provide written costs submissions. They were not able to agree on costs. I have now received the parties’ cost submissions, which have been considered in the making of this decision.
Positions of the Parties
[7] The Conlons ask for their costs of the motion on a substantial indemnity basis in the all-inclusive amount of $10,849.06. They submit that as they were successful on the motion, they are presumptively entitled to their costs.
[8] The Conlons ask me to exercise my jurisdiction under r. 57.01 (4)(c) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, and s. 131 of the Courts of Justice Act, R.S.O. 1990 c. c.43 to award costs on a substantial indemnity basis. The Conlons submit that this higher scale of costs is justified for the following reasons:
(i) the motion was adjourned from December 17, 2020 to February 18, 2021, accommodate Gloria Ichim, counsel for JP and Mr. Palmerton, who was unwell. However, on February 18, 2021, Ms. Ichim did not attend and, instead, Juliet Montes, appeared as her agent. Ms. Montes appeared to be unfamiliar with the subject matter of the motion and, throughout the hearing, appeared to be receiving information and prompts from a third party via her cell phone; and
(ii) the motion commenced at 9:30 a.m. and concluded at 3 p.m. Following a number of hours of submissions on the motion, and after having initially opposed the relief sought respecting the Demand for Particulars and Request to Inspect Documents, counsel for JP and Mr. Palmerton advised the court that her clients would now consent to this relief. The court noted that the late consent could lead to cost consequences to JP and Mr. Palmerton.
[9] I understand the thrust of the Conlons’ arguments to be that they incurred unnecessary costs attributable to the adjournment request; the late consent by JP and Mr. Palmerton to some of the relief claimed; and to the fact that the counsel who acted as agent for Ms. Ichim was not sufficiently familiar with the matter or the motion.
[10] Written cost submissions were submitted by Ms. Ichim on behalf of JP and Mr. Palmerton.
[11] I understand JP and Mr. Palmerton to be asking for their costs of the motion on a substantial indemnity basis in the amount of $15,142 or, alternatively, for an order awarding neither party costs, or that costs be in the cause. This position appears to be based on the basis that:
(i) although the relief granted was included in the alternate relief set out in the Conlons’ notice of motion, the relief strongly pursued by the Conlons on the motion was the consolidation of the SCC action with this action, which relief was not granted and the order made was based on the Conlons’ “unargued fall back position”(sic);
(ii) when JP and Mr. Palmerton consented to the relief referenced under paragraph 7(ii), above, the order made by the court was on a without costs basis, which, these parties submit, is why the endorsement of March 11, 2021 was “silent” on this issue;
(iii) JP and Mr. Palmerton did not refuse to provide the requested particulars, but, rather, they took the position that the order was unnecessary as the information and documentation were already in the Conlons’ possession;
(iv) the hearing was made “unnecessarily complex and lengthy” because the Conlons had failed to “provide any evidence whatsoever” to show that their claim was within the monetary jurisdiction of this court and that this action is “an attempt to harass or defeat” JP and Mr. Palmerton “by means of costs attrition rather than the prosecution of a reasonable cause of action”; and
(v) Ms. Montes was properly prepared for the motion and was asked to act as agent for Ms. Ichim, rather than to request a further adjournment, due to Ms. Ichim’s unavailability to argue the motion, which was called on short notice.
Analysis
[12] The general principles applicable to party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.
[13] Certain general principles have now been expressly articulated Rule 57.01, specifically the principle of indemnity and the affirmative obligation to consider the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.
[14] While the Conlons did seek a consolidation order, submissions were also made in support of a stay order, which was granted. I do not find that there was mixed success or that, because the order granted may not have been the Conlons’ first choice, they were unsuccessful. The Conlons sought an order that would prevent them from having to defend the SCC action and, in effect, assert a “counterclaim” in this court in respect of the same set of events. The Conlons were successful in obtaining that relief. I see no reason to depart from the usual principle that the successful party is entitled to their costs.
[15] I am also not persuaded by the costs submissions made by JP and Mr. Palmerton, who suggest that the Conlons had not established that their claim exceeded the monetary limits of the SCC. That issue was considered by Deputy Judge Lannan who had stayed the SCC action to allow the Conlons to decide whether to waive their excess claim and proceed in the SCC or to sue in the Superior Court.
[16] As for the costs submissions of JP and Mr. Palmerton that the Conlons have brought this action in an attempt to harass or defeat them, those submissions conflict with the findings set out at paragraph 49 of my endorsement of March 11, 2021.
[17] Finally, I am also not persuaded by the submission that, by consenting to some of the relief sought in the course of the motion, an order for that relief should be made on a without costs basis. No such agreement was communicated to the court, nor, based on the Conlons’ costs submissions, was that agreed to by them. The hearing of the motion commenced at 9:30 a.m. and it was not until 2:18 p.m., following a lunch break and in the course of responding submissions, that counsel for JP and Mr. Palmerton advised the court that their clients would consent to that relief.
[18] I find r. 57.01 (e) to have particular application to this case. It states as follows:
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding.
[19] The hearing of this motion took the better part of a day, much longer than estimated by the parties or was reasonably required. Had JP and Mr. Palmerton consented to relief relating to the Demand for Particulars and Request to Inspect Documents at the outset of the hearing (or earlier), both parties would have been saved the associated costs.
[20] In determining the reasonable expectations of the parties concerning the quantum of costs, I have compared the fees set out in the parties’ Bills of Costs. The fees claimed by the Conlons on a substantial indemnity basis total $9,593.70 inclusive of HST, exclusive of disbursements of $1,254.36. The fees claimed by JP and Mr. Palmerton on a substantial indemnity basis and somewhat higher, and total $15,142.00. No disbursements are claimed. From these two sets of Bills, I find that, if costs were awarded on a substantial indemnity basis, the amount claimed by the Conlons would have been within the reasonable expectation of the responding parties.
[21] I conclude that full substantial indemnity costs are not warranted, however, for the reasons set out above, I am of the view that something above partial indemnity costs should be awarded.
Disposition
[22] In consideration of the factors and principles referenced above and in the exercise of my discretion to fix costs, I fix the Conlons’ costs of this motion at $10,048.50, inclusive of fees, disbursements and H.S.T.
L. Sheard J.
Date: April 16, 2021
COURT FILE NO.: CV-20-518-0000
DATE: 20210416
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sharon Conlon and David Conlon
Plaintiffs (Defendants by Counterclaim)
- and –
JP Quality Care Construction Inc.
Defendant (Plaintiffs by Counterclaim)
- and –
James Palmerton
Defendant by Counterclaim
COSTS ENDORSEMENT
L. Sheard J.
Released: April 16, 2021