Court File and Parties

COURT FILE NO.: CV-18-590158

MOTION HEARD: 20201119 and 20201123

REASONS RELEASED: 20210131

WRITTEN COSTS SUBMISSIONS FILED: 20210322

COSTS ENDORSEMENT RELEASED: 20210622

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

GEORGIA SKOURTIS

Plaintiff

• and-

THE CITY OF TORONTO, MOEZ BADRUDIN WALJI, YASMIN WALJI, TUANYUAN WU and MAPLE-CRETE INC.

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: M. Gerhard E-mail: michael.gerhard@stlawyers.ca -for the Plaintiff

A. Lawson E-mail: adamlawson@shibleyrighton.com -for The City of Toronto

COSTS ENDORSEMENT RELEASED: June 22, 2021

Costs Endorsement

I. Introduction

[1] The Plaintiff adjourned the examination for discovery of Vincent Stuart, the deponent for the Defendant The City of Toronto (the “City”), to seek directions under Rule 34.14(1). The Plaintiff also sought to compel Mr. Stuart’s re-attendance and compel answers to undertakings and refusals.

[2] As set out in my Reasons For Endorsement dated January 31, 2021 (Skourtis v. The City of Toronto, 2021 ONSC 774)(the “Reasons”), significant case management was provided at 2 telephone case conferences with a view to having Mr. Stuart re-attend on his examination for 30 minutes so that the undertakings and refusals could be deferred until after the completion of all discoveries. The issues were not resolved, more case management at 2 attendances on the motion was unsuccessful and full submissions were required.

[3] Success on the motion was ultimately divided and the parties have been unable to agree on costs. They have filed written submissions pursuant to the Reasons. The Plaintiff seeks costs of $12,457.81 on a substantial indemnity scale or alternatively, $8,555.07 on a partial indemnity scale. The City submits that the parties should bear their own costs or in the alternative, that the Plaintiff is entitled to $2,000 on a partial indemnity scale.

II. Background, Law and Analysis

[4] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[5] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The court should only depart from the general rule that costs on a partial indemnity scale should follow the event for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[6] In addition to the Rule 34.14 issues raised by the Plaintiff, the dispute related to the City’s refusal to re-produce Mr. Stuart for a 30-minute re-attendance, the Plaintiff’s refusal to accept the City’s offer to complete the examination in writing and approximately 8 undertakings/refusals. As set out in the Reasons, I found that the City’s counsel did not engage in any misconduct or act improperly such that the examination was rendered futile without court intervention as required under Rule 34.14(1).

[7] However, largely due to my conclusions on the undertakings and refusals and the short virtual attendance requested, I ordered Mr. Stuart to re-attend for 30 minutes. In doing so, I rejected the City’s submissions that the Plaintiff was seeking a second attendance or a second deponent but rather the opportunity to complete Mr. Stuart’s first examination. I also rejected the City’s assertion that Mr. Stuart should not have to attend because he had retired. Underlying the Rule 34.14 motion and the re-attendance were the parties’ positions on the undertakings and refusals. The parties resolved some of these questions and I ordered the City to make certain inquiries and provide some documentation, information and/or clarifications. Counsel have advised that there have subsequently been issues with respect to Mr. Stuart’s attendance due to his retirement, however, these are not relevant to the disposition of the costs considered here.

[8] The court’s intervention should not have been necessary. Plaintiff’s counsel should have put all questions on the record, the City’s counsel should have interjected less often and put all of the City’s positions on the record, the examinations should have been completed and all undertakings and refusals considered on one motion (Reasons at para. 16). Even after the motion was brought, full submissions would have been unnecessary had the parties been more cooperative and open to a practical, efficient and proportionate resolution consistent with Rule 1.04(1).

[9] Although the parties share much of the responsibility for the conduct of this motion, taking into consideration the relevant factors and circumstances, I conclude that the Plaintiff is entitled to some costs on a partial indemnity scale. I cannot conclude that the City or its counsel acted in an abusive, reprehensible or egregious manner calling for the exceptional remedy of costs on a substantial indemnity scale (Jansari v. Jansari, 2020 ONSC 3237 at para. 8; Dyke v. Metropolitan Toronto Condominium Corporation No. 972, 2015 ONSC 2022 at para. 10). In my view, while I declined to make any findings on the Rule 34.14 motion, the City’s refusal to re-produce Mr. Stuart for 30 minutes and to provide meaningful responses, answers and/or clarifications with respect to the undertakings/refusals ultimately necessitated the motion and added unnecessary time and costs to this litigation (Rule 57.01(1)(e)(f)(g)).

[10] Based on the Plaintiff’s Costs Outline and all relevant factors, it is fair and reasonable in the circumstances, reflective of the Plaintiff’s relative success and within the reasonable expectations of the parties for the City to pay costs of the motion fixed in the amount of $4,000 to the Plaintiff within 30 days.

Costs Endorsement Released: June 22, 2021

Master M.P. McGraw