Court File and Parties

Court File No.: 4749/17 Date: 2022 03 03

Ontario Superior Court of Justice

Between: THE REGIONAL MUNICIPALITY OF HALTON, Plaintiff

And: DAVID ATSUSHI OHASHI, PAMELA GLORIA OHASHI, SYNTEG INC., SYPAR LIMITED LIABILITY COMPANY, MARINO WOO, FLOVAL EQUIPMENT LTD., TODD McLAREN, JOHN DOE INC. AND JOHN DOE, Defendants

Before: Daley J.

Counsel: Talia Gordner, for the Plaintiff Paul Starkman, for the Ohashi Defendants

Heard: in chambers

Reasons for Decision as to Costs

[1] This decision follows my reasons for decision re: Wagg Orders released January 10, 2022.

[2] The plaintiff initially requested a case conference for the court to consider the scope of the Wagg Orders and what materials addressed by those orders could be shared or used with respect to the plaintiff Ohashi's wrongful dismissal action.

[3] I determined that the questions at stake had to be determined by way of a motion and as such the matter was returnable before me.

[4] In its motion, the plaintiff sought what was described as "declaratory" relief, which was not available by way of a motion.

[5] The responding defendants purported to consent to the plaintiff's motion, however as noted at paragraph [4] of my reasons for decision – in fact, the defendants were not offering anything in the form of consent, having regard to the very specific and critical ambit of disclosure and production as provided by the Wagg Orders. The defendants were conflating the identification of certain Wagg documents within an affidavit of documents in the plaintiff's wrongful dismissal action on the one hand with the very restrictive provisions of the Wagg Orders and as such their purported consent was in no way responsive to the plaintiff's motion. For whatever strategic reasons motivated the defendants – the plaintiff had no option but to proceed with the motion.

[6] While the plaintiff sought some relief which was not available on this motion – overall the plaintiff was successful in obtaining the only available relief.

[7] Therefore, the plaintiff is entitled to the costs of this motion. The defendants Ohashi concluded their submissions by stating that they should be awarded partial indemnity costs in the sum of $5,664.13 or alternatively that no order as to costs be made.

[8] The plaintiff seeks costs on a substantial indemnity basis and asserts that the Ohashi defendants forced the plaintiff to needlessly bring the motion without any proper foundation for doing so.

[9] While I am left to conclude that the defendants, for some strategic reason which I say was ill advised, felt they must oppose this motion and at the same time assert that they were consenting to it, all of which certainly comes close to conduct that might cause a court to award substantial indemnity costs against them – I have concluded that their conduct was not so egregious as to warrant such an award. I must say that this was a close call.

[10] As to the proper, fair and reasonable partial indemnity costs, counsel for the defendants asserts that time outlined in the plaintiff's costs outline does not all relate to issues connected with the subject motion. I disagree. Were it not for the defendants’ strategic gamesmanship – the plaintiffs would not have had to incur the time spent and legal costs as set out in their costs outline.

[11] On a partial indemnity basis, inclusive of disbursements and applicable taxes, the plaintiff seeks costs in the total sum of $9,894.76.

[12] Comparing the time spent by counsel, it is notable that the total docketed time incurred by counsel on behalf of the plaintiff was 18.5 hours as compared to 20.3 hours of docketed time incurred by counsel for the defendants. The hourly rates applied by both counsel resulted in the difference in their partial indemnity fee components. Ms. Gordner (2012 call) has a partial indemnity hourly rate of $434 as compared to Mr. Starkman (1994 call) whose partial indemnity hourly rate is $350.

[13] Having considered the factors in Rule 57 of the Rules of Civil Procedure, as well as the importance of the motion with respect to the proper identification and handling of documents and records which are the subject of Wagg Orders, time spent and the results achieved, and considering the conduct of the defendants in responding to this motion, I have concluded that the costs as sought by the plaintiff in the sum of $9,894.76 are fair, reasonable and proportionate and in an amount that the defendants should reasonably have expected to pay in the event they were unsuccessful in responding to the motion.

[14] The defendants, jointly and severally, shall pay to the plaintiff costs in that amount within 30 days from the date of release of these reasons.

Daley J. Released: March 3, 2022