Court File and Parties
COURT FILE NO.: CV-19-80322
DATE: 2021/06/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.H.G., Plaintiff
AND:
R.J.B., Defendant
BEFORE: Regional Senior Justice C. MacLeod
COUNSEL: Graham S. Ragan & Justin McCarthy, for the defendant, moving party
D. Larry Segal, for the plaintiff, responding party
HEARD: Costs submissions in writing
COSTS DECISION
[1] On April 1, 2021, I released a decision in relation to a motion argued in December. See 2021 ONSC 2467. The plaintiff had commenced both a family law proceeding and a tort action. I have now received written costs submissions.
[2] Although I did not strike the tort claim and I did not order “consolidation” as such, I did strike a component of the claim as pleaded, struck the jury notice and ordered the proceedings to be jointly case managed with a view to being tried together. Although I found that the method by which the plaintiff had proceeded was in accordance with the rules and the statutory scheme, there remains a significant risk of duplicate costs and it remains to be seen if there is any utility or merit in the second proceeding.
[3] There was a certain novelty to the issues and little guidance in the jurisprudence concerning parallel civil and family litigation. Since there was some relief granted against the plaintiff, success can properly be seen as divided and the costs should be considered in that light. In addition, since this motion was brought in the tort proceeding and argued as a civil motion, the costs award is governed by the Rules of Civil Procedure.
[4] Under the civil rules, costs of a motion are to be fixed and payable forthwith unless another order would be more just. In this case, as it remains entirely possible that the tort claims are subsumed in the corollary relief in the divorce proceeding, the utility of a second action is very much in question.
[5] I am in agreement with the submissions of counsel for the defendant that a reasonable award of partial indemnity costs for a motion of this complexity would be considerably less than the amount sought by the plaintiff.
[6] Under the circumstances, I am fixing the costs of the motion at $8,500.00 on a partial indemnity scale to be paid “to the plaintiff in the cause”. That is to say that, subject to the discretion of the trial judge, those costs will be added to any costs awarded to the plaintiff if the plaintiff is successful in the tort action. If the plaintiff is not successful in this action, there will be no costs of this motion.
Mr. Justice C. MacLeod
Date: June 15, 2021
COURT FILE NO.: CV-19-80322
DATE: 2021/06/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: M.H.G., Plaintiff
AND:
R.J.B., Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Graham S. Ragan & Justin McCarthy, for the defendant, moving party
D. Larry Segal, for the plaintiff, responding party
COSTS DECISION
Regional Senior Justice Calum MacLeod
Released: June 15, 2021