COURT FILE NO.: CV-18-600000

MOTION HEARD: 20201118

ENDORSEMENT RELEASED: 20201118

WRITTEN COSTS SUBMISSIONS FILED: 20210706

COSTS ENDORSEMENT RELEASED: 20211012

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

AMANDA DUNNING

Plaintiff

• and-

COLLIERS MACAULAY NICOLLS INC. and DANIEL HOLMES

Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: A. Dunning E-mail: plaintiffamandadunning@gmail.com -Plaintiff, Self-Represented

R.B. Macdonald E-mail: rmacdonald@foglers.com -for the Defendants

COSTS ENDORSEMENT RELEASED: October 12, 2021

Costs Endorsement

I, Introduction

[1] This is an action by the Plaintiff for breach of contract arising from an alleged verbal offer of employment and misuse or theft of intelligence. The Plaintiff brought a motion to compel the Defendants to deliver a further and better Affidavit of Documents. As set out in my Endorsement dated November 18, 2020, significant case management was provided and I made various orders and directions with respect to 9 document categories. I also ordered a timetable for examinations for discovery, mediation and the scheduling of any motions arising from examinations for discovery all to be completed by April 30, 2021.

[2] The orders and directions required the Defendants to make further efforts and inquiries to locate or confirm whether certain documents existed and deferred some of the Plaintiff’s requests to be dealt with on examinations for discovery. The Plaintiff also made additional requests all of which were deferred to examinations for discovery. Costs of the motion were deferred to a future attendance before me.

[3] The parties scheduled a telephone case conference before me on June 1, 2021 to speak to the timetable and costs of the motion. The parties advised that none of the steps in the timetable had been completed. I ordered an amended timetable (with the previous steps to be completed by September 30, 2021) and a timetable for written costs submissions with respect to the motion (with all costs submissions including reply to be delivered by July 6, 2021).

[4] The Plaintiff seeks costs of the motion in the amount of $4,039.56 comprised entirely of disbursements including filing fees; courier and fax expenses; supplies, printing and binding; court reporter, transcripts and related costs; and travel expenses. Alternatively, the Plaintiff requests under Rules 57.01(1)(f),(g) and (i) some, a portion or half of Defendants’ counsel’s expected fees and disbursements of $30,000-$40,000 in addition to the Plaintiff’s costs “for deliberate time wasted and inaccurate or unnecessary client billing”. The Defendants submit that costs of the motion should be reserved to the trial Judge.

II. The Law and Analysis

[5] 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 its 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).

[6] 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 except 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).

[7] For the reasons that follow, I conclude that it is fair, reasonable and appropriate in the circumstances to reserve the costs of the motion to the trial Judge.

[8] Success was divided on the motion. The Defendants were ordered to make numerous inquiries and ultimately delivered a Supplementary Affidavit of Documents with 6 documents. The Defendants were also directed to make inquiries in order to confirm whether certain documents sought by the Plaintiff existed or that all relevant documents in certain categories had been produced. While the Defendants submit that the motion was unnecessary, unreasonable and did not assist in moving this action forward, I am unable to make this determination at this early stage in the proceedings where examinations for discovery have not been held. At the same time, certain of the Plaintiff’s requests were deferred to examinations for discovery.

[9] The Plaintiff’s record in support of her costs submissions is approximately 321 pages. Many of her submissions and supporting documents speak to the merits of her claims in the overall action, not the merits of this motion. Further, some of the costs which she is claiming appear to be related to the overall action and are not specific to this motion. The Defendants have also made submissions regarding the merits of this action, arguing that the Plaintiff’s allegations have no basis in fact.

[10] Given the divided success, the early stage of the proceedings and the submissions of the parties, I conclude that an assessment of the reasonableness and necessity of the Plaintiff’s motion, the conduct of the parties with respect to the motion and other relevant factors under Rule 57.01(1) is more appropriately reserved to the trial Judge (Fincantieri Marine Systems North America Inc. v. Annan Energy Ltd., 2015 ONSC 2395 at paras. 7-10). In my view, it would not be appropriate to fix costs at this time as the trial Judge will be in a better position to assess all relevant factors on a complete record after all steps in these proceedings have been completed.

[11] In all of the circumstances, I am satisfied that the costs of the motion should be costs in the cause.

Released: October 12, 2021

Associate Justice McGraw