Court File and Parties

COURT FILE NO.: CV-18-00606417

DATE: 20211122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Thomas Bayes Plaintiff/Responding Party

– and –

Royal Bank of Canada, Michael Hubley, Brian Higgins, Mark McCarthy, Brenda Balsdon; Defendants/Moving Parties

COUNSEL:

Natalie C. MacDonald, Chris Randall for the Plaintiff/Responding Party

Tate McLeod, Jessica Warwick for the Defendants/Moving Parties

HEARD: November 22, 2021 (writing)

BEFORE: Sharma J.

COSTS ENDORSEMENT

[1] This is my decision on costs following the defendants’ successful motion for summary judgment, reported at Bayes v RBC, 2021 ONSC 6836. In my decision, I found that a release the plaintiff had signed was binding, resulting in an end to this action.

[2] The defendants seek $97,599.95 in substantial indemnity costs and disbursements for the action and the motion. The defendants say costs on a higher scale are sought due to a rule 49 offer to settle and because of steps taken by the plaintiff that unnecessarily lengthened the duration and costs of this action.

[3] The defendants offer to settle was served on October 15, 2019. It offered payment of $10,000 towards re-imbursement of the plaintiff’s legal costs, in exchange for a full and final release. If the offer was accepted after November 30, 2019, the plaintiff would be responsible for the defendants’ partial indemnity costs incurred from December 1, 2019 to the date of acceptance. The offer expired one minute after the commencement of the summary judgment motion being heard.

[4] Pursuant 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.

[5] The 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] OJ. No. 2634 (C.A.). In determining costs, I must consider the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the objective of access to justice.

[6] I am satisfied that a rule 49 offer was made more than seven days before the hearing, that it was not accepted, and that the plaintiff faired less favourable in this action and motion than what was offered to him. Costs on a higher scale, in my view, are appropriate.

[7] However, the issues in this case were not complex. While the action was brought against RBC and four individual defendants, the issues on this motion were the same for all defendants. There were two affidavits filed by the defendants and one by the plaintiff, plus cross-examinations. All affidavits were brief. There were also two lawyers for the defendants, one a 2001 year of call, and another a 2017 year of call, which significantly added to the defendants’ legal costs. In my view, an unsuccessful party on a motion of this nature should have anticipated full indemnity costs to be in the range of $20,000 to $30,000. However, I am satisfied that some additional costs were incurred because of the plaintiff’s conduct that necessitated further court appearances. I am also awarding costs of the action. I note that the defendants were required to prepare for a refusals motion by the plaintiff, which was never heard.

[8] Upon review of the parties’ submissions and the factors noted above, I order the plaintiff to pay the defendants’ costs of this motion and action fixed in the amount of $45,000, inclusive of HST and disbursements.

Justice M. D. Sharma

Date: November 22, 2021

COURT FILE NO.: CV-18-00606417

DATE: 20211122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Thomas Bayes Plaintiff/Moving Party

– and –

Royal Bank of Canada, Michael Hubley, Brian Higgins, Mark McCarthy, Brenda Balsdon; Defendants

REASONS FOR JUDGMENT

Justice M. D. Sharma

Released: November 22, 2021