Court File and Parties

COURT FILE NO.: CV-17-567438

DATE OF ENDORSEMENT: 20210303

WRITTEN COSTS SUBMISSIONS FILED: 20210322

COSTS ENDORSEMENT RELEASED: 20210623

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

TITUS STEEL COMPANY LIMITED Plaintiff

• and-

WAYNE ROBERT HACK, 9589864 CANADA INCORPORATED doing business as PROGRESSIVE ARMOR and PROGRESSIVE ARMOR INCORPORATED USA Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: F.S. Turton Email: scott@scottturtonlaw.com

• for the Plaintiff

A. Seretis Email: aseretis@sotosllp.com

• for the Defendants

COSTS ENDORSEMENT RELEASED: June 23, 2021

Costs Endorsement

I. Introduction

[1] As set out in my Endorsement dated March 3, 2021, the Plaintiff brought a motion to compel the Defendants and various non-parties to produce documentation and information. All of the relief with respect to the Defendants was resolved on consent or withdrawn. The parties agreed to file written costs submissions. The Plaintiff seeks costs of $14,352.16 and the Defendants request $5,278.23, both on a partial indemnity scale.

II. Background, Law and Analysis

[2] 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).

[3] 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 general rule is that costs on a partial indemnity scale should follow the event which should only be departed from 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). Costs are not generally awarded when a motion proceeds on consent unless, as here, the parties have agreed to deal with costs separately and/or where the motion would unlikely have proceeded on consent without deferring costs (Kearney v. Hill, 2017 ONSC 6306 at paras. 27-31; Muskala v. Sitarski, 2017 ONSC 2842 at paras. 5-12).

[4] The Plaintiff submits that the motion was necessitated by the Defendants’ failure to comply with the order of Master Muir dated July 4, 2019 which, among other things, compelled the corporate Defendants to produce financial documents and information (the “Order”). An attendance was required before Master Muir on December 3, 2019 to settle the form of the Order. The Defendants were ordered to produce the documents within 90 days and to pay $500 in costs. They delivered the documents on March 3, 2020, the last day for doing so and after the Plaintiff brought another motion for non-compliance with the Order. This second motion came before Sanfilippo J. on March 5, 2020, who held that the Defendants’ late delivery of their documents and responding materials meant that the motion was no longer a non-compliance motion but an insufficient or inadequate compliance motion which must be brought before a Master. Sanfilippo J. dismissed the motion without prejudice to the Plaintiff’s right to bring the motion before a Master and ordered the Defendants to pay costs of $600.

[5] Consistent with Sanfilippo J’s endorsement, the Plaintiff then brought this motion before a Master which was originally returnable on April 17, 2020 but did not proceed due to the suspension of regular court operations as a result of the COVID-19 pandemic. The motion was scheduled to proceed on December 4, 2020, however, the Plaintiff adjourned the motion to cross-examine the Defendant Wayne Robert Hack on his responding affidavit. The Plaintiff submits that its affidavit sworn in March 2020 and the cross-examination of Mr. Hack resulted in additional documentation and information being produced. The Defendants submit that nothing further was produced. The Plaintiff served an Amended Notice of Motion on February 9, 2021 seeking additional productions from two non-parties together with 2 new affidavits. The Plaintiff ultimately abandoned most of the relief sought against the Defendants.

[6] The costs of the motions and the attendances before Master Muir and Sanfilippo J. have been dealt with and are not at issue. The Plaintiff is claiming costs of this motion, including for the cross-examination and service on a non-party. It is difficult to determine on the record before me what the present motion achieved or if it was necessary. Given the Defendants’ previous conduct with respect to the financial productions, I am satisfied it was reasonable for the Plaintiff to recast its motion as provided for by Sanfilippo J. and bring it before a Master. It also appears that, at the very least, the motion did yield some documentation and information which should have been produced sooner including some which appears to have assisted in obtaining documents from the non-parties (Rules 57.01(1)(e)(f)(g)). The Defendants also consented to Mr. Hack’s re-attendance on discovery.

[7] However, in my view, the amount which the Plaintiff is seeking based on 50.3 hours is disproportionate and not within the reasonable expectations of the parties in the circumstances. Not only does the amount contain time and costs which I am not satisfied is claimable (for example, costs of service on a non-party), the amount must also reflect what was reasonable and necessary and take into account that the Plaintiff ultimately abandoned most of the relief against the Defendants. It must also reflect unnecessary costs incurred by the Defendants and the limited value of the cross-examination and additional affidavits.

[8] Having reviewed both parties’ Costs Outlines, I conclude that it is fair and reasonable and within the parties’ reasonable expectations for the Defendants to pay costs to the Plaintiff of this motion fixed in the amount of $2,800 within 30 days.

Costs Endorsement Released: June 23, 2021

Master M.P. McGraw