Court File and Parties

COURT FILE NO.: CV-13-00479615 MOTION HEARD: 20220401 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Binu Maiya Shahi, Plaintiff AND: Greater Toronto Airport Authority, Servisair Inc. and Jet Airways (India) Ltd., Defendants

BEFORE: Associate Justice B. McAfee

COUNSEL: A. Pasalic, Counsel, for the Moving Party, the Defendant Servisair Inc. S. Chandra, Counsel, for the Responding Party, the Plaintiff A. Marchese, Counsel, for the Defendant Greater Toronto Airport Authority

HEARD: April 1, 2022

Reasons for Decision

[1] This is a motion brought by the defendant Servisair Inc. (Servisair) for various relief arising from the plaintiff’s outstanding undertakings and a mandatory mediation that was aborted due to the plaintiff’s failure to attend. The primary relief sought in the notice of motion, being a dismissal of the action, was not pursued.

[2] The motion was first returnable before me on June 1, 2021. At that time, the parties consented to an order that the plaintiff attend a further mandatory mediation with a certified interpreter and technological assistance, the plaintiff pay the respective mediator’s fees of Servisair and the Greater Toronto Airport Authority (GTAA), and the plaintiff answer three outstanding undertakings. On consent, the issue of costs thrown away of the aborted mandatory mediation and of this motion were adjourned.

[3] Servisair seeks costs of the aborted mandatory mediation on a substantial indemnity basis in the all-inclusive amount of $9,585.22 and costs of this motion on a substantial indemnity basis in the all-inclusive amount of $11,461.57, both payable within 30 days.

[4] Following Servisair’s submissions, counsel for GTAA submitted that GTAA was also seeking its costs thrown away of the aborted mandatory mediation. No motion was brought by GTAA in this regard. I was not referred to any notice to the plaintiff that such costs would be sought at the return of the motion. In any event, GTAA did not serve or bring any documentation to the hearing in support of any amount sought. I declined to consider GTAA’s request for costs thrown away in these circumstances.

[5] The plaintiff does not dispute that costs are payable to Servisair and submits that a more fair and reasonable amount is the total amount of $3,000.00 for both costs thrown away of the aborted mandatory mediation and costs of this motion. The plaintiff also submits that costs should be payable in the cause or in any event of the cause. The plaintiff did pay Servisair and GTAA’s respective mediator’s fees pursuant to the consent reached on the initial return date.

[6] For the reasons that follow, I fix costs thrown away of the aborted mandatory mediation in the all-inclusive amount of $1,000.00 payable by the plaintiff to Servisair in any event of the cause. I also fix costs of the motion in the further all-inclusive amount of $2,000.00 payable by the plaintiff to Servisair in any event of the cause.

[7] This action arises as a result of an incident that occurred at Toronto Pearson International Airport on March 17, 2013. The action was commenced by way of statement of claim issued on September 17, 2013. According to the amended amended statement of claim the plaintiff arrived from India and was a wheelchair passenger assisted by a wheelchair attendant. The plaintiff alleges that the wheelchair attendant took the wheelchair and left the plaintiff unattended at the conveyor belt to collect her own luggage. The plaintiff alleges that while she was attempting to pick up her luggage from the conveyor belt, someone pushed the plaintiff and causing the plaintiff to fall to the ground resulting in injury. The defendants deny liability.

[8] The plaintiff resides in India and is 86 years of age.

[9] The mandatory mediation was scheduled for February 22, 2021, to proceed by video conference, with the plaintiff participating from India. In advance of the mediation, plaintiff’s counsel agreed to Servisair’s request that the plaintiff have a qualified interpreter present with the plaintiff in India and that plaintiff’s counsel would make the arrangements for the video conference.

[10] On February 22, 2021, Servisair and GTAA, together with their clients, and plaintiff’s counsel attended the mandatory mediation. The plaintiff did not attend nor did an interpreter. Plaintiff’s counsel sought to proceed with the mandatory mediation with the plaintiff’s daughter and the plaintiff’s son-in-law, who is a lawyer in Toronto, both available by telephone. The defendants declined. After approximately one hour had passed, the mediation was cancelled due to the plaintiff’s failure to attend.

[11] The explanation for the plaintiff’s failure to attend is first provided in a responding affidavit of D. Ayllon, paralegal, sworn May 21, 2021. He states as follows at para. 7:

7. As the COVID situation in India had substantially deteriorated by February 2021, Ms. Shahi and her family decided that it would be unsafe for her to leave her home to travel to a computer place, and thus they attempted to join the mediation by way of a laptop computer in her home. Unfortunately, as they were unfamiliar with the technology, they were unable to establish a connection. I am advised by Ms. Chandra, however, that if the mediation is rescheduled, she will ensure that an I.T. professional is in place so that Ms. Shahi will be able to participate. (See also para. 5 of affidavit of D. Ayllon sworn March 23, 2022.)

[12] The mandatory mediation was rescheduled for August 26, 2021, and did take place on that date.

[13] In Thompson v. Freeman, [2008] O.J. No. 3186 (Ont. S.C.J.) at para. 40 Master Dash states as follows with respect to costs thrown away of an aborted mediation:

40 … In my view, if a mediation is aborted or otherwise fails because a party fails to attend, the party who failed to attend should in most circumstances be responsible for the costs thrown away of the compliant party. This would include not only the share of the mediator’s costs otherwise payable by the compliant party, but also the cost of counsel for the compliant party attending the mediation and any duplicated preparation costs if there is to be a further mediation.

[14] In Merrill Lynch Canada Inc. v. Vacation Properties Time Sharing Inc., 1999 CarswellOnt 1708 (Ont. S.C.J.) at para. 18, Master MacLeod, as he then was, ordered the party who failed to attend mandatory mediation to pay the mediator’s cancellation fee and to pay costs to the opposing party for preparation and attendance at the cancelled mediation.

[15] Over half of the amount sought relates to Servisair’s costs for preparation of the mediation brief. Only one mediation brief was prepared by Servisair. The costs of preparing the one mediation brief that was also used for the purposes of the mediation of August 26, 2021, are not costs thrown away. Some, but not all, preparation costs would be thrown away. The mediation proceeded approximately 6 months after the aborted mediation. The fees for attendance on the aborted mediation would be costs thrown away.

[16] With respect to the scale of costs thrown away, Servisair did not obtain a result as favourable or more favourable than their offer to settle the issue of costs dated November 23, 2021. Given the explanation provided for the failure to attend the initial mandatory mediation, I am also not satisfied of conduct that warrants substantial indemnity costs.

[17] I fix costs thrown away of the aborted mandatory mediation on a partial indemnity basis in the all-inclusive amount of $1,000.00.

[18] With respect to the scale of costs of the motion, as noted above, Servisair did not obtain a result as favourable or more favourable than their offer to settle. I am also not satisfied of conduct that warrants costs of the motion on a substantial indemnity basis.

[19] Approximately eighteen undertakings given on the plaintiff’s examination for discovery held on May 16, 2018, were outstanding at the time the motion was served. At the initial return date for the motion, three undertakings remained outstanding. Much of the relief on this motion was only resolved at the initial return date of the motion. In all of the circumstances of this motion, I fix costs of the motion in the all-inclusive amount of $2,000.00.

[20] With respect to the timing of payment of costs, I am not satisfied that the plaintiff is impecunious. The evidence of D. Ayllon is that the plaintiff has no income. The evidence is silent as to the plaintiff’s assets and ability to pay costs. I am, however, satisfied that it is more just to award costs payable in any event of the cause in all of the circumstances of this matter. The plaintiff provided an explanation for her failure to attend the aborted mandatory mediation and has since attended the rescheduled mandatory mediation. The plaintiff paid the mediator’s fees for the aborted mandatory mediation. The plaintiff consented to an order that the three outstanding undertakings be answered.

[21] Order to go as follows:

1. Costs thrown away of the aborted mandatory mediation are fixed on a partial indemnity basis in the all-inclusive amount of $1,000.00 payable by the plaintiff to Servisair in any event of the cause.
2. Costs of the motion are fixed on a partial indemnity basis in the all-inclusive amount of $2,000.00 payable by the plaintiff to Servisair in any event of the cause.

Associate Justice B. McAfee Date: April 19, 2022