COURT FILE NO.: CV-16-1766 (Brampton)

DATE: 20210601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LUCIA DERENZIS

Plaintiff

-and-

CORY SCOBURGH and LATOYA MCLEAN

Defendants

Ashu Ismail, for the Plaintiff

D. Keith Smockum, for the Defendants

Emma Gardiner and Lonny Rosen for the non-party, Gore Mutual Insurance Company

Heard: June 1, 2021

Before: Chown J.

COSTS RULING

[1] I have reviewed Gore’s submissions on costs and have heard the parties’ arguments.

[2] Ms. Ismail suggested that the costs decision be deferred to the judge hearing the underlying motion. She acknowledged the conclusion in my reasons that there is little prospect that the four witnesses the plaintiff proposed to examine will have more information than Mr. Jones, but argued that it may turn out, once Mr. Jones is examined, that the request to examine the additional witnesses was justified. She argues that the motion judge will be in a better position to address this. She suggested I seize myself of the underlying motion and defer the costs determination.

[3] In response, Ms. Gardiner pointed to rule 57.03(1) which calls for costs of contested motions to be fixed and ordered payable within 30 days, and she argued that there is no reason here why a different order would be more just.

[4] In my view, the issues in this motion and the tertiary motion were distinct enough from the underlying motion such that it is best not to leave the issue of costs to the judge hearing the underlying motion. That judge would have to get up to speed on the issues in these two motions before ruling on costs. There is no good reason to depart from the normal policy identified in rule 57.03(1).

[5] As to seizing myself of the underlying motion, while there would be an efficiency to this, it would potentially cause difficulties with court scheduling and lead to further delays if I were to do so.

[6] The arguments of Gore and the plaintiff only confirm my conclusion that this skirmish over summonses and examinations in the underlying motion is really directed towards the larger battle underway in the insurer misconduct claim.

[7] It was not productive to have two separate motions heard on separate days regarding the summonses. Mr. Murray should have agreed to have the issues in the two motions heard in a single hearing, as Ms. Gardiner proposed. Separate motions significantly increased the costs.

[8] The lengthy emails between counsel suggest more time than necessary was spent by both sides trying to create a record for later use, or to protect that record.

[9] In argument Gore withdrew its request for costs to be personally awarded against Mr. Murray. However, Gore pressed for substantial indemnity costs.

Scale

[10] To justify substantial indemnity costs, Gore pointed to Justice Mandhane’s comment that the plaintiff appeared to be engaged in a fishing expedition and to my finding that the examinations appeared to be an attempt to abuse the court’s processes.

[11] I do not think that issuing a summons to witness that is found to be an attempt to abuse the court’s process should necessarily lead to an award of substantial indemnity costs against the party that had the summons issued.

[12] Substantial indemnity costs are not justified here.

Quantum

[13] Gore claims its costs for the two motions as follows:

Full rate

$92,473.55

Substantial indemnity

$79,443.52

Partial indemnity

$68,867.06

[14] Counsel advises that these amounts are for the two motions alone, not including: the underlying motion; review and analysis of the documentation that Gore has in connection with the plaintiff; or formulating a position or advising Gore on the production of documents under Justice Doi’s order. Further, counsel advises that this does not include the additional submissions in this motion.

[15] Gore argued that while the issues seem simple, they are deceptively complex. It pointed to the significant motion materials filed by the plaintiff. It pointed to Justice Mandhane’s comment that the plaintiff’s position was difficult to ascertain.

[16] Ms. Ismail referred to Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579, 71 O.R. (3d) 291 (C.A.) at para. 24:

The bills were prepared in accordance with the calculation of hours times dollar rates …. While it is appropriate to do the … calculation, it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.

[17] Ms. Ismail also referred to the principle that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA) at para. 4, as cited in Boucher.

[18] The amount claimed for these two motions is extremely high and beyond what is fair and reasonable for the plaintiff to pay in the circumstances. This is not a criticism of the effort put into the matter by counsel. I would note that Gore’s materials were of a very high quality. Also, because of the allegations and nature of the related insurer misconduct claim, it is understandable that Gore would be motivated to put a lot of effort into its response. However, I am required to step back and consider the result produced and search for an amount that is fair and reasonable in all the circumstances. These were non-routine but relatively straightforward motions. There should have been only one motion. The issues were obscured somewhat by the plaintiff’s materials. But the amount still needs to be reasonable.

[19] I conclude an appropriate figure for both motions is $16,000 plus HST plus $850 inclusive of HST for disbursements, for a total of $18,930. The plaintiff shall pay the non-party Gore Mutual this amount within 30 days.

Timetable

[20] The underlying motion shall be heard as a long motion on January 12, 2022, commencing at 10:00 AM or as the trial coordinator may otherwise direct, scheduled for 3 hours. I anticipate the motion will be heard by videoconference but this will depend on court policies as they evolve. The parties should check with the court office in advance of the hearing to confirm the mode of hearing.

[21] When counsel were before me this morning and we discussed the timetable, I failed to recognize that the parties’ additional affidavit materials, if any, would normally be delivered before Mr. Jones is cross examined. As a result, the schedule we worked out did not reflect this. Therefore, I will not include in this order the timetable we worked out.

[22] The parties are to agree to a timetable and Ms. Gardiner is to email my judicial assistant by June 11, 2021 to advise me of the agreed timetable. If the parties have any difficulty agreeing to the timetable, a further 9:00 AM hearing is to be arranged with me.

“Justice R. Chown”

Released: June 1, 2021