COURT FILE NO.: CV-12-5720-00
DATE: 2021 06 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DEAN HEFFERNAN
Dean Heffernan, the Plaintiff, on his own behalf
Plaintiff
- and -
JOHN H. KIEFFER PROFESSIONAL CORPORATION, JOHN H. KIEFFER, Barrister and Solicitor
James Bennett and Nicole Wozniak, for the Defendants
Defendants
REASONS FOR DECISION ON COSTS
DALEY J.
[1] The plaintiff’s action was dismissed for reasons of delay in accordance with my reasons for decision of April 13, 2021 – Heffernan v. John H. Kieffer Professional Corporation, 2021 ONSC 2786.
[2] Having succeeded in their motion to dismiss the action, the defendants seek their costs of the action and the motion on a partial indemnity basis.
[3] I have received and considered costs submissions from these parties; however the plaintiff asserts that he had accepted the defendants offer to settle dated March 11, 2021, and as such he is not liable to pay the defendants’ costs. The defendants’ offer to settle reads as follows:
The Defendants, John H Kieffer Professional Corporation and John H Kieffer offer to settle this action on the following terms:
The Defendants agree to a dismissal of this action is against the defendants, without cost, upon the Plaintiff executing a Full and Final Release.
This Offer to Settle will remain open for acceptance until one (1) minute after the commencement of the Motion for Dismissal for Delay.
[4] Thus, before considering costs claimed by the defendants, it must first be determined whether the defendants are entitled to costs given the plaintiff’s position that he had accepted the defendants’ offer to settle in accordance with the terms of the offer.
[5] As considered in my reasons for decision of April 13, 2021, at the time the defendants’ motion came before the court, the plaintiff sought an adjournment of the motion, which request was denied for the reasons set out in my decision. Upon advising the plaintiff that his adjournment request was denied, he states that he accepted the defendants’ offer whereby the action would be dismissed on a without cost basis and upon the execution by the plaintiff of a full and final release in favour of the defendants.
[6] In his submissions the plaintiff, without affidavit evidence, states that he transmitted by email to counsel for the defendants an Acceptance of Offer on the hearing of the defendants’ motion which read: “The Plaintiff, Dean Heffernan accepts your offer to settle dated March 11, 2021.”
[7] This purported acceptance of the defendants’ offer to settle was transmitted to counsel for the defendants by email. In his submissions the plaintiff states that he attempted to send his email with the Acceptance of Offer, however he received a message from Microsoft Outlook which read “message cannot be sent because it has been changed”, following which he states that he drafted another email to counsel for the defendants and reattached the Acceptance of Offer which he states was transmitted at 10:36 a.m. on the morning of the hearing of the defendants’ motion.
[8] The plaintiff takes no issue with the fact that the defendants’ offer to settle complied with the requirements of Rule 49 in that it was served at least seven days before the commencement of the hearing and that the offer did not expire before the commencement of the hearing.
[9] The question to be determined is whether the offer was open for acceptance at the time the plaintiff purports to have accepted it.
[10] The court has had to consider the proper interpretation of Rule 49.10 (2) having regard to when a trial has commenced whether with a jury or judge alone. The sub-rule reads this follows:
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
[11] In its decision in Elbakhiet v. Palmer, 2014 ONCA 544, at paras. 16 – 21, the Court of Appeal considered the issue of when a trial or hearing commences. This case involved specifically the question as it related to a trial and not one involving a pretrial motion as is the case here.
[12] The court noted that rule 49 uses the term “hearing” rather than “trial” and stated that in different circumstances these terms may have broader or narrower meanings depending on the context in which rule 49 was being engaged: para 18.
[13] The court also noted that the use of the term “hearing” in Rule 49 reflects the fact that the rule can apply to other types of proceedings and not just trials.
[14] The court in Elbakhiet concluded that in the context of a trial the weight of judicial authority suggests that a trial commences within the context of rule 49 when the evidence has been introduced.
[15] As to a civil pretrial motion such as in this case, as no viva voce evidence was offered, and recognizing that the term “hearing” as used in Rule 49 may have broader or narrower meaning in the circumstances of a particular case, I have concluded that the only reasonable interpretation is that the hearing of this motion commenced when counsel for the moving defendants first addressed the court, following which the plaintiff made his motion for an adjournment.
[16] The defendants’ offer to settle was timely and was left open for acceptance until one minute after the commencement of the motion. In my view the hearing of motion commenced at that point where counsel for the defendants first addressed the court and when the plaintiff’s adjournment motion was brought. An attempt to accept the defendants’ offer after the denial of the adjournment request was not a timely and effective acceptance of that offer: York North Condominium Corp. No. 5 v. VanHorn Clipper Properties Ltd. (1989), 1989 CanLII 4375 (ON CA), 70 OR (2d) 317 (Ont. C.A.); Magnotta v. Yu, 2021 ONCA 185.
[17] Furthermore, and although not determinative of this preliminary issue, in accordance with Rule 49.13, in exercising discretion with respect costs, I have determined that, in keeping with the plaintiff’s past conduct, he attempted to accept the defendants’ offer to settle when his adjournment request was denied solely for the purpose of avoiding cost consequences and he never had a good faith intention whatsoever of responding to the defendants’ motion and as such he should remain responsible for the defendants’ reasonable costs in any event.
[18] In the result, I have concluded that the defendants’ offer was not accepted in a timely way and as such having succeeded on this motion the defendants are entitled to costs on a partial indemnity basis as claimed by them.
[19] As to what costs are fair and reasonable in the circumstances, the plaintiff has not submitted a bill of costs, presumably because he is self represented, and I am therefore left to simply consider the reasonableness of the bill of costs submitted on behalf of the defendants.
[20] In his submissions the plaintiff asserts that the defendants have acted unreasonably in pursuing the dismissal of this action on the grounds of delay and he further make submissions with respect to prior rulings and orders made by the court relating to the conduct and scheduling of steps to be taken in this action. None of these submissions bear on the defendants’ entitlement to fair and reasonable cost in the circumstances.
[21] Counsel for the defendants seeks partial indemnity costs inclusive of disbursements and applicable taxes in the sum of $15,881.04. In my view these costs are very modest given the history of this matter, which has been outstanding since 2012, and most notably given the very modest partial indemnity hourly rates charged by the lead counsel representing the defendants.
[22] The costs inclusive of disbursements as claimed are very fair and reasonable as well as proportionate and the plaintiff should have reasonably concluded that if he was unsuccessful in this action and the motion he would have had an exposure to costs at least at this level.
[23] An order shall therefore issue requiring the plaintiff to pay to the defendants’ costs in the all-inclusive sum of $15,881.04 within 30 days.
[24] Approval as to form and content as to the order to issue in respect of these costs is hereby dispensed with.
Daley, J.
Released: June 8, 2021
COURT FILE NO.: CV-12-5720-00
DATE: 2021 06 08
ONTARIO
SUPERIOR COURT OF JUSTICE
DEAN HEFFERNAN
Plaintiff
- and -
JOHN H. KIEFFER PROFESSIONAL CORPORATION, JOHN H. KIEFFER, Barrister and Solicitor
Defendants
REASONS FOR DECISION ON COSTS
Daley, J.
Released: June 8, 2021