Court File and Parties

Court File No.: CV-14-21614 Date: 2021-04-28 Superior Court of Justice - Ontario

Re: Richard Gagnier, Lori Gagnier, Brandon Richard William Gagnier, and Zackary Quinn Gagnier, Plaintiffs And: Barbara A. Burns, Defendant

Before: Regional Senior Justice B. G. Thomas

Counsel: Jennifer E. Bezaire, Counsel for the Plaintiffs Mary-Joe Renaud, Counsel for the Defendant

Heard: In writing

Costs Endorsement

[1] On March 11, 2021 I heard the plaintiffs’ motion to strike the defendant’s jury notice in this personal injury action. By my Reasons, released March 17, 2021, I granted leave to bring the motion and struck the jury.

[2] Having been successful, the plaintiffs seek partial indemnity costs of $14,885.98 inclusive of disbursements ($914.08) and HST. Considering the factors contained in r. 57.01(1) they maintain:

(a) The amount claimed and the amount recovered is substantial in that the statement of claim seeks $6 million and the substantial delay awaiting a jury trial would mean a continuing erosion of the past income loss claims (s. 267.5(1) of the Insurance Act).

(b) The proceeding is reasonably complex considering the unique circumstances and the abundance of recent caselaw. As a result, the materials were voluminous.

(c) The issue was important as these plaintiffs, and the public at large, had a right to know that the Court would react to an indeterminable delay caused by waiting for a jury proceeding. And it had been 7.5 years since the plaintiff’s accident.

(d) The reaction by the defendant only served to prolong the proceeding despite what was seen to be the evolution of the law favouring the striking of a jury notice.

[3] The defendant’s position is that costs should be addressed as costs in the trial (Cowley v. Skyjack, 2021 ONSC 1303; Ismail v. Fleming, 2021 ONSC 1425). The argument being that this was the first Windsor decision on this issue and that the local conditions, which are so vital to this decision, were difficult to assess prior to this decision.

[4] Alternatively, the defendant argues that the costs are excessive and should be payable in the cause.

[5] The purposes of costs were considered by the Court of Appeal in Serra v. Serra, 2009 ONCA 395 at para. 8:

[8] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[6] Justice Arrell, in Yelda v. Vu, 2013 ONSC 5903 at paras. 10 and 11 stated:

[10] Section 131 of the Courts of Justice Act provides that “costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs. I have considered those factors.

[11] The default rule, however, in resolving costs issues is that the successful party is entitled to its costs.[^1] The principle that costs follow the event should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct of proceedings.[^2] No such considerations are applicable to the case at bar.

[7] I have considered the factors contained in r. 57.01. On the record before me this appears to be a significant claim which must factor into the importance of the motion (r. 57.01(1)(a)). The motion was complex only to the extent that the caselaw was evolving and required that local circumstances be considered (r. 57.01(1)(c)). The issues were important to the litigants and to the conduct of jury trials in Windsor in the near term (r. 57.01(1)(d)). I cannot find that the actions of the defendant prolonged the proceeding for any improper reason (r. 57.01(f) and (g)).

[8] The plaintiff maintains that after the decision by the Court of Appeal in Louis v. Poitras, 2021 ONCA 49, there was clear authority supporting the striking of the jury notice. The message from the Court of Appeal, however, was not that simplistic. As I set out in para. 35 of my decision, the result of these types of motions must consider the local circumstances of the centre where the case will be tried:

[35] Centres of the administration of justice in this Province are not created equally. There are disparities in resources both physical and human. There are differences in caseloads. (Louis, para. 26):

[26] A proper consideration of the administration of justice would recognize that local judges are best positioned to understand the availability of resources and the appropriate approach in the circumstances of a given case. Judicial responses to the pandemic and court resources availability vary across the province: Passero v. Doornkempt, 2020 ONSC 6384, at para. 49. That does not mean that different approaches reflect a conflict in the case law. Rather, they reflect the due exercise of judicial discretion in differing local circumstances: Belton v. Spencer, 2020 ONCA 623, at para. 75. …

[9] This leads me to consider whether this application, being the first argued in Windsor for COVID-19 related delays, was so novel as to prompt a “no costs” order. I agree, however, with the comments of Perell J. at para. 9 of Frank v. Farlie, Turner & Co., LLC, 2012 ONSC 6715:

[9] For an issue to be novel in a legally significant way that would justify the court in ordering no costs against the party who unsuccessful advanced the issue, it is not enough that the issue is unprecedented or that the issue has not been decided before. The legally significant novelty of a legal issue is found in the circumstance that the existing case law is inadequate to resolve the issue and there would be no proper reason for the party advancing the issue to expect to fail: Baldwin v. Daubney, 2006 33317 (ON SC), [2006] O.J. No. 3919 (S.C.J.) at paras. 19-22; Fisher v. IG Investment Management Ltd., [2010] O.J. No. 2036 (S.C.J.).

[10] The defendant offers the decision in Saadi v. Silva, 2020 ONSC 6700 as authority for the fact that costs should be decided in the context of the broader costs analysis after trial because of the external forces facing civil litigants in these unprecedented times. Saadi was an unsuccessful motion by the plaintiff to strike the jury, heard in October, 2020. Since then the law has evolved and the pandemic has progressed.

[11] I cannot find that the existing caselaw is inadequate to resolve the issue or that there was no proper reason for the defendant to expect to fail. While Justice Perell in Frank was clearly speaking of a party advancing an issue, (in that case a novel claim for punitive damages against corporate directors and officers), the factors have application to the defendant’s position here.

[12] I return now to r. 57.01(1)(O.b) and the consideration of whether the defendant could reasonably have expected to pay this amount of costs if unsuccessful (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).

[13] On this issue, I agree with the defendant. The costs claimed are excessive for this motion at this location. As part of my concern, I point to 42.6 hours of research and drafting by one of three lawyers preparing for this motion. Taking all of the above into account, I fix the costs payable by the defendant at $8,000. all inclusive payable in the cause.

Regional Senior Justice B. G. Thomas

Date: April 28, 2021.

[^1]: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 OR (3d) 135 (CA); St. Jean (Litigation guardian of) v. Cheung 2009 ONCA 9

[^2]: 1318706 Ontario Ltd. v. Niagara (Municipality) (2005), 2005 16071 (ON CA), 75 OR (3d) 405 (CA) at paras. 48-52; 394 Lakeshore Oakville Holdings Inc. v. Misek 2010 ONSC 7238 at para. 14