Court File and Parties
COURT FILE NO.: CV-19-00631498-0000 DATE: 2022-11-25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK MUNDELL and 1441220 ONTARIO LTD. Plaintiffs
- and –
CHAKKA WHITE aka CHAKKA C.N. WHITE aka CHAKKA WHITE BARRISTER AND SOLICITOR aka CHAKKA N. WHITE PN aka CN WHITE LAW CHAMBERS Defendants
Counsel: Frederick Simon Hawa for the Plaintiffs Michael Kestenberg for the Defendant
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] As I noted in my Reasons for Decision for the summary judgment motion,[^1] the immediate case is one in which the court is obliged to enforce the Limitations Act, 2002.[^2] The Defendant Chakka White and her professional liability insurer brought a successful motion to have a negligence action against her dismissed as statute barred. As I explained, by the time Mr. Mundell issued his Notice of Action in the autumn of 2019, the limitation period to sue Ms. White had run its course, and his action against her came too late. I concluded my decision by inviting the parties to make costs submissions if they could not agree. I also indicated that notwithstanding Ms. White’s success, I shall have to be persuaded to order costs against the Plaintiffs.
[2] The court’s discretion in awarding costs arises under the authority of s. 131(1) of the Courts of Justice Act[^3] and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure. These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.
[3] The traditional discretionary principles developed for costs awards are codified in rules 57.01(1) (2), and (4) which state:
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.
Authority of Court
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;
(c) to award all or part of the costs on a substantial indemnity basis;
(d) to award costs in an amount that represents full indemnity; or
(e) to award costs to a party acting in person.
[4] The parties were unable to agree to Ms. White’s request for reduced partial indemnity costs of the Action and the Motion for Summary Judgment in the amount of $15,000 inclusive of fees, taxes and disbursements.
[5] Ms. White’s costs submissions are brief, so I shall set them out in full, as follows:
Despite the Court’s direction to attempt to resolve the issue of costs, the Plaintiffs have not responded to correspondence from the Defendants seeking to do so. Accordingly, White provides these cost submissions in support of her request for costs of the Action and the Motion.
White’s Cost Outline is attached hereto at TAB A. The request for $15,000 is a substantial reduction from even White’s partial indemnity costs of the Action.
It is black letter law that costs of a proceeding are in the discretion of the Court. While the Court has indicated that it is not inclined to order costs given White’s conduct there are two factors that weigh in favour of a reduced award of costs against the Plaintiffs.
Firstly, while White’s conduct was certainly reprehensible, that conduct is most likely explained by White’s unfortunate onset of mental illness which ameliorates against her neglect of the Plaintiffs’ action.
Secondly, as set out in the three letters attached hereto at TAB B, Counsel for White, retained by LawPRO to defend this action, immediately determined that this action was statute-barred and implored the Plaintiffs to agree to a without costs dismissal for that reason.
White’s Counsel went as far as to send Plaintiffs’ Counsel a brief of the law on discoverability and ss.4 and 5 of the Limitations Act in an effort to demonstrate that the action was certainly statute barred and to obtain a without costs dismissal.
Unfortunately, the Plaintiffs were simply not prepared to accept the Defendant’s position necessitating this motion. Given the Plaintiffs’ multiple opportunities to exit this action on a without costs basis, the Defendant should be entitled to a modest cost award, in the amount of $15,000 for having to bring the summary judgment motion.
[6] Mr. Mundell’s argument against an award of costs was that it was reasonable for him to have his day in court given Ms. White’s undoubted negligent and unprofessional conduct. He says that notwithstanding the outcome he had a strong case in fact and law that he had not discovered the claim against Ms. White and that his action was timely. He felt that he had been misled by Ms. White and not assisted by the Law Society in advancing a claim against Ms. White. And he also submits that he was compelled to waste an enormous amount of time and money in attempts to serve Ms. White, who was avoiding or unavailable for service, and he was frustrated by her insurer’s unwillingness to accept service on her behalf.
[7] Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.
[8] In the immediate case, I see none of these purposes being satisfied by Ms. White’s request for a nominal award of costs, which request seems to me to be no more than an unintended insult to add to the injuries suffered by Mr. Mundell. I alerted Ms. White that I have the jurisdiction to not award her costs notwithstanding her success and that I had to be persuaded to do make an award of costs. I am not persuaded that it would be appropriate in the immediate case to award costs.
Perell, J.
Released: November 25, 2022
COURT FILE NO.: CV-19-00631498-0000 DATE: 20221125
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK MUNDELL and 1441220 ONTARIO LTD. Plaintiffs
- and –
CHAKKA WHITE aka CHAKKA C.N. WHITE aka CHAKKA WHITE BARRISTER AND SOLICITOR aka CHAKKA N. WHITE PN aka CN WHITE LAW CHAMBERS Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: November 25, 2022
[^1]: Mundell v. White, 2022 ONSC 5994. [^2]: S.O. 2002, c. 24 c 24 Sched B. [^3]: R.S.O. 1990, c. C.43.