Court File and Parties

Court File No.: CV-19-07-00 Date: 2023-01-06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Greg Sigurdson, Gina Sigurdson and Miranda Sigurdson Self-Represented Plaintiffs

- and -

Norbord Inc. and Resolute FP Canada Inc. C. Breukelman, for the Defendants Defendants

HEARD: In Writing, at Fort Frances, Ontario

Before: Madam Justice T. J. Nieckarz

Decision On Costs

Introduction

[1] This decision on costs relates to the motion of the Defendants to strike the Plaintiffs’ pleading, without leave to amend. In addition, or alternatively, the Defendants sought an order for partial summary judgment dismissing the claims of the Plaintiffs under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). That contested motion was heard May 9, 2022.

[2] For reasons delivered in Sigurdson et al v. Norbord Inc., et al, 2022 ONSC 4658, dated August 12, 2022, I granted the Defendant’s motion, but with leave to amend. To summarize, I found as follows:

(a) That the Plaintiffs’ amended pleading was extremely problematic. It plead evidence as opposed to material facts, contained irrelevancies, and contained argument. It was so replete with irrelevancies that it confused the issues to be determined.

(b) The pleading constituted an abuse of process as it was being used for an improper collateral purpose, being to bolster a claim in a family law action.

(c) The pleading as drafted could not be rectified or saved by mere amendments and was even more problematic than the original pleading I had previously struck. I urged the Plaintiffs to seek legal advice. I ordered that they could only further amend their pleading within 60 days of my decision, and with leave of the court so that the court could ensure the pleading was proper.

(d) WSIAT had determined that Joshua Sigurdson had no right to sue the Defendants for negligence. Therefore, any FLA claims that were derivative of Joshua’s right to sue could not be maintained and were similarly extinguished. I dismissed those claims.

[3] This was not the first motion brought by the Defendants to strike the Plaintiffs’ pleadings. A previous motion was argued in April 2021. For reasons set out in Sigurdson et. al. v. Norbord Inc., et. al., 2021 ONSC 5193, I granted the Defendants’ motion. The pleading was struck, with leave to bring FLA claims (WSIAT had not yet made its determination) and for the Plaintiff, Greg Sigurdson to bring his tort claim.

[4] As part of my August 2022 decision, I invited submissions as to costs. The Defendant seeks costs of its motion, fixed in the amount of $4,222.25. The Defendants argue that they are the successful party and have a prima facie entitlement to costs that are fair, proportionate, and reasonable. They argue that they have been put to the expense of multiple unnecessary proceedings as a result of the Plaintiffs’ improper pleadings.

[5] The Plaintiffs argue that the Defendants were not the successful parties, but that success was divided given that the Defendants’ request was to strike the pleading without leave to amend and leave to amend was granted.

[6] For the reasons that follow, costs are awarded to the Defendants in the amount of $3,500.

The Law

[7] An award of costs is in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act.

[8] The discretion of the court is to be exercised in light of the facts and circumstances of the case in relation to the factors provided for in Rule 57.01(1).

[9] In addition to the outcome and any offers to settle that were made, Rule 57.01(1) provides for consideration of the following factors:

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 any other matter relevant to the question of costs.

[10] A costs award must be fair and reasonable. It should not merely be a calculation of the hours spent, but also reflect the reasonable expectations of the parties. An award of costs should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at paras. 37-38; Andersen v. St. Jude Medical Inc., 2006 ONSC 85158 (Div. Court) at para. 22.

[11] Unless the court is satisfied that a different order would be more just, Rule 57.03 directs that the court shall fix the costs of a motion and order them to be paid within 30 days.

[12] In general, costs follow the event unless there are special circumstances: Watts v. Benvenutti, 2006 ONCA 17920, at para. 8.

Analysis

Are the Defendants the Successful Parties?

[13] The Plaintiffs dispute the Defendants’ claim to be the successful parties to the motion. The Plaintiffs argue that there is divided success because the Defendants failed to obtain an order striking the Amended Statement of Claim without leave.

[14] I disagree with the Plaintiffs’ position. While the Defendants were not successful in striking the claim without leave, they were successful with respect to the primary issues that were argued; whether the claim should be struck and whether the FLA claims should be dismissed. I find that, overall, the Defendants were the successful parties and should not be deprived of costs because they were unsuccessful with respect to one argument advanced. The fact that the Defendants were unsuccessful on one issue is taken into consideration by me in determining the amount of costs they are entitled to.

Amount of Costs

[15] The total costs claimed by the Defendants are allocated as follows:

Fees on a partial indemnity basis: $3,376.50 Estimated lawyer’s fee for appearance: $ 360.00 Disbursements $ 0 HST $ 485.75 Total: $ 4,222.25

[16] The hourly rate claimed by the Defendants was not specified in the costs submissions or costs outline. Based on the information provided, I have calculated Mr. Breukelman’s actual rate is $200 per hour and his partial indemnity rate is $120.00 per hour. While there are other lawyers and students who worked on the case and whose work forms part of the costs claimed, none of the rates claimed strike me as unreasonable given the level of experience of the counsel indicated.

[17] There is a claim made for fees for “BW”. There is no indication as to who “BW” is and what their involvement in the case was. These fees are not allowed.

[18] In determining a reasonable amount of costs, I have considered the legal principles outlined above, including all the factors set out in subrule 57.01(1). In particular, I note:

a. This matter did involve some level of complexity related to the impact of the WSIAT decision on the FLA claims and the abuse of process arguments. On the other hand, there is a fair bit of overlap on other issues and materials/law already prepared for the first motion, which the Defendants acknowledge, has reduced the amount of time necessary to devote to this motion.

b. The issues were important to both parties. It is important to have proper pleadings before the court, free from irrelevancies that will increase costs to the parties to litigate and distract from the true legal issues. It was also important, and a wise use of resources, for the Defendants to have the FLA claims determined summarily as opposed to spending additional fees to take the issue to trial.

c. The conduct of the Plaintiffs necessitated the motion. This was not the first motion, but the second to deal with deficient pleadings. Not only the pleadings, but motion materials contained irrelevancies that increased costs. The Plaintiffs’ ill-informed decision to raise separate family law issues in the context of the Amended Statement of Claim drove the abuse of process claim. I agree with the Defendants that this made the Amended pleading even more deficient than the original. This additional issue increased costs to the parties unnecessarily.

d. Without dockets to determine the role of each lawyer claimed for in the Costs Outline it is impossible to say with certainty, but given that there were three lawyers and two students working on this case, there is likely some overlap and extra fees that the Plaintiffs should not be responsible for.

[19] Given the materials filed and the length of the motion itself, given that some of the materials were already available from the first motion, and in light of the other factors considered in this decision, I find that a fair and reasonable amount for the Plaintiffs to pay to the Defendants on account of costs of this motion is $3,500.

[20] The Plaintiffs are hereby ordered to pay to the Defendants the total sum of $3,500 within 30 days of the date of these Reasons.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz Released: January 6, 2023