Court File and Parties

COURT FILE NOs.: CV-17-583748 and CV-23-695409 DATE: 20230828 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE MEMBERS OF BETHEL RESTORATION MINISTRIES, PASTOR GREAVES, and EULALIE WATSON JACKSON, Plaintiffs – and – ROBERT NOBLE, ERIC SAYERS, and HERBERT PHILLIPS, Defendants

AND RE: BETHEL RESTORATION MINISTRIES – and – ELTON GREAVES and EULALIE WATSON JACKSON, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: David Lees, for the Applicants (in CV-17-583748) and Respondents (in CV-23-695409), Elton Greaves, Eulalie Watson Jackson, The Members of Bethel Restoration Ministries, and Pastor Greaves Eulalie Watson Jackson (the “Greaves Group”) Osborne Barnwell, for the Applicants (in CV-23-695409) and Respondents (in CV-17-583748), Bethel Restoration Ministries, Robert Noble, Eric Sayers, and Herbert Phillips (the “Noble Group”)

HEARD: Cost submissions in writing

Costs Endorsement

[1] The Greaves Group brought an Application to enforce Minutes of Settlement and were successful. Counsel for the Greaves Group seeks costs on a substantial indemnity scale.

[2] In doing so, he relies on Morguard v. 1168932 Ontario Limited, 2020 ONSC 5662, where the Justice C.J. Brown stated, at para 5:

The court has power to award costs on a substantial indemnity basis: R. 57.01(4)(c) of the Rules of Civil Procedure. Substantial indemnity costs awards are often granted when a party is forced to seek the court’s assistance to enforce a valid settlement agreement: Randy River Inc. v Mint Accessories Inc., 2018 ONSC 1215 paras. 45, 47; Argiris (In Trust) v Vradis, [2006] O.J. No. 3292, para 17.

[3] It is, of course, correct to say that the court has the power to award substantial indemnity costs in the right case. It is also correct to say that it is often appropriate to do so when a party seeks a court order to enforce a valid settlement agreement. But, as the Supreme Court of the United Kingdom has observed, “in law context is everything”: R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, at para 28.

[4] The context of the Morguard case was provided by Justice Brown at paragraph 8 of her reasons for decision. As she describes it, that context had very little in common with the case at bar:

I find that the conduct of 116 [the defendant] throughout the proceedings has been deliberate, attempting to delay any judgment and, since the settlement agreement, any payment of the amounts owing and any fulfilment of the terms of the agreement to resolve the pollution problem. I find the conduct of 116 to be reprehensible.

[5] There was nothing reprehensible or in any way improper about the conduct of the Noble Group in the present case. They had a bona fide argument that, although unsuccessful, they believed to be correct. Their counsel advanced their case in a proper and professional way. While the Noble Group’s position in the motion challenged the enforcement of a settlement agreement, that position was based on a legal argument that they hoped would vitiate the agreement. Unlike in Morguard, the losing side was not engaged in an exercise in delay, or in a cynical attempt to stave off the inevitable by raising specious issues.

[6] Someone wins and someone loses every case, and the Noble Group lost this one. But their conduct of the case was not oppressive, nor was it done in a way that reflected badly on them or that would attract criticism.

[7] The Greaves Group is therefore entitled to costs on the ordinary partial indemnity scale. There is nothing in the conduct of the Noble Group that would prompt me to impose costs on a more elevated scale.

[8] Counsel for the Greaves Group has submitted a Bill of Costs seeking $23,494.41 on a substantial indemnity basis or $15,879.43 on a partial indemnity basis. In their Costs Outline, Noble Group’s partial indemnity costs come to $15,463.86 – i.e. almost the same amount as that of the Greaves Group.

[9] Rule 15.01(1)(0.b) of the Rules of Civil Procedure instructs motion judges to award “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.” The Noble Group must reasonably have expected the Greaves Group to have incurred costs of more-or-less the same amount as they incurred themselves.

[10] Using round numbers for convenience, the Noble Group shall pay the Greaves Group costs in the total amount of $15,800, inclusive of all fees, disbursements, and HST.

Date: August 28, 2023 Morgan J.