Court File and Parties

COURT FILE NO.: 17-72428 DATE: October 12, 2021 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roger and Rana Nemr, Plaintiffs AND: 9100288 Canada Inc., A.N.T. Electronics Ltd., Wissam Kazan, Edmond Lee Investments Limited and Hydro Ottawa Limited, Defendants

BEFORE: Justice Patrick Hurley

COUNSEL: Paul H. Auerbach, for the Plaintiffs Debbie Orth, for the Defendant 9100288 Canada Inc. Colin R. Dubeau, for the Defendant Hydro Ottawa Limited Lucas Cutler, for the Defendant Wissam Kazan

HEARD: In writing

Endorsement on costs

[1] I dismissed the motion for summary judgment by the defendant 9100288 Canada Inc. (“910”): 2021 ONSC 4733. The parties could not agree on the costs of the motion and made written submissions.

[2] The plaintiffs submit that the costs should be on a substantial indemnity basis because 910 acted unreasonably by making the motion. They rely on rule 20.06. They also made a settlement offer that 910 should have accepted instead of proceeding to a hearing. The amount claimed is $19,367.07 inclusive of disbursements and HST.

[3] 910 asserts that it acted reasonably because the motion had considerable merit and it was, in the circumstances, a proportionate, timely and affordable procedure. It proposes that the costs be on a partial indemnity basis and the appropriate amount is $7,301 inclusive of disbursements and HST.

[4] In deciding the scale of costs, I adopt the reasons of Schreck, J. in Himidan v. 2546579 Ontario Inc., 2018 ONSC 6037 at paras. 7 – 11.

[5] In this case, Associate Justice Kaufman did a case conference and permitted 910 to proceed with the motion. He did not make any comment about the appropriateness of the motion or the prospect of substantial indemnity costs if the motion was dismissed. Nor is there anything in his endorsement about the plaintiffs objecting to the motion; indeed, he stated that the plaintiffs and Hydro Ottawa intended to oppose the motion but did not argue that the issues were not suitable for summary judgment.

[6] I am not precluded from awarding substantial indemnity costs because it is still incumbent upon me to decide whether rule 20.06 applies but I am influenced by his ruling, particularly now when many jurisdictions schedule case conferences for long motions and often at a preliminary stage before extensive materials are exchanged by the parties. It is important that the parties use this opportunity to identify the reasons why the proposed motion should not be scheduled or suggest other means to achieve the objectives of proportionality, timeliness and affordability.

[7] As I noted in my decision, the Court of Appeal has repeatedly emphasized that a motion judge must be alert to the risk of inconsistent findings at trial and that partial summary judgment should be considered a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action. I do not find that 910 engaged in any improper conduct but the motion was misguided, has caused delay and added unnecessary costs.

[8] Moreover, the record was voluminous, the motion was important to the plaintiffs and they made a reasonable attempt to resolve it without hearing.

[9] I have concluded that a fair and reasonable amount for costs on a partial indemnity basis is $12,500 inclusive of disbursements and HST. 910 shall pay this amount to the plaintiffs within 30 days.

______________________________ Hurley, J

Date: October 12, 2021