Court File and Parties

Court File No.: CV-21-349 Date: 2023-03-14 Superior Court of Justice - Ontario

Re: Kenneth Charles Power, Plaintiff -AND- Mac’s Convenience Stores Inc. and On-Site Maintenance & Repairs Inc., Defendants

Before: The Honourable Justice M. Bordin

Counsel: Daniel J. Fife, Counsel for the Plaintiff Aidan Fishman, Counsel for the Defendant Mac’s Convenience Stores Inc. Jason M. Kerr, Counsel for the Defendant On-Site Maintenance & Repairs Inc.

Heard: March 9, 2023

Endorsement

Overview

[1] This action arises out of a slip and fall which occurred at a gas station convenience store. The plaintiff pleads that he “exited through the main door when suddenly and without warning, the plaintiff slipped on ice immediately outside the front door and fell hard to the ground”.

[2] The defendant, On-Site Maintenance & Repairs Inc. (“On-Site”) is a winter maintenance contractor. On-Site has brought a motion for an order dismissing this action as against On-Site based on formal and deemed admissions of the other parties.

[3] By the time this matter came before the court for hearing, the only issue was whether On-Site was entitled to costs of the action, who was entitled to costs of the motion, and the quantum of costs.

[4] The defendant Mac’s Convenience Stores Inc. (“Mac’s”) appeared but took no position on the motion other than to confirm that it does not admit liability but admits jurisdiction for the area where the slip and fall occurred.

[5] On-Site filed an affidavit from counsel at Travelers Canada (not counsel who argued the motion) sworn April 13, 2022. The plaintiff filed an affidavit from counsel for the plaintiff handling the file (not counsel who argued the motion) sworn July 21, 2022. Mac’s did not file any materials on the motion.

Issues and position of the parties

[6] At the conclusion of the motion, the parties agreed that the action against On-Site should be dismissed. The only issue is costs of the action against On-Site and the motion.

[7] On-Site argues that it was a simple matter to determine who had responsibility for the area where the slip and fall occurred which could have been accomplished in the two years prior to issuing the claim. On-Site submits it is entitled to costs of the action and the motion because it made efforts to determine whether it was exposed to liability from the outset, was persistent in its efforts, the plaintiff failed to act reasonably in response to information available to him and to settlement offers, and the motion was required to bring the action against On-Site to a conclusion.

[8] The plaintiff argues that no costs should be awarded to On-site for the following reasons:

a. The plaintiff did what is common among the plaintiff bar – the plaintiff sued parties who might be responsible and could not let On-Site out of the action until it was certain that Mac’s and not On-Site had jurisdiction over the area of the slip and fall;

b. It was not until the statement of defence was received from Mac’s Convenience that the plaintiff became aware that On-Site was not responsible for the location where the plaintiff’s slip and fall occurred;

c. The plaintiff’s conduct was reasonable in the circumstances but On-Site’s conduct was unreasonable, particularly in bringing the motion and in not extending an offer to go out of the action without costs.

[9] The plaintiff asserts that On-Site is not entitled to any costs of the action and should pay his costs of the motion on a partial indemnity basis.

Facts

[10] The affidavits filed disclose the following facts:

a. The slip and fall occurred on March 4, 2019.

b. The statement of claim was issued on March 8, 2021.

c. On-Site operated under a waiver of defence.

d. On March 25, 2021, counsel for On-Site first wrote to plaintiff counsel to inquire about the location of the slip and fall and advised that On-Site said it was not responsible for maintaining the elevated concrete area immediately outside the door of the convenience store.

e. Plaintiff counsel did not respond and so on April 1, 2021, counsel for On-Site followed up and provided plaintiff counsel and counsel for Mac’s with documents relating to the scope of the snow removal contract. Counsel for On-Site repeated his request that the plaintiff confirm the location of the slip and fall. On-Site also provided a copy of a winter maintenance contract and asserted that the maintenance records indicate “city sidewalks only”.

f. Not having received a response, counsel for On-Site followed up again with plaintiff counsel on April 23, 2021.

g. On April 27, 2021, plaintiff counsel indicated he wanted to review the CCTV footage.

h. On May 4, 2021, plaintiff counsel advised that “My client is certain that it was on the sidewalk area (immediately outside the door) on which he slipped and did not slip on the asphalt portion beyond the curb.” Plaintiff counsel also communicated that the store manager had reviewed the video and could see that the plaintiff had fallen right outside the door. Counsel for On-Site then requested this be set out in a formal admission.

i. On September 8, 2021, Mac’s counsel wrote to counsel for the plaintiff and copied counsel for On-Site and advised: “I have instructions to confirm that the walkway immediately in front of the Mac’s store is the responsibility of Mac’s. To be clear, Mac’s is not admitting liability.”

j. On September 23, 2021, On-Site requested from the plaintiff a photograph with the location where the plaintiff fell marked so that On-Site could use it for a Request to Admit. In response, plaintiff counsel proposed that On-Site question his client under oath on the question of the loss location.

k. On December 10, 2021, counsel for On-Site again wrote to plaintiff counsel asking for a marked photograph of the loss location, raised the issue of costs, and wrote that if the plaintiff was insistent on proceeding through the discovery process, he should not expect On-Site to agree to a without-costs dismissal in due course.

l. Having received no response, counsel for On-Site followed up again on February 1, 2022. Plaintiff counsel replied within two hours asking the defendants to take a photograph of the sidewalk and entrance and his client would confirm the location. He advised that his client’s evidence would be that he fell on the sidewalk right outside the main entrance. On-Site’s counsel responded that same day asking the plaintiff to use a photograph from Google street view and to provide it by the end of day on February 11, 2022 failing which On-Site would file a defence and proceed in the traditional way.

m. Plaintiff counsel responded that same day and stated in part:

i. Your client is a multi-million dollar company with likely an infinite amount of capital in reserve and regularly has victims followed by investigators and/or sends out adjusters to handle claims of nominal value so it is not like your client would be doing anything out of the ordinary by sending someone out there to take pictures or whatever. I’m certainly not going to have my injured and income deprived client run around doing work for the insurers.

ii. The picture you provided back in March is attached below and my client has confirmed that the arrow points to the location of the fall. This is obviously not a 3D picture, it is from a distance and is only one angle but my client confirms that this is the location of the fall as noted.

n. The arrow in the photograph referenced by plaintiff counsel in the preceding paragraph points to the raised sidewalk.

o. On February 6, 2022, On-Site served a Request to Admit with respect to the aforementioned photograph seeking an admission that the slip and fall occurred on the raised concrete walkway immediately outside of the door to the building.

p. Plaintiff counsel did not respond to the Request to Admit but sent photos of the site of the slip and fall.

q. Counsel for On-Site followed up with respect to the Request to Admit on February 9 and 28, 2022.

r. On February 28, 2022, plaintiff counsel responded in part as follows:

i. [I]f this matter goes to trial and my client contests these facts [as set out in the Request to Admit] then your client can seek costs for the additional 10-20 minutes of trial time it took to confirm such facts one way or another.

ii. Your client can bring a summary judgment motion if it feels so strongly about not being part of the action… My client is not obligated to respond to the Request to Admit and your client can take whatever position it wants based on same.

iii. There is no reason to delay scheduling examinations and I am going to have my office forthwith canvass dates …

s. On March 1, 2022, plaintiff counsel wrote that it serves no purpose to delay examinations and suggested his office could serve a draft affidavit of documents.

t. On March 7, 2022, On-Site served a Request to Admit on Mac’s which mirrored that of the earlier Request to Admit served on the plaintiff but also sought to have Mac’s admit that Mac’s was an occupier of the location, with jurisdiction over the location of the alleged loss, including the raised concrete walkway, and that On-Site was not responsible for maintaining the raised concrete walkway.

u. On March 22, 2022, Mac’s served its Response to Request to Admit and admitted that as of the date of the loss it was the occupier of and had jurisdiction over the raised concrete walkway.

v. On March 25, 2022, counsel for On-Site wrote to plaintiff counsel and Mac’s requesting that they consent to a dismissal of the action against On-Site by April 8, 2022, noting that On-Site had incurred over $4,000 in costs at that point in time.

w. Plaintiff counsel did not respond to the offer and On-Site served its statement of defence on April 10, 2022 and advised that it would proceed with this motion.

x. The notice of motion is dated April 13, 2022. The supporting affidavit was sworn April 13, 2022. The motion record was served the next day.

y. Mac’s served a statement of defence on April 18, 2022. It did not cross-claim against On-Site.

z. On April 22, 2022, the plaintiff served an offer to allow On-Site out of the action on a without-costs basis.

aa. On May 3, 2022, On-Site offered to be removed from the action in exchange for payment of $935 in disbursements and gave the plaintiff until May 13, 2022 to accept the offer.

[11] It is clear from the above that:

a. As early as May 4, 2021, shortly after serving the claim, the plaintiff confirmed the fall took place on the sidewalk right outside the door and that this was confirmed by the store manager;

b. On September 8, 2022, Mac’s confirmed it had jurisdiction over the location of the slip and fall;

c. The plaintiff again acknowledged the location of the fall on February 1, 2022;

d. Plaintiff counsel was able to respond the same day to communications from On-Site’s counsel;

e. Neither discoveries nor pleadings were required to determine where the fall occurred and who was responsible for the sidewalk; and

f. the plaintiff never served a notice of discontinuance on On-Site.

Legal Authorities and Analysis

[12] On-Site relies on the principle that a successful party is presumptively entitled to their costs. It submits that the jurisprudence which applies rule 23.05 of the Rules of Civil Procedure changed with the 2010 amendments and that what was once a prima facie presumption in favour of the moving party is now in the discretion of the court grounded in the rule 57.01(1) factors of the Rules of Civil Procedure. On-Site submits that recent courts have continued to treat rule 23.05 as if there is still either a presumptive entitlement to costs, or at least a starting position in favour of the moving party, subject to the court’s discretion to overrule that presumption.

[13] On-Site references Brahma v. HR Services, 2022 ONSC 2645 in support of its position that it is entitled to costs. In Brahma the court considered the cost consequences of discontinuing an action after exchange of affidavits of documents where the dismissal of the action was a consequence of a separate proceeding brought in Florida. The plaintiff offered to have costs of the Ontario action dealt with in the Florida action. The defendant insisted on costs. The plaintiff moved for dismissal of the Ontario action.

[14] Justice M. Smith in Brahma summarized the applicable principles on a discontinuance as follows:

[24] Costs are at the discretion of the court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).

[25] Rule 57.01(1) of the Rules sets out the factors that a court may consider when deciding on a cost award.

[26] Where a plaintiff discontinues an action, the defendants are presumptively entitled to recover their costs. The court retains its discretion to award costs. In determining if it is appropriate to award costs, the court can consider additional factors such as: (i) the plaintiff had a bona fide cause of action; (ii) it was not frivolous or vexatious; and (iii) there was some justification for the commencement of the claim: 1623242 Ontario Inc. v. Great Lakes Cooper Inc., 2016 ONSC 1002, 55 C.L.R. (4th) 99, at paras. 60-63.

[27] The overriding principles of fairness and reasonableness must be applied to each individual case: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[28] Partial indemnity is commonly awarded unless there are compelling reasons to justify an award at a higher scale.

[15] At the hearing, the plaintiff provided the court with three cases which the plaintiff argues support his position:

a. Parris v Wylie, 2016 ONSC 4778;

b. Kavanagh v Estate of Pierrette Feihl, 2016 ONSC 7886; and

c. Nesbitt v. Jeffery, 2022 ONSC 144.

[16] Parris v Wylie was an action related to a three-vehicle rear end collision. Eventually, the parties agreed to let the Wylie defendants out of the action, but by that time the Wylie defendants were preparing to launch a summary judgment motion. They wanted costs of the action and of the “nonexistent” summary judgment motion. The court declined to award costs to the Wylie defendants.

[17] At paragraph 3 the court noted that:

a) Costs are in the discretion of the court. There is a general principle that costs will follow the event but there is no longer a rule based or statutory presumption. Policy considerations such as encouragement of settlement and discouragement of needless expense are also a feature of the costs regime.

b) It was both reasonable and understandable that the plaintiff sued these defendants. As such the action was not frivolous or vexatious. In the current state of motor vehicle law it would have been negligent not to do so. With the combination of the limitation period, the verbal and monetary thresholds, various other complications created by the Insurance Act, insurance policy limits and the operation of the Negligence Act, it is not only completely understandable but also unavoidable that a plaintiff will engage in “shotgun litigation”. That is the plaintiff will sue every probable defendant. Certainly there is a costs risk to doing so but the risk of losing a right of action against a necessary defendant is higher.

[18] I agree with the aforementioned principles, including that there is a costs risk to suing parties who do not have liability.

[19] It is clear from the decision in Parris v Wylie that the court was dealing with the specific facts before it and the specific conduct of the parties. The court held that in the circumstances of that case, it was reasonable to wait until after discovery to release the Wylie defendants. In particular, the court noted the limitation period, monetary thresholds and complications created by the Insurance Act. There are no such issues at play here.

[20] It appears that in Parris there may have been a request by counsel that the offer to go out without costs be extended. There is no evidence of such a request before me. The evidence is that the plaintiff did not respond to the offer for over two weeks. The plaintiff first responded in the form of an offer to release On-Site without costs after On-Site’s deadline had passed, and after On-Site took other steps which had been previously adverted to by its counsel.

[21] Kavanagh v Estate of Pierrette Feihl, 2016 ONSC 7886 was another three-vehicle collision case. It is distinguishable from the present case. In Kavanagh, examinations for discovery were held and then the plaintiff offered to dismiss the action against the Agbovi defendants without costs. Shortly thereafter the plaintiff filed a notice of discontinuance with respect to the Agbovi defendants. The parties disagreed whether the Agbovi defendants were entitled to costs. The court held that the parties should have argued on the date reserved for an intended summary judgment motion by the Agbovi defendants whether costs were payable. Instead, Agbovi proceeded with its motion for summary judgment in the face of a notice of discontinuance. The court held that the motion was a complete waste of time and an unnecessary expenditure of costs for the parties. The court awarded no costs for the action and awarded costs against the Agbovi defendants on the motion for summary judgment.

[22] I state the obvious by saying that there were no discoveries in this case and the plaintiff never served a notice of discontinuance.

[23] At paragraph 9 of Kavanagh the court held:

[I]t is open to a defendant against whom an action is dismissed, to seek his or her costs to the date of discontinuance as the Defendant Agbovi sought to do here. This might be appropriate where the Plaintiff’s claim was frivolous or vexatious or pursued in bad faith.

[24] I concur with the first part of the above statement, but not the second sentence. I do not agree that costs are only appropriate where the plaintiff’s claim was frivolous or vexatious or pursued in bad faith. The absence of bad faith or the existence of a claim which is not frivolous or vexatious are factors the court can consider, but they are not determinative nor a pre-requisite to costs.

[25] In Nesbitt v Jeffery, 2022 ONSC 144, the court considered the refusal by the MTO to agree to a without costs dismissal of a third party claim by Jeffery against the MTO after the plaintiff’s action against Jeffery and Jeffery’s third party claim against others was dismissed. The action involved a motor vehicle accident which the plaintiff asserted was Jeffery’s fault. Jeffery asserted the road conditions caused or contributed to the accident and added the municipalities and eventually the MTO. The main action settled at mediation. Jeffery then examined the MTO and following answers to undertakings determined he could not succeed against the MTO. A proposal for a dismissal without costs having been ignored, Jeffery served a motion to dismiss the third-party claim without costs. The MTO brought a cross motion to dismiss for delay pursuant to rule 24.01 of the Rules of Civil Procedure. The only issue before the court was costs.

[26] At paragraphs 19 and 20 of Nesbitt, the court noted:

[19] A mere five days after receiving the answer to the question taken under advisement at the MTO representative’s examination, Jeffrey [sic] offered to discontinue the third party action. Seemingly ignoring this clear signpost that the main action was over, and that Jeffrey [sic] was offering to shut the third party claim down, the MTO continued to work on the file. For example, it took no steps to end the retainer with the expert it had engaged just two weeks before Jeffrey’s [sic] offer to dismiss. The MTO’s bill of costs is approaching $30,000, fifty percent of which is comprised of the cost of this needless report.

[20] I find it was not reasonable for the MTO to insist on its costs in this instance. There was nothing frivolous or vexatious about Jeffrey’s [sic] third party claim against the MTO. Nor was the third party claim pursued in bad faith. Being brought into a lawsuit in instances where road conditions may have played a factor is eminently reasonable. Awarding costs to the MTO to assuage its frustration could serve to cast a chill over future claims against it.

[27] The court in Nesbitt ordered costs in favour of Jeffery.

[28] In the present case, unlike in Nesbitt, On-Site had already served this motion before the plaintiff offered to dismiss against On-Site without costs. It appears that in Nesbitt, it was not evident that there was no viable claim against the MTO until after discoveries and undertakings were answered. That is not the case here. It was or should have been evident and easily confirmed not long after the action was commenced that there was no claim against On-Site. The plaintiff did not take steps to discontinue when Mac’s confirmed jurisdiction over the place of the accident in September 2021. Nor did it do so when the Requests to Admit and answer by Mac’s were served in early March 2021. There is no evidence before me that the plaintiff, despite being prompted repeatedly by On-Site, obtained or sought to obtain any confirmation it may have believed was necessary to conclude there was no basis for the claim against On-Site. Such confirmation was readily available given Mac’s admission in September 2021 and in its statement of defence.

[29] It appears to me that the court in the three cases referenced by the plaintiff was concerned by conduct on the part of defendants in the face of steps taken by the claiming parties to discontinue their actions in some form. That is not what occurred here. The plaintiff did not take any steps to discontinue its action against On-Site prior to or after serving its offer.

[30] I do not read the above-referenced decisions as standing for the principle that where a plaintiff wants to let a defendant out of an action without costs a plaintiff is always entitled to the dismissal of its action without costs where the claim was not frivolous or vexatious or not pursued in bad faith. I do not read these cases as creating a principle that only where the claim by the plaintiff is frivolous and vexatious and pursued in bad faith should costs be awarded to the defendant. Whether a claim is frivolous and vexatious is a factor that a court can consider in exercising its discretion whether to award costs, but it is not a prerequisite to an award of costs. There are other factors to consider.

[31] As noted in Parris, there is a costs risk in bringing an action against a defendant against whom it is ultimately determined there is no claim. This is balanced against the risk of not claiming against a proper defendant. The risk of costs is increased when the plaintiff persists in the face of evidence which strongly indicates that there is no liability on the defendant and the plaintiff does not take reasonable steps to clarify that evidence if it has any doubt.

Disposition

[32] When the claim was issued, it was not frivolous or vexatious. However, it very soon became evident that there was likely no merit to the claim against On-Site. The plaintiff did not take reasonable steps to investigate or confirm this. Instead, the plaintiff sought to move the action forward, eventually seeking to schedule discoveries shortly before On-Site served its statement of defence and this motion.

[33] The issue faced by plaintiff counsel was a simple one – did the fall occur on the sidewalk or beyond the sidewalk and who was responsible for maintenance of the sidewalk. The plaintiff knew where he fell. He knew by September 8, 2021, that Mac’s agreed it had jurisdiction over the area of the fall. There is nothing in the record to indicate that the plaintiff required any clarification of what Mac’s meant by this or that the plaintiff took any steps to seek clarification.

[34] The plaintiff refused to formally admit where the accident took place and refused to respond to a simple Request to Admit.

[35] In his affidavit, plaintiff counsel (in the action) asserts that it was not until he received Mac’s statement of defence that it was evident that On-Site was only responsible for snow and ice removal on the area intended for vehicular traffic as opposed to the sidewalk/walkway where the plaintiff fell and that it was prudent to review the statement of defence from Mac’s before making any decision on the dismissal of the action against On-Site. In the circumstances outlined above, I do not accept this was the case.

[36] The plaintiff pressed on with its claim against On-Site when he was aware of the risk of doing so. On-Site had adverted to the risk of costs and steps it could take if there was no resolution.

[37] The encouragement of settlement and discouragement of needless expense are both factors which may be considered in the exercise of discretion to award costs. Early discussions to narrow issues and liability of any parties are to be expected and should be encouraged. It is not appropriate for plaintiffs to assume that defendants must agree to a without costs dismissal of claims against them no matter the complexity of the issue, the circumstances at play, or the stage of the action.

[38] While it may be appropriate for plaintiffs to commence claims against defendants they are not yet certain will be liable at the time of pleading, parties should pursue reasonable steps and information to determine liability at the earliest opportunity, particularly where the defendants are willing to participate in such discussions. Sometimes that can occur before defences are served, sometime before discoveries, and sometimes only after discoveries and undertakings are answered – depending on the particular facts in issue.

[39] The conduct of counsel is exemplary of the sort of stalemate that can occur in these situations. One imagines that a phone call (no phone calls are referenced in the affidavits) or conference call among all counsel could have addressed the issue in a timely and cost-effective manner.

[40] The plaintiff could have accepted the offer from On-Site to go out without costs within the two weeks that it was extant. The plaintiff could have asked for an extension if one was needed. The plaintiff did not do so. The plaintiff could have accepted the offer from On-Site of a dismissal with modest costs for disbursements. The plaintiff ignored that offer.

[41] It was reasonable for On-Site to request costs in these circumstances. It was reasonable to put the matter before the court if the parties could not agree on the amount of those costs. It was not unreasonable to pursue the motion.

[42] On-Site is entitled to its costs of the action and the motion.

[43] Both parties submitted cost outlines, but not bills of costs or dockets.

[44] On-Site seeks its costs of the action and motion on a partial indemnity basis in the amount of $8,183 inclusive of disbursements and HST. The hourly rates claimed are very reasonable. The amount of time spent on the litigation prior to the drafting of the motion is not unreasonable. The manner in which On-Site’s costs outline is prepared makes it difficult to determine why over 11 hours of time was incurred in correspondence following preparation of the motion record. I cannot tell the purpose of the correspondence or whether it was all necessary. The time spent on the motion is otherwise reasonable.

[45] The plaintiff has submitted a bill of costs for the motion on a partial indemnity basis in the amount of $3,305 inclusive of fees and HST.

[46] Having considered the relevant factors, I exercise my discretion to award costs payable by the plaintiff to On-Site in the amount of $3,700 inclusive of disbursements and HST for the action and $3,625 inclusive of disbursements and HST on the motion.

[47] The action against On-Site is dismissed.

M. Bordin, J.

Date: March 14, 2023