Court File and Parties
COURT FILE NO.: CV-20-00646250
MOTION HEARD: 20220811, 20220922
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dr. Ricardo Solis, Dr. R. Solis Dentistry Professional Corporation and Dr. Ricardo Solis Dentistry Professional Corporation, Plaintiffs, Defendants by Counterclaim
AND:
Andy J. Cassolato a.k.a Adriano John Cassolato c.o.b. Cassolato Koza Law, Defendant, Plaintiff by Counterclaim
BEFORE: Associate Justice L. La Horey
COUNSEL: Spencer Jones, Counsel for the Moving Party Defendant
Matthew Wilton and Abbira Vijayakumaran (student-at-law), Counsel for the Responding Parties Plaintiffs
HEARD: August 11, 2022 (in person) and September 22, 2022 (by videoconference)
REASONS FOR DECISION
[1] The defendant brings this motion to strike out the statement of claim, or in the alternative portions thereof, or in the further alternative, for directions. The plaintiffs’ claim involves alleged negligence by a lawyer in relation to his representation of a dentist in a hearing before a panel of the Discipline Committee of the Royal College of Dental Surgeons (the “College”). Such discipline proceedings are governed by the Regulated Health Professions Act (“RHPA”).[^1] This motion concerns the impact of s. 36(3) of the RHPA on this litigation. Section 36(3) provides:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[2] For the reason that follow, this motion is dismissed.
BACKGROUND AND CHRONOLOGY
[3] The action is brought by Dr. Ricardo Solis, a dentist, and his two professional corporations. The claim alleges that the defendant Andy J. Cassolato, a lawyer, was negligent in his representation of Dr. Solis in a discipline proceeding before the College. The regulatory proceeding was commenced by Notice of Hearing dated November 18, 2015 under the RHPA. The panel of the College Discipline Committee released its decision on January 24, 2019, finding that Dr. Solis had engaged in professional misconduct. On June 12, 2019, the panel released its decision on penalty and costs.
[4] The plaintiffs commenced their claim by statement of claim issued on August 26, 2020, which was served on September 14, 2020. In the statement of claim, the plaintiffs make a number of allegations against the lawyer including that: he failed to advise that Dr. Solis was unlikely to be able to successfully defend the proceeding; he failed to explain the risks and consequences of losing; he advised against accepting the prosecution’s offer of settlement; and, he failed to recommend the retention of an expert dentist to provide an opinion. The plaintiffs claim in breach of contact and negligence. They seek damages for loss of income (including in respect of the eight months difference between the four month suspension from the dental practice that the prosecution had offered and the twelve month suspension that Dr. Solis received), loss of income for time preparing for and attending the hearing, $200,000 representing the costs awarded by the panel and reimbursement of excessive legal fees.
[5] The defendant delivered a statement of defence and counterclaim on October 30, 2020, after receiving the plaintiffs’ response to his demand for particulars. The counterclaim is for unpaid legal fees.
[6] The plaintiffs delivered a reply and defence to counterclaim on November 27, 2020.
[7] On September 1, 2021, plaintiffs’ counsel delivered a discovery plan, affidavits of documents[^2] and Schedule A productions. The discovery plan contained a statement that in accordance with s. 36(3) of the RHPA the parties confirm and agree that “no document, record or thing prepared for or statement given at or relating to the discipline proceeding before the Royal College of Dental Surgeons against Dr. Solis will be produced, although disclosure of same shall be made in Schedule “B” of the parties’ Affidavit of Documents”. The affidavit of documents listed documents from the RHPA proceedings in Schedule B. Schedule B also included correspondence between Dr. Solis and Mr. Cassolato.
[8] After correspondence back and forth between counsel, defence counsel advised on October 19, 2021, that the “current pleadings” contravene s. 36(3) of the RHPA and that he had instructions to move to strike out the statement of claim, in whole or in part, or in the alternative for directions regarding the discovery plan. A case conference in this matter scheduling the defendant’s motion took place on November 30, 2021. The defendant served this motion on December 22, 2021.
[9] The plaintiffs’ lawyers told defence counsel on November 29, 2021, the day prior to the case conference scheduling this motion, that the plaintiffs were prepared to revise their affidavits of documents and move the Schedule B documents, including documents between Dr. Solis and the lawyer as well as the RHPA documents, into Schedule A. Revised affidavits of documents were subsequently served. The plaintiffs served further revised affidavits of documents on May 27, 2022, moving the RHPA documents back into Schedule B and removing RHPA documents that were attached to correspondence between the parties listed in Schedule A. The cover letter said that this was done in accordance with a case referred to in the defendant’s factum.
POSITION OF THE PARTIES
[10] The defendant moves to strike out the statement of claim, in whole or in part, under Rule 25.11 of the Rules of Civil Procedure on the basis that as a result of the absolute prohibition on the admissibility of documents from the discipline hearing in civil proceedings, the plaintiffs plead facts and documents that are incapable of proof. Therefore, he submits that the claim is frivolous, vexatious and an abuse of process. In the alternative, he seeks directions with respect to a discovery plan and the scope of documentary production. The defendant does not agree with the plaintiffs that leave to bring this motion under Rule 2.02 of the Rules is required. Alternatively, he submits that leave should be granted, if required.
[11] The plaintiffs contend that the defendant requires leave to bring this motion under Rule 2.02 as he has delayed in bringing the motion and taken a further step and that leave should be refused. The plaintiffs submit that the statement of defence and counterclaim contain multiple admissions of fact concerning what happened at the regulatory proceeding, in direct response to the allegations they now seek to have struck out. With these admissions and other evidence, they say that they can prove their case without the inadmissible documents. There is thus no basis to strike out the action as an abuse of process.
ANALYSIS
Issue 1 – Does the defendant require leave to bring this motion, and if so, should leave be granted
[12] Rule 2.02 of the Rules provides:
Attacking Irregularity
2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,
(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or
(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.
Has the defendant delayed?
[13] The defendant submits that the issues on the motion “crystallized” in September 2021, when the plaintiffs claimed privilege over the RHPA documents by listing them in Schedule B to their affidavits of documents. As the defendant brought this motion within a few months thereafter, he says he has not delayed.
[14] I do not accept this submission. In my view, the defendant ought reasonably to have known of the alleged irregularities at the time that the statement of claim was served, on September 14, 2020 or shortly thereafter.
[15] The statement of claim refers to three RHPA documents: the notice of hearing, the reasons for decision and the decision and reasons for decision on penalty and costs. The defendant’s motion is based on the impact of s. 36(3) of the RHPA on the action. It is obvious on the face of the statement of claim that s. 36(3) of the RHPA is engaged as the plaintiffs refer to RHPA documents in their statement of claim. The defendant ought to have been aware of the impact of s. 36(3) when he was served with the statement of claim, although he may not have turned his mind to its implications until September 2021 when he received the plaintiffs’ discovery plan which specifically referred to s. 36(3).
[16] The period of time between service of the statement of claim and the date this motion was served is about 15 months. Even if I take as an end point the date the defendant’s lawyer said he had instructions to bring this motion, October 19, 2021, there is still a delay of about 13 months.
[17] In my view, this delay is not a “reasonable time”. In Mackenzie v Wood Gundy Inc., Justice Montgomery found a delay of five to six months in launching motion to strike a pleading was too long, stating:[^3]
The time is long past when this type of delay can be tolerated in the course of the pleading stage of an action. We are into the era of judicial supervision of the conduct of a lawsuit, and it is imperative that cases be moved on through the preliminary stages and get to trial as expeditiously as possible.
[18] I find that the defendant’s attack on the statement of claim was made after the expiry of a reasonable time after he ought reasonably to have known of the alleged irregularity. Further, he has not provided a satisfactory reason for his delay. To the extent that the defendant’s argument that the motion did not crystallize until September 2021 can be said to be an explanation for the delay, I do not find this to be a satisfactory explanation, for the reasons set out above.
Has the defendant taken a fresh step?
[19] The plaintiffs submit that the defendant took a fresh step by delivering a statement of defence and counterclaim. Not only does the defendant admit a number of paragraphs in the statement of claim which refer to RHPA documents, in the body of his defence he refers to the notice of hearing (including the allegations of misconduct contained in it), the reasons for decision (including its content), and the reasons for decision on penalty and costs (including its content). The statement of defence and counterclaim also pleads other facts related to the discipline hearing including terms of the offer to settle presented by the College’s lawyers and evidence led at the hearing.
[20] Significantly, the defendant does not plead that the plaintiffs’ claim is an abuse of process as he now asserts, nor does he plead or refer to s. 36(3) of the RHPA as a bar to part or all of the plaintiffs’ claim.
[21] In CNL Stamping & Tooling Inc v Lorwood Holdings Incorporated[^4] Master Muir held that:
A further step as contemplated by Rule 2.02 must amount to a waiver of an irregularity so as to disentitle a party from attacking a pleading. It must be determined whether the moving party has impliedly or expressly forgiven the defect or irregularity by taking a further step in the proceeding. See Lynch v. Westario Power Inc., [2009] O.J. No. 2927 (SCJ) at paragraph 11.
[22] The defendant argues that when the statement of defence and counterclaim was delivered, the issue that forms the basis of the motion was not reasonably anticipated and therefore leave is not required or if required, leave should be given. This is another version of the defendant’s argument that the issue did not crystallize until the plaintiffs delivered their discovery plan and affidavits of documents. It is obvious on the face of the statement of claim that s. 36(3) of the RHPA is engaged as the plaintiffs refer to RHPA documents in their statement of claim. The basis for the motion ought to have been apparent to the defendant when he received the statement of claim.
[23] In my view, by filing the statement of defence and counterclaim that he did, with the admissions and pleadings that it contained and without any “reservation of rights” as discussed below, the defendant has waived any irregularity.
Should leave be granted?
[24] As I have concluded that leave is required, I will go on to consider whether leave should be granted.
[25] The defendant refers to Wallbridge v Brunning[^5] for the proposition that:
As a general proposition, leave should be granted when it is in the interests of justice to do so. It will be in the interests of justice when the motion may assist in securing a just, expeditious, and efficient determination of the action on its merits.
[26] In Wallbridge, the court denied leave to the plaintiffs to bring a motion to strike out paragraphs of the amended statement of defence. The court found that the plaintiffs ought to have known of the alleged irregularities when the statement of defence was served. The court held that a delay of eight months in bringing the motion was unreasonable and there was no explanation for the delay. In the case at bar, the defendant delayed for at least 13 months and has no reasonable explanation for the delay as I have rejected his argument that the issue did not crystallize until September 2021.
[27] It is not a just and expeditious determination of an action on its merits if actions are stalled at the pleadings stage for long periods of time.
[28] The defendant relies on Wakeling v Desjardins General Insurance Group Inc.[^6] as a case where the filing of a statement of defence was not fatal to a motion to strike out a statement of claim. However, Wakeling is distinguishable. One defendant in Wakeling was forced to file a defence in order to avoid being noted in default and the statement of defence contained a paragraph stating that she was filing the defence to avoid being noted in default and intended to bring a motion to strike out the claim. Another defendant filed a statement of defence with a stipulation that it was filing the defence in order to have a noting in default set aside and that it was filing the defence without prejudice to its bring a motion to strike. In Wakeling, the motions judge found that leave was not required, but that if it was, leave should be granted. As noted above, the statement of defence and counterclaim in this case does not indicate that the defendant intends to bring a motion to strike out the statement of claim. To the contrary, the defendant refers to RHPA documents and their contents and pleads facts related to the discipline hearing.
[29] I am not persuaded that it is in the interests of justice that the defendant be granted leave to bring his motion to strike out portions or all of the statement of claim. Leave to bring this motion is denied.
Issue 2 – Should the statement of claim be struck out in whole or in part
[30] In the event that I am wrong, and leave is not required or ought to be granted, I will briefly consider whether all or portions of the statement of claim should be struck out.[^7]
[31] Rule 25.11 of the Rules provides:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexations; or
(c) is an abuse of the process of the court.
[32] The defendant submits that the plaintiffs plead facts and documents incapable of proof. The defendant says that the plaintiffs will not be able to rely on the facts, nor the documentation that supports them, concerning the College’s complaints, and hence the defendant’s advice concerning those complaints, because of the prohibition in s. 36(3) of the RHPA. Once the offending portions of the statement of claim are removed, the plaintiffs do not have a claim that they can prove and that the defendant can fairly defend.
[33] The plaintiffs submit that even with the prohibition in s. 36(3) they may still be able to prove their claim at trial. They will be able to rely on the admissions and pleadings in the statement of defence and counterclaim concerning the discipline hearing as well as other evidence that is not prohibited by the RHPA.
[34] The Court of Appeal has had occasion to consider s. 36(3) in a number of cases, including in the recent decision of K.K. v M.M. where the court held:[^8]
47 On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.
48 That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.
[emphasis added]
[35] Therefore, while the RHPA documents are inadmissible, the plaintiffs will be able to lead evidence that is not specifically mentioned in s. 36(3).
[36] In some contexts, the prohibitions in s. 36(3) may mean that the plaintiff will not be able to prove his or her claim. The Court of Appeal held in Frank v Legate that the “practical result” of s. 36(3) “is that actions for malicious prosecution based on complaints to the College [of Physicians and Surgeons] are effectively barred.”[^9]
[37] The issue in this case is whether the absolute prohibition in s. 36(3) is such that parts or all of the statement of claim should be struck out, bearing in mind that pleadings should only be struck out pursuant to Rule 25.11 in the “clearest of cases”.[^10]
[38] In his statement of defence, the defendant admits paragraphs 4, 8, 11, 14 and 15 of the plaintiffs’ statement of claim. These paragraphs refer to, inter alia, the notice of hearing, the allegations against Dr. Solis, the prosecution’s offer to settle, Dr. Solis’ position on the charges, information about the hearing, the finding of the panel that Dr. Solis engaged in professional misconduct and the outcome of the penalty and cost hearing. Therefore, the plaintiffs will not need to lead evidence in the form of prohibited RHPA documents to establish the facts in these paragraphs. It is noteworthy that the defendant has specifically moved to strike out paragraphs 4 (second and third sentence), 8, 11, 14 and 15, notwithstanding that he has admitted these paragraphs.
[39] In addition, the defendant pleads further facts about the RHPA discipline process in his statement of defence and counterclaim upon which the plaintiffs may rely in proving their case. In particular, in paragraph 6, the defendant pleads that he was retained by Dr. Solis in connection with allegations against him which fell into three broad categories: (a) failing to maintain proper and adequate dental records; (b) improper/ fraudulent billing activity; and (c), the taking of unnecessary or improper x-ray images contrary to guidelines.
[40] The defendant relies on the 2008 decision of Master Pope in Meuwissen v Perkin[^11] where she said that references to the contents of a complaints were inadmissible and in violation of s. 36(3) and struck out portions of a statement of claim that referenced the contents of complaints to the College of Physicians and Surgeons. The plaintiffs contend that this decision has been overtaken by the later Court of Appeal authorities including Pouget and K.K. Whether or not this is the case, the defendant has generally described the allegations in paragraph 6 of his defence.
[41] In the 2012 decision in Pouget v Saint Elizabeth Health Care,[^12] the Court of Appeal determined that a party in a civil proceeding is entitled to rely on records and other documents that were created before a college complaint was initiated, even if those records were subsequently used in the discipline proceeding.
[42] The defendant does not dispute that the plaintiffs will be entitled to enter into evidence the patient dental and business records even though they were later introduced into evidence in the discipline proceeding.
[43] In their statement of claim, the plaintiffs plead that the defendant was negligent in a number of ways, including failing to advise Dr. Solis that, given the absence of corroborating patient records, it was unlikely that Dr. Solis could successfully defend the allegations of misconduct. Further, they allege that the defendant was negligent in failing to advise Dr. Solis that it was advisable to retain an expert dentist, familiar with standards of practice cases, to provide an expert opinion as to whether there was any likelihood of success in contesting the alleged acts of misconduct.
[44] Mr. Wilton submits that with the clinical and business records, expert evidence and viva voce testimony for Dr. Solis and others, the plaintiffs may be able to prove their case in negligence, without recourse to any documents precluded by s. 36(3) of the RHPA. Specifically, the plaintiffs will be able to retain an expert dentist to review the patient dental records and the billing records which the defendant agrees are admissible. If that expert dentist opines that, based on a review of these records, there was no reasonable likelihood of that Dr. Solis would be successful in his defence to the allegations made by the College, e.g. improper billing, and the plaintiffs can satisfy a court that it was negligent for a lawyer not to recommend that an expert opinion be procured, and that the defendant did not make that recommendation, etc., then the plaintiffs may be able to prove negligence without infringing s. 36(3) of the RHPA.
[45] The defendant, in his statement of defence, pleads that the Discipline Committee, in finding that Dr. Solis had committed professional misconduct, based its decision on the documents presented, i.e. dental practice records. This further buttresses the plaintiffs’ argument that the plaintiffs may be able to prove their case even with the restrictions in s. 36(3) as the dental records are admissible in this action.
[46] The plaintiffs also claim that the defendant was, inter alia, negligent in his advice with respect to the prosecution’s offer to settle the charges. Paragraph 16 of the statement of defence and counterclaim pleads the terms of the College’s settlement offer. Accordingly, the plaintiffs may be able to prove their allegation of negligent advice without having to tender documents prohibited by s. 36(3).
[47] Mr. Wilton also submitted that the plaintiffs will be able to lead viva voce evidence (in particular, from Dr. Solis) and will be able to tender documents other than documents referred to in s. 36(3), such as the solicitor/ client correspondence, to prove elements of the plaintiffs’ case.
[48] Neither counsel pointed me to any case that considered whether it is possible to call oral evidence or other documents referring to the contents of inadmissible RHPA documents, other than possibly Meuwissen which predates Pouget. It is possible that a future court may determine that there are limits on the admissibility of such evidence based on the purpose of s. 36(3).
[49] In F.(M.) v Sutherland, Justice Laskin explained the purpose of s. 36(3) of the RHPA as follows:[^13]
The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings - a health professional, a patient, a complainant, a witness or a College employee - fearing that a document prepared for College proceedings can be used in a civil action.
[50] There may be evidentiary disputes over the admissibility of viva voce testimony or documents that refer to the contents of RHPA documents, particularly in situations where the evidence, if admitted, would undermine the purposes of the RHPA. The plaintiffs submit that any such evidentiary issues can be dealt with by the trial judge, relying upon the following passage in Pouget.[^14]
35 The exclusion from evidence of the complaint will clearly pose a practical problem for Pouget’s bad faith claim. She will have to prove bad faith without being able to refer to the contents of the complaint itself except to the extent that the substance of the complaint can be inferred from the background documents. That, however, is a practical problem of proof and not a legal barrier that would justify dismissing the action at the pleading stage.
[51] In response, the defendant relies on the earlier Sutherland case, where the Court of Appeal held:[^15]
40 Dr. Sutherland contends that regardless of how s. 36(3) is interpreted the admissibility of documents is a matter for the trial judge and therefore the challenged parts of his pleading should not have been struck out on a motion. I disagree. If a paragraph in a party’s pleading pleads facts that cannot be proved at trial or pleads documents that cannot be admitted at trial, that paragraph may be struck out on a motion. As Aylseworth J.A. said speaking for this court in Roman Corp. Ltd. v. Hudson’s Bay Oil & Gas Co., 1971 44 (ON CA), [1972] 1 O.R. 444 at 446, aff’d 1973 15 (SCC), [1973] S.C.R. 820:
Nor do the appellants question the Court’s power, in a proper case, to dismiss an action against certain defendants if it is one which, as to such defendants, cannot possibly succeed - or to strike out all or parts of a statement of claim with respect to such defendants as prejudicing or embarrassing a fair trial or as alleging facts which a plaintiff would not be allowed to prove at trial.
[emphasis added]
[52] I note that the Court of Appeal in Sutherland specifically said that the court “may” strike out the pleading. Further, in the case at bar, I am not able to say that the plaintiffs cannot possibly succeed, in view of statement of defence and counterclaim filed in this case and other evidence that the plaintiffs will be able to lead, including the patient dental records and clinic business records.
[53] In the oft-cited case, Quizno’s Canada Restaurant Corp. v Kileel Developments Ltd,, the Court of Appeal held that:[^16]
[16] Pleadings are not the appropriate stage in an action to engage at large in what is essentially a trial judge’s exercise for determining the admissibility of evidence at trial -- i.e., weighing the probative value versus prejudice of facts. That exercise is not particularly well-suited to defining issues for trial, something which is for the parties to decide. Rule 25.11 provides that the pleading may be struck if it “may prejudice the fair trial of the action”. A fair trial requires that the defendant be able to put forward a “full” defence, not -- as the motion judge erroneously concluded -- a “reasonable” defence defined in advance by the plaintiff and the court.
[emphasis added]
[54] It is clear by the use of the word “may” in Rule 25.11 and in the passages from the Court of Appeal quoted above, that the court has a discretion to strike the pleading. Although there may be some evidentiary challenges in this litigation, and the plaintiffs may have difficulty in proving their claims given s. 36(3) of the RHPA, this is not one of the “clearest of cases”. If I had granted leave to the defendant to bring this motion, I would not have exercised my discretion to strike out the statement of claim or parts thereof.
Issue 3 – Should directions be given?
[55] In their notice of motion dated December 22, 2021, the defendant seeks by way of alternative or additional relief, “an Order providing directions in respect of a discovery plan and more particularly the scope of documentary production.” In his factum dated April 1, 2022, the defendant submits that if the action is to proceed, direction from the court is required as to what type of documentation and correspondence from the College proceeding can be relied upon. He submits that specific direction is required as to how s. 36(3) of the RHPA applies and whether the documents can be questioned on and marked as exhibits on examinations for discovery. In neither document does the defendant indicate what directions he believes ought to be given and on what basis.
[56] The plaintiffs, in their responding factum, say that the defendant has not made any meaningful effort to explain his position on the documentary issues. The plaintiffs submit that instead, the defendant “expects the Court to do the work that the parties are required to perform pursuant to Rule 29.1.”
[57] It is only in the reply factum that the defendant poses a list of questions for the court, but does not say how they should be answered and provide a rationale for his position.
[58] I agree with the plaintiffs that the defendant is asking the court to do the work that should be done by the parties pursuant to Rule 29.1. and does so without even providing a reasoned position on each question. The defendant’s approach is contrary to the collaborative process required by Rule 29.1.[^17] His request for the court’s assistance is premature.
DISPOSITION AND COSTS
[59] The defendant’s motion is dismissed.
[60] The parties filed cost outlines and made submissions at the hearing. Both parties agreed that costs should be payable to the successful party on a partial indemnity basis. As the plaintiffs were entirely successful, there is no reason to depart from the usual rule that the successful party is entitled to partial indemnity costs payable within 30 days.
[61] The plaintiffs seek partial indemnity costs of $26,218.31 (all-inclusive). Mr. Wilton, who was called to the Bar in 1986 in Manitoba and Ontario in 1989, did most of the work for the plaintiffs. I accept that it was appropriate for someone of Mr. Wilton’s seniority to perform most of the work, given the importance of the issues on the motion and the complexity of the legal issues. Moreover Mr. Wilton’s partial indemnity rate claimed is $325.00, only 43% of his actual rate of $750.00. Each side spent roughly the same amount of time on the motion. Plaintiffs’ counsel spent 83 hours on the motion and the defendant spent 95.6 hours on the motion. As noted, the legal issues on the motion were complex and both parties delivered two factums. The defendant’s bill of costs is lower, at $16,992.36 (all-inclusive), but that is largely because most of the work done on behalf of the defendant was by Mr. Spencer, a 2019 call, at LawPro rates. At the hearing, the defendant did not object to the time spent or the partial indemnity rates in the plaintiffs’ bill of costs.
[62] Having considered the circumstances of this case and applying them to the factors set out in Rule 57, I am satisfied that it is fair and reasonable and within the reasonable expectations of the parties for the defendant to pay costs of the motion to the plaintiffs on a partial indemnity scale fixed in the amount of $26,218.31 (all-inclusive) within 30 days of the release of this decision.
[63] In closing, I wish to thank counsel for the excellence of their written and oral submissions.
L. La Horey, A.J.
Date: November 3, 2022
[^1]: S.O. 1991, c. 18 [^2]: The plaintiffs served a separate affidavit for each plaintiff. [^3]: Mackenzie v Wood Gundy Inc., [1989] O.J. No. 746 (H.C.J.) at para 2. In Wallbridge v Brunning, 2019 ONSC 556, a delay of eight months was found to be too long. [^4]: CNL Stamping & Tooling Inc v Lorwood Holdings Incorporated, 2015 ONSC 492 (Master) at para 4 [^5]: 2019 ONSC 556 at para 27 [^6]: 2020 ONSC 6809, aff’d 2021 ONCA 672, leave to appeal to SCC refused, [2021] S.C.C.A. No. 412 [^7]: In the alternative to an order striking out the entire statement of claim, the defendant seeks an order striking out the highlighted portions of the statement of claim attached as Schedule A to his notice of motion, specifically, paragraphs 4 (second and third sentence), 5 (second sentence), 7- 9, 11, 13-15, 21(i), (iii) – (viii), (x), (xii) – (xiv), 24 (i) (portion in brackets), (ii), (iii), (v). [^8]: 2022 ONCA 72 at paras 47 - 48 [^9]: 2015 ONCA 631 [^10]: Stronach v. Stronach, 2021 ONSC 3801 at para 93 [^11]: 2008 67902 (Ont Master) at para 46 [^12]: 2012 ONCA 461 [^13]: 2000 5761 at para 29, (2000), 188 D.L.R. (4th) 296 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531 [^14]: 2012 ONCA 461 at para 35 [^15]: 2000 5761, (2000), 188 D.L.R. (4th) 296 (Ont. C.A.) at para 40, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531 [^16]: 2008 ONCA 644 at para 16. In this case, the Court was considering whether parts of a statement of defence should be struck out. [^17]: See Maxi Boutique Inc. v TD General Insurance Co., 2018 ONSC 5039 (Master) and the cases cited therein.