CITATION: West Nipissing v. MX Constructors Inc., 2021 ONSC 8082

COURT FILE NO.: CV-16-6383

DATE: 2021/12/14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Municipality of West Nipissing v. MX Constructors Inc., Steven Morrison and Bernard Morrison

BEFORE: Ellies R.S.J.

COUNSEL: Michael Sirdevan, for the Plaintiff William J. Leslie, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] The defendants sought an order under r. 31.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, granting them leave to examine a non-party, Marc Gagnon, under oath. The plaintiff resisted that request.

[2] For reasons dated June 22, 2021 (2021 ONSC 4462), I granted the motion. However, in my reasons, I pointed out that the materials filed in support of the motion made it difficult to determine how Mr. Gagnon’s evidence was relevant and that I was only able to make that determination by asking certain questions of counsel for the moving party during the hearing. As a result, I indicated that I was “not inclined” to award the defendants their costs but permitted the parties to make written submissions on that issue if they wished. Both sides have done so.

[3] The defendants seek partial indemnity costs for the motion in the amount of $13,916.32. The plaintiff opposes any award of costs being made in favour of the defendants based on the inadequacy of the defendants’ motion materials. Notwithstanding the comment I made in my earlier reasons, I have concluded that the defendants should be awarded costs in the amount of $3,500, all-inclusive, for the following reasons.

[4] This was the defendants’ second attempt at obtaining an order to examine Mr. Gagnon. The first attempt was made in a motion argued on January 31, 2020. In that motion, the defendants sought to examine both Mr. Gagnon and another former employee of the plaintiff, Luc Rifou. I delivered oral reasons at the conclusion of the motion in which I held that the defendants had failed to establish that they had been unable to obtain the information they sought both from the plaintiff and from the non-parties, as required by r. 31.10. I dismissed the motion, but without prejudice to the defendants to move again for the same relief, once they had made efforts to satisfy these requirements.

[5] The defendants then wrote to both non-parties, asking for an opportunity to meet with them. Mr. Rifou responded; Mr. Gagnon did not. Eventually, counsel for the defendants arranged with Mr. Rifou’s lawyer, Richard Pharand, to obtain an affidavit from Mr. Rifou and to cross-examine him. Mr. Rifou’s affidavit was filed in support of the motion. The defendants thus satisfied the requirement that they make efforts to obtain the information directly from the non-parties.

[6] In my reasons on the present motion, I also held that the defendants had satisfied the requirement that they attempt to obtain the information from the plaintiff. I held that, although the defendants ought to have done so during the examination for discovery of the plaintiff’s representative, it was unlikely that they would have obtained it that way, given the position of plaintiff’s counsel that the evidence was irrelevant.

[7] Thus, the defendants satisfied the two requirements of r. 31.10 in the present motion that they had failed to satisfy previously. The deficiency this time around was with respect to the relevance of the information. Because relevance was not raised as an issue in the 2020 motion, I can see why it might not have been the focus of the defendants on this motion. For that reason, I believe that they should be awarded at least some costs. However, those costs should still reflect the moving parties’ duty to satisfy all of the requirements of the rule any time they seek to invoke it and the failure of the materials filed to do that, or at least to do it very obviously: Merkinger v. Jantree No. 3 Limited Partnership & Snapdragon Ltd., 2004 54552 (ONSC), at para. 46.

[8] As part of their costs on the motion, the defendants seek reimbursement for the fees they paid Mr. Pharand, in the amount of $5,791.25. In my view, it would not be appropriate to include any part of those fees in the costs awarded on the motion. Mr. Rifou’s evidence was not obtained in support of the motion; it was obtained in support of the action. That was the whole purpose of bringing the 2020 motion.

[9] I agree with the plaintiff’s submissions that the remaining costs of $8,125.07 are excessive in light of the poor quality of the motion materials which, as plaintiff’s counsel has pointed out, did not even include a factum.

[10] At the conclusion of the 2020 motion, I awarded costs to the plaintiff in the amount of $3,500, all-inclusive. I believe that it is fair and reasonable to award the same amount this time around to the defendants, and I so order.

M.G. Ellies R.S.J.

Date: December 14, 2021