COURT FILE NO.: CV-16-553828 DATE: 2021-07-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMANDA WALTI Plaintiff AND: MUQARABI ELLAHI and MUBASHAR AHMAD Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: D. Levy and D. Cervini, for the Plaintiffs D. Himelfarb, for the Defendants

HEARD: July 7, 2021 in writing

ENDORSEMENT

Overview

[1] On May 19, 2021, I heard the Plaintiff’s motion to amend the Statement of Claim to increase the amount claimed to $2,000,000 and for an order striking the jury. The Defendants brought a cross-motion for two medical assessments of the Plaintiff. I released by endorsement on May 25, 2021. The Plaintiff was successful with respect to her motion to amend the Statement of Claim. The Defendants were successful with respect to both opposing the Plaintiff’s motion to strike the jury and their motion to compel the Plaintiff to attend a medical assessment. I reserved on the issue of costs.

[2] The parties were unable to come to an agreement with respect to the costs of the motions. The parties filed brief costs submissions.

[3] The Defendants argue that they were completely successful in their motion to compel the Plaintiff to attend two further medical assessments and to dismiss the motion to strike the jury. The Defendants did not oppose the Plaintiff’s motion to increase the prayer for relief. They argue that as the successful party, they are entitled to costs on a partial indemnity basis. They claim partial indemnity costs in the amount of $7,394.82 inclusive of counsel fee, disbursements and HST.

[4] The Plaintiff argues that the court should not focus exclusively on the results. The Plaintiff states that the motion to strike the jury was a necessary step in the current climate. With respect to the motion for the medical assessments, the Plaintiff argues that the Defendants sought an indulgence of the court. The Defendants had failed to comply with the Rules of Civil Procedure and the court-ordered timetable with respect to the delivery of expert reports. The Plaintiff states that when a party brings an “indulgence motion” it is not expected costs will be awarded even when the indulgence is granted: Ravendra Homes Ltd. v. 1372708 Ontario Inc., 2010 ONSC 5784, at para. 8-9.

Analysis

[5] There was divided success on the motions. Although the Defendants did not oppose the Plaintiff’s motion to increase the prayer for relief, the Plaintiff was required to bring the motion and the relief was granted. The Plaintiff was successful with respect to the motion to increase the amount claimed. The Plaintiff is not seeking any costs for this motion.

[6] The Defendants were seeking an indulgence of the court with respect to the motion for further medical assessments. The Defendants failed to arrange medical examinations in a timely manner. The first request for the assessments was made just a few days before the pre-trial. The physiatry assessment was scheduled for a date three weeks before trial. No psychological assessment was arranged. The Plaintiff opposed the request because of the effect it may have on the scheduled trial date. As a result of the effect the pandemic has had on the court’s scheduling, the trial could not proceed as scheduled during the sittings commencing May 31, 2021. Therefore, the medical examinations could proceed without affecting the trial date and I granted the Defendants’ motion. The Defendants obtained an indulgence of the court. I find that the Defendants are not entitled to their costs of this motion.

[7] That leaves the costs with respect to motion to strike the jury. As noted by the Plaintiff, there have been several motions to strike the jury because of the effects of the pandemic in the last year. Some of the cases were successful and some were not. The law on this important issue was being developed. Only a short time before the motion was heard, the parties were advised by the trial co-ordinator that the trial could not proceed as scheduled even if the jury was struck. At that time, the motion had been prepared and served on the Defendants. I am of the view that it was reasonable for the Plaintiff to bring this motion.

[8] Although it was reasonable for the Plaintiff to bring the motion, the Plaintiff was unsuccessful. I am mindful of the general rule that costs follow the event, except in exceptional circumstances. The Defendants were successful with respect to the motion to strike the jury and are therefore entitled to costs of the motion. I fix the costs in the amount of $750 inclusive of counsel fee, disbursements and HST.

[9] In exercising my discretion to assess costs, I considered the factors identified in Rule 57.01 of the Rules of Civil Procedure. I also considered the overall objective of any costs award; that it be fair and reasonable and within the reasonable expectation of the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26, 38. I am of the view that the amount of costs sought by the Defendants is high in all the circumstances and above the reasonable expectation of the Plaintiff for this motion. The issues were important but not novel. The Plaintiff did not take any position which tended to unnecessarily lengthen the proceeding.

Disposition

[10] For the reasons set out above, I award costs of the motion to strike the jury to the Defendants fixed in the amount of $750, inclusive of counsel fee, disbursements and HST. The costs are payable by the Plaintiff to the Defendants within 30 days of the date of this endorsement.

DATE: JULY 7, 2021