Court File and Parties

COURT FILE NO.: CV-19-2035 COURT FILE NO.: 35-2122786 DATE: 2021-07-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Wayne Flight c.o.b. as Heritage Painters & Services and Amber Nicole Flight, Plaintiffs AND: John Adamson, Defendant AND RE: In the Matter of the Bankruptcy of Brian Wayne Flight

BEFORE: Justice Tranquilli

COUNSEL: Tara Vasdani, for the Plaintiffs C. Haddon Murray, for the Defendant

ENDORSEMENT ON COSTS

[1] By reasons released June 15, 2021, I held that the plaintiff did not require leave under s. 215 of the Bankruptcy and Insolvency Act to bring his action against the defendant. I directed that if the parties could not resolve costs, brief written submissions could be made, of no more than three pages in length, double-spaced and standard formatting. No reply could be filed without leave.

[2] The parties did not resolve costs. Both parties exceeded my direction on the page limit. The plaintiff requested leave to file a reply to correct alleged inaccuracies in the defendant’s submissions. The request for leave to file a reply is dismissed. I have ample evidence before me to address what should have been a straightforward issue.

[3] The plaintiff seeks costs of $38,000 on this motion. The defendant, although unsuccessful in opposing the motion, seeks $32,638.87. Each argues the motion was complicated and delayed by the conduct and position of the other party.

[4] The defendant also advised he has appealed my decision and submits that this costs disposition is therefore stayed pursuant to s. 195 of the Bankruptcy and Insolvency Act. The defendant notes that the matter before me was the plaintiff’s amended motion for directions. The defendant therefore seeks substantial indemnity costs of $32,634.34 in respect of the plaintiff’s original motion for directions and submits that costs of the plaintiff’s amended motion should be deferred pending the appeal.

[5] I do not accept that my jurisdiction to determine costs is stayed by s.195 of the Bankruptcy and Insolvency Act. A deferral of costs pending appeal is not practical or efficient. Costs are inherent to the decision under appeal.

[6] The plaintiff’s submission for costs of $38,000 is disproportionate and unjustified. Review of the bill of costs suggests that all costs of the proceedings to date are sought, including the ill-fated effort by the bankrupt to bring an action against the plaintiff’s former bookkeeper and amending the statement of claim.

[7] This decision made no findings on the merits of the plaintiff’s allegations against the defendant and deferred any issue as to the propriety of the pleadings to a later motion, if necessary. If I am in error and the plaintiff’s bill of costs identifies only those costs related to the issues on this motion, the costs nevertheless are excessive and unjustified in terms of the hours spent on a procedural motion. For example, the time spent by plaintiff counsel on telephone communications is inexplicable in the context of this motion.

[8] Similarly, the defendant’s submissions as to the plaintiff’s liability for costs seems misdirected at this stage. The submissions speak to the merits of the litigation and the sufficiency of the pleading and the original motion for directions that was not before me.

[9] Both submissions are focussed on arguing the merits of the pleading and the action. I acknowledge that the defendant’s position on the motion required submissions as to whether the plaintiff met his evidentiary burden for leave under s. 215 to be granted. However, it remains difficult to parse the points relevant to costs of the motion from the rest of the voluminous submissions.

[10] Again, as I had hoped I had made clear in my decision, although I held the plaintiff did not require leave to bring his action, I made no findings as to the sufficiency of the pleadings, whether they disclosed a reasonable cause of action, whether they were a collateral attack or whether there was a genuine issue requiring trial. Those remain to be determined later, if pursued by the parties.

[11] This should have been a simple procedural motion to the court based upon s. 215 of the Bankruptcy and Insolvency Act. I also note that both parties far exceeded the 20-page limit set for factums and that neither requested leave, as required by the Consolidated Provincial Practice Direction.

[12] Given the similarities between the parties’ position on costs and the focus on the merits of the proceeding, I fix costs of this motion at $10,000, payable in the cause.

Tranquilli J.

Date: July 21, 2021