Ontario Superior Court of Justice
RE: PRO PROPERTY (LONDON) INC., Plaintiff
AND:
VICTOR FRIJIA, SOUTHSIDE CONSTRUCTION MANAGEMENT LIMITED, FICEL MARKETING CORP., RON ELLIS, TEAM OF ’72 REPRESENTATION INC., SUMMIT SERIES CELEBRATION INC. and ROBERT BLACK, Defendants
AND RE: SOUTHSIDE CONSTRUCTION MANAGEMENT LTD., VITO FRIJIA and SUMMIT SERIES CELEBRATION INC., Plaintiffs by Counterclaim
AND:
PRO PROPERTY (LONDON) INC. and PETER DAVID MUNRO, Defendants by Counterclaim
AND RE: ROBERT BLACK, Plaintiff by Counterclaim
AND:
PRO PROPERTY (LONDON) INC. and PETER DAVID MUNRO, Defendants by Counterclaim
BEFORE: Justice Mohan D. Sharma
COUNSEL: David Decker, for the Defendants, Vito Frijia, Southside Construction Management Limited, Summit Series Celebration Inc., Ron Ellis and Team of ’72 Representation Inc. (Moving Parties)
Anne Marie Frauts, for the Defendant, Robert Black (Moving Party)
No one appearing, for the Defendant, Ficel Marketing Corp.
Brent Pulford (non-lawyer designate) for the Plaintiff, Pro Property (London) Inc. or for the Defendant by Counterclaim, Peter David Munro
HEARD: August 13, 2021
ENDORSEMENT
1There are two motions.
The First Motion
2The first motion is brought by five defendants: Vito Frijia, Southside Construction Management Limited, Summit Series Celebration Inc., Ron Ellis and Team of ’72 Representation Inc. (the “five defendants”). They seek the following relief:
(a) An order dismissing this action for delay, for failure to comply with various prior orders of this Court;
(b) Summary judgment, dismissing the action of the plaintiff Pro Property (London) Inc. (“Pro Property”) on substantive grounds;
(c) An order granting summary judgment to the defendant by counterclaim, Southside Construction Management Limited (“Southside”) against Pro Property on Southside’s counterclaim for:
(i) $750,000, plus prejudgment interest from June 7, 2012
(ii) a declaration that Southside holds a first in priority security interest in certain hockey jerseys and an order that Southside is at liberty to deal with them in any lawful manner it chooses.
(d) An order dismissing Mr. Black’s crossclaim against the moving parties and an order dismissing the crossclaim of Team of ’72 Representation Inc. and Ron Ellis against Black, should Pro Property’s action be dismissed.
(e) An order for costs of this motion on a substantial indemnity basis.
3The affidavits of service, sworn by Patricia Soper, evidence that the five defendants’ motion record, supplementary motion record and factum were served on Pro Property and the defendant by counterclaim, Peter David Munro (“Mr. Munro”) prior to today’s motion.
The Second Motion
4The defendant, Robert Black, brings a motion to have the plaintiffs’ action dismissed for delay and want of prosecution.
5The affidavits of service, sworn by Samantha Crosby, evidence that the motion record, amended notice of motion, and factum were served on Pro Property and Mr. Munro.
Failure to File Responding Material
6The plaintiff, Pro Property, and the defendant by counterclaim, Mr. Munro, failed to file any responding material. Master Abrams, in an endorsement dated November 10, 2019, found that Pro Property is Mr. Munro’s alter ego.
7Pro Property did not have counsel appear at today’s motion. Mr. Munro did not have counsel appear, nor did he appear on his own behalf.
8Mr. Brent Pulford, a non-lawyer, appeared as a “designate” on behalf of Pro Property and Mr. Munro. Mr. Pulford is an acquaintance of Mr. Munro. While he is not a lawyer, I granted Mr. Pulford an opportunity to make brief oral submissions which was a written statement prepared by Mr. Munro. In those submissions that Mr. Pulford read, Mr. Munro apologized for not complying with prior court orders, stated that he was impecunious, maintained that he had been wronged and that there was a valid claim, and alluded to other evidence that was not before the Court by way of affidavit. When asked by the Court why Mr. Munro did not attend himself, Mr. Pulford advised that Mr. Munro suffers from illness which prevented him from being before the court today.
9In his endorsement from Civil Practice Court dated April 14, 2021, which resulted in these motions being scheduled, Justice Myers stated in bold:
Mr. Munro is on notice that if he wishes to participate in the motions, he is required to serve sworn evidence in the claim against him personally and the plaintiff is required to serve its evidence according to the timetable below.
10The points to which Mr. Pulford spoke and as contained in Mr. Munro’s written statement would have been carefully reviewed and considered by the Court had they been submitted in evidence by way of affidavit. This evidence could and should have been submitted, which was possible even without Mr. Munro making oral submissions today. As he was able to prepare written submission for Mr. Pulford to read, I find it difficult to understand why he could not have prepared affidavit evidence. This did not occur, despite the very clear direction to Mr. Munro and Pro Property set out in Justice Myers’ endorsement. Mr Munro and Pro Property had clear notice that this was required.
11Mr. Pulford did not ask for an adjournment on behalf of Mr. Munro or Pro Property. Even if he had, given the history of delay in this case which I refer to below, it would have been unfair to the moving parties to adjourn today’s motion to afford Mr. Munro and Pro Property an indulgence to submit proper affidavit evidence.
12Ficel Marketing Corp., a further defendant in the main action, did not file material in response to this motion and no one appeared on its behalf.
Brief Reasons
13The factual matrix and lengthy procedural history to this action is fully set out in the respective factums of the moving parties and the affidavit evidence in support of these motions. I need not repeat what is contained therein.
14The materials clearly set out: procedural delay on the part of the plaintiff and Mr. Munro; numerous motions that were scheduled, adjourned, or delayed as result of the conduct of Pro Property and Mr. Munro; a failure to abide by court orders; and, a want of prosecution.
15With respect to the five defendants’ motion for summary judgment, Pro Property and Mr. Munro have failed to file any material in response to this motion. A failure of a responding party to put its “best foot forward” – or in this case, any evidence – in response to a motion for summary judgment can be determinative: Sweda Farms v Egg Farmers of Ontario, 2014 ONSC 1200 at para 26, aff’d 2014 ONCA 878. I am satisfied based on the affidavit material filed that Southside is entitled to the summary judgment it seeks.
16In addition, for the reasons set out in the moving parties factums which I adopt, I find that the balance of the relief sought on both motions should be granted in favour of the moving parties. Accordingly, I grant judgment as set out in the draft Judgment submitted by the moving parties and appended to these reasons.
Costs
17The five defendants have filed a Costs Outline for this motion and the action. Partial indemnity costs have been calculated at $418,134.50. However, they seek $355,032.78 in costs, inclusive of disbursements and HST. They are seeking less than partial indemnity costs taking into account previous cost awards ordered and which have been paid (totaling $26,875.00) and one that has not ($16,277.98).
18The defendant, Robert Black, has also filed a Costs Outline for this motion and action. He seeks $48,916.48 in partial indemnity costs or $62,095,67 in substantial indemnity costs, inclusive of disbursements and HST.
19Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs.
20The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.). In determining costs, I have considered the factors set out in rule 57.01(1), the moving parties’ submissions, as well as the conduct of Pro Property and Mr. Munro in this action and their failure to respond to this motion.
21The uncontradicted evidence is that the plaintiff has been significantly delinquent in its prosecution of this action. As noted above, Master Abrams has found that Pro Property is Mr. Munro’s alter ego. There were numerous motions as a result of Pro Property and Mr. Munro’s failure to move the action forward. Together, Pro Property and Mr. Munro have failed to comply with prior court orders. They have unnecessarily prolonged this proceeding by switching counsel, ignoring court orders, and avoiding court attendances and examinations. In my view, the evidence is clear that Pro Property and Mr. Munro have abused the court process at significant costs to the parties and have wasted scarce judicial resources.
22Accordingly, I find that Pro Property (London) Inc. and Peter David Munro are jointly and severally liable for payment of the following cost awards:
(a) $355,032.78, inclusive of disbursements and HST, payable to the five defendants; and
(b) $62,095.67, inclusive of disbursements and HST, payable to Robert Black.
Justice Mohan Sharma
Date: August 13, 2021