Court File and Parties

COURT FILE NO.: CV-23-00697590-0000 DATE: 20230607 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADAM JACOBS and MITCHELL COHEN, Plaintiffs – and – REGAN McGEE a.k.a. HARRY PLUM, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Susan Kushneryk, Eric Morgan, and Alexis Beale, for the Plaintiffs Justin Nasseri, Helen Richards, and Gordon Vance, for the Defendant

HEARD: Costs submissions in writing

Costs Endorsement

[1] The Plaintiffs brought an urgent motion seeking a Norwich order. On May 8, 2023, I issued my reasons for decision denying the requested Order. I found, in essence, that there was no urgency and nothing for the Plaintiffs to search for and seize that could not wait for the usual production and discovery process to work its way through.

[2] The Defendant is entitled to costs. His counsel submits that these costs should be payable forthwith on a substantial indemnity basis. The Costs Outline accompanying this request shows that Defendant’s counsel incurred $50,427.04 on a substantial indemnity basis and $34,502.80 on a partial indemnity basis. Both figures are inclusive of disbursements and HST.

[3] Plaintiffs’ counsel concede that the Defendant is entitled to some costs, but submit that they be payable in the cause. They also argue that costs should be calculated on a partial indemnity basis, with a further reduction of 30% for, as they put it, “the increased costs incurred by the Defendant because of his delay in retaining Counsel and the costs associated with the cross-motion.”

[4] Turning first to Plaintiffs’ counsel’s last point, the cross-motion is a non-issue here. It sought to strike out certain paragraphs of the Plaintiffs’ supporting affidavit as being hearsay. It was minimally responded to, barely referenced by either side at the hearing itself, and played no role in my decision denying the Norwich Order.

[5] As for the timing of the costs award, I see no reason to order that costs be delayed by being made payable in the cause. In my reasons for decision on the Norwich motion, I indicated that although I was making no definitive findings on the merits of the claims pleaded by the Plaintiffs, they did not strike me as particularly strong.

[6] I also indicated that the entire litigation was connected to a dispute between the parties in a separate and ostensibly unrelated action. The Defendant viewed the present claim and Norwich motion as a trumped-up means of pressuring them in the unrelated matter.

[7] With that background in mind, the request for costs in the cause may be a request to put off any costs ruling into an indefinite future. It is unjustifiable and, if I can put it this way, asymmetrical, for a party to bring an upfront Norwich motion on an urgent basis, but once it was found not to be urgent and not to justify any production up front, to seek to put off the question of costs to the very back end of the litigation.

[8] I also see no reason to discount the Defendant’s costs because of any delay in getting counsel on board. The Defendant is embroiled in related litigation with the Plaintiffs and was taken by surprise by the issuance of the present claim in what he would characterize as a collateral attack.

[9] What is truly surprising is not so much that the Defendant needed a little time to respond; that was a natural result of the way in which this action has come about. Rather, the surprise is that the Plaintiffs thought that the Defendant would not respond at all, and had their counsel advise the motion scheduling court of that. The motion was therefore initially thought by the court to be a much shorter, undefended motion than it turned out to be.

[10] It must have been obvious to the Plaintiffs that since the Defendant was fully engaged with them in the other claim, they would eventually catch their breath and defend this one as well. The Norwich motion called for full disclosure from the outset – i.e. to the first trial scheduling judge – of the fact that the parties were already engaged in litigation. The failure to do so suggests that the Plaintiffs were hoping to get this Order before the Defendant, and perhaps the court, realized what had happened.

[11] Costs are discretionary under section 131 of the Courts of Justice Act. Given the Plaintiffs’ mode of proceeding, the Defendant is entitled to costs forthwith, on a substantive indemnity scale: see Rules 57.01(1)(e) and (f) of the Rules of Civil Procedure.

[12] Since Plaintiffs’ counsel have not submitted a Costs Outline of their own, I have nothing with which to compare the Defendant’s costs request. I note, however, that Plaintiffs’ counsel do not seem to take issue the quantum sought by Defendant’s counsel, except in the respects that I have already addressed above. That is, they do not say that too many hours were spent by Defendant’s counsel on any aspect of the motion, or that too much time and attention was spent overall.

[13] I therefore conclude that, although Plaintiffs’ counsel object to use of a substantive indemnity scale, the hours invested in the motion by Defendant’s counsel are within the range that both parties see as reasonable for what the motion entailed.

[14] Using round figures for the sake of convenience, the Plaintiffs shall pay the Defendant, forthwith, costs in the all-inclusive amount of $50,000.

Date: June 7, 2023 Morgan J.