Court File and Parties
Court File No.: CV-23-49 Date: 2023-09-29 Superior Court of Justice - Ontario
Re: Don Williams, Plaintiff And: Andrew Currie, Jake Currie, Danielle Smith-Currie, George Keith Smith, Lynn Murdy Smith and John Doe, Defendants
Before: Justice C. Boswell
Counsel: Jadeney Wong for the Plaintiff Cara Valiquette for the Defendants
Heard: August 1, 2023
Ruling on RULE 21 MOTION
[1] Mr. Williams was a dedicated saver. But he eschewed the traditional banking system. He kept his savings in a safe hidden in a storage room in his basement. On March 27, 2019, someone broke into his home and took the safe. Mr. Williams says it contained roughly $276,000 – his entire life savings.
[2] Mr. Williams alleges that the defendants were responsible for the break-in and theft. His reasons for thinking so are set out in the Statement of Claim which was issued on April 14, 2023. It is unnecessary to address the merits of his claim in this ruling. The issue now before the court is whether Mr. Williams commenced his claim in a timely way.
[3] In Ontario, most civil claims are subject to a two-year limitation period. When the clock begins to tick on that limitation period is often in dispute, as it is here.
[4] The defendants say the clock began to tick on March 27, 2019 when the break-in at Mr. Williams’ home occurred. He immediately suspected two of the defendants as the perpetrators of the crime. Within several months he suspected all of the defendants as either participating in or profiting from the crime.
[5] The defendants acknowledge that limitation periods were extended by 183 days during the Covid-19 pandemic, pursuant to Ontario Regulation 73/20 made under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. By their math, Mr. Williams had until mid-January 2022, at the latest, to commence his claim. He did not do so until April 2023. The defendants submit that his claim is statute-barred as out-of-time pursuant to the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[6] The defendants move, under r. 21.01(1)(a) of the Rules of Civil Procedure, to dismiss the claim.
[7] Mr. Williams demurs. He urges the court to dismiss the defendants’ motion on both substantive and procedural grounds.
[8] First, Mr. Williams contends that the limitations clock did not begin to tick until May 22, 2022. He says that when he discovered the theft of his safe, he reported it to the police, resulting in a criminal investigation. He waited for the investigation to lead to charges. But in the spring of 2022 he was advised by the police that no charges were going to be laid. In response, he immediately laid a private information. That information was, however, withdrawn by the Crown on May 26, 2022.
[9] Mr. Williams submits that it was not until the Crown withdrew his private information that he reasonably knew, or ought to have known, that a civil proceeding was an appropriate means of addressing the wrong against him. He submits that his claim was therefore issued in a timely way.
[10] Second, Mr. Williams submits that r. 21 is not an appropriate mechanism to address a limitations issue given that the reviewing judge must make specific findings of fact regarding when the action was discovered, whether the limitations period might be extended for some reason, and when the plaintiff knew or should have known that a civil proceeding would be an appropriate method to address the wrong. Evidence is not permitted on r. 21 motions, however, so the court is not in the position to make the necessary factual findings.
[11] The defendants agree that r. 21 is not generally an appropriate mechanism to address limitation issues. But they argue that there are limited circumstances in which r. 21.01(1)(a) can provide a route to a dismissal of an action as being out-of-time. In particular, where there are no facts in issue and the limitations dispute is purely a question of law. They say this is such a case.
The Use of Rule 21 to Adjudicate Limitations Issues
[12] Rule 21.01(1)(a) provides as follows:
(1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.
[13] Rule 21 is one of a suite of rules aimed at disposing of civil proceedings without the need for a trial in appropriate circumstances. Some of the mechanisms provided for in this suite of rules are evidence-based, for instance a motion for summary judgment under r. 20. Others, like r. 21, are law-based. See Brozmanova v. Tarshis, 2018 ONCA 523, at paras. 10-12.
[14] Because r. 21 provides a law-based mechanism for disposing of a claim, no evidence is admissible on a motion under r. 21.01(1)(a) without leave of the court or on consent of the parties. The court must instead proceed on the basis that the facts, as stated in the pleadings, are true, unless they are patently absurd or incapable of proof. See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17-22. See also Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 at para. 14. The controlling question, on a r. 21 motion, is whether it is plain and obvious, on the face of the pleadings, that the plaintiff’s claim cannot succeed. See Hunt v. Carey Canada Inc., [1992] 2 S.C.R. 959 at para. 33.
[15] The use of r. 21.01(1)(a) to resolve a limitations issue has been described by the Court of Appeal as “problematic”. See Brozmanova, at para. 17. The problem arises largely because, as Mr. Williams’ counsel pointed out, the court must ascertain the day on which the limitations clock began to tick. Doing so requires the court, in most cases, to make a finding of fact about the day on which the claim was discovered.
[16] Again, because r. 21 is a law-based mechanism and not an evidence-based mechanism, it is generally not the proper procedural vehicle for weighing evidence or making findings of fact. Its use in limitations disputes is discouraged save “in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed.” See Beaudoin Estate, at paras. 30-31. See also Toussaint v. Canada (Attorney-General), 2023 ONCA 117, at para. 11.
[17] Where there are disputed facts regarding the commencement or extension of a limitation period, it would be unfair to a plaintiff for a motions judge to make factual findings under r. 21 because, as I noted, the rule prevents the parties from adducing evidence on the issue. See Brozmanova, at para. 22-23 and Beaudoin Estate, at para. 34.
[18] Where, on the other hand, the facts regarding discovery of a claim are undisputed, then whether the action is statute-barred is a question of law that may be determined under r. 21. See Kaynes v. BP, P.L.C., 2021 ONCA 36, at para. 76. Indeed, “where a plaintiff’s pleadings establish when the plaintiff discovered the claim, so that that issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success”. See Kaynes, at para. 81.
[19] In the result, the disposition of the defendants’ motion under r. 21.01(1)(a) turns on whether there are disputed facts regarding Mr. Williams’ discovery of his claim against the defendants. Mr. Williams says there are. The defendants disagree.
[20] For the reasons that follow, I agree with the defendants’ position. I find that there are no disputed facts regarding Mr. Williams’ discovery of his claim against the defendants, or at least none that are capable of extending the limitation period. The issue in dispute, relative to this motion, is a question of law: whether Mr. Williams can rely on an ongoing criminal investigation against the defendants to extend the limitation period.
[21] This is, in the result, one of those rare cases where a r. 21 motion is appropriate to address the limitation issue.
The Discovery of the Plaintiff’s Claim
The Discovery Concept
[22] The question central to the disposition of this motion is when the limitation period to commence Mr. Williams’ claim expired. To make that determination, one must determine when the limitations clock began to run.
[23] In Ontario, the limitations clock starts to tick when a plaintiff first discovers that he or she has a claim against a defendant. Sections 4 and 5 of the Limitations Act, 2002 provide as follows:
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption (2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[24] The Supreme Court has recently instructed that a claim is discovered, for the purposes of a limitations period, when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. See Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 3 and 42. See also Andrews v. Pattison, 2022 ONCA 267 at para. 5.
[25] A “plausible inference of liability” is something more than suspicion or speculation but less than certainty of liability. See Grant Thornton, paras. 45-46. Where a particular case falls on the spectrum between mere suspicion and certainty involves a fact-based inquiry. See Andrews, at para. 5.
[26] The “material facts” the plaintiff must have actual or constructive knowledge of are those set out at ss. 5(1)(a)(i) to (iii) of the Limitations Act, 2002. See Grant Thornton, at para. 43. In addition, of course, the plaintiff must know, actually or constructively, that a proceeding against the defendant would be an appropriate means to seek to remedy his or her loss.
Knowledge of the Material Facts (ss. 5(1)(a)(i) to (iii))
[27] With respect to the material facts described in ss. 5(1)(a)(i) to (iii), I agree with the defendants that there is no dispute that by the end of July 2019 Mr. Williams knew, or ought to have known, that he had suffered a loss; that the loss was caused by specific acts or omissions; and that the acts or omissions were those of the defendants.
[28] In other words, in my view it is plain and obvious on the face of the pleadings that by the end of July 2019, Mr. Williams had knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendants’ part could be drawn. I reach that conclusion for the following reasons:
(a) Mr. Williams seeks damages against the defendants for “fraud, conversion, trespass to chattels, conspiracy and/or unjust enrichment”; (b) The substance of the claim is that two of the defendants, Jake and Andrew Currie, broke into his home and stole his safe and other personal property. They, together with the balance of the defendants, then wrongfully converted his money and property to their own enrichment; (c) Mr. Williams pleads that after the break-in, he “immediately” suspected that Jake and Andrew Currie were responsible. That suspicion became something more by the end of July 2019. It was, in Mr. Williams’ words, “confirmed” after the defendants apparently “came into a windfall gain in mid-2019”. He clarified what he meant by “mid-2019” later in the claim when he said that “since July 2019”, the defendants have continually “posted on social media about their new purchases and possessions.” He alleges that the defendants’ lifestyle has been funded by the money and property stolen from him; and, (d) The statement of claim does not plead any material facts in support of Mr. Williams’ claim against the defendants that were not known to him by the end of July 2019.
[29] As I understand the parties’ positions, Mr. Williams does not seriously dispute that, by the end of July 2019, he had knowledge of the material facts referenced at ss. 5(1)(a)(i) to (iii). His focus in argument was on the application of s. 5(1)(a)(iv).
The Appropriateness of a Civil Claim (s. 5 (1)(a)(iv))
[30] The discovery of a claim, for the purposes of the Limitations Act, 2002, includes a fourth element. In addition to having knowledge of the material facts upon which a plausible inference of liability on the defendants’ part could be drawn, the plaintiff must also know, actually or constructively, that, having regard to the nature of his or her loss, a proceeding would be an appropriate means to remedy it.
[31] Mr. Williams’ defence to the limitations issue is that he did not know, nor should he have reasonably known, that a civil proceeding against the defendants would be an appropriate means of remedying his loss until May 26, 2022 when his private information was withdrawn by the Crown, thereby ending any reasonable prospect of a criminal prosecution against the defendants.
[32] Mr. Williams’ position is that he reasonably relied on an ongoing criminal investigation to redress the wrong committed against him. His hope was that the defendants would be charged and convicted and that a restitution order would be made. Such an order, he says, may well have made him whole.
[33] The central issue on this motion is whether Mr. Williams’ position raises factual issues that must be determined other than on a r. 21 motion, or whether, as a matter of law, his assertions are ineffective to suspend the running of the limitation period, even if true.
[34] Answering that question is somewhat tricky.
[35] At first blush, it would appear clear from the caselaw that determining when a civil action is appropriate is a very fact-specific exercise and, as such, not suitable to a r. 21 motion.
[36] In Fercan Developments Inc. v. Canada (Attorney General), 2021 ONCA 251, for instance, the Court of Appeal held that the determination, under s. 5(1)(a)(iv) is a fact-specific exercise; whether a proceeding would have been an appropriate means to seek to remedy a plaintiff’s loss will turn on “the facts of each case and the abilities and circumstances of the particular claimant”. See para. 16.
[37] Laskin J.A. expressed similar views in 407 ETR Concession Co. v. Day, 2016 ONCA 709, where he said, at para. 34, that “when an action is ‘appropriate’ depends on the specific factual or statutory setting of each individual case…Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts.”
[38] That said, the caselaw also appears clear that some factual circumstances are capable of delaying the commencement of a limitation period and others are not.
[39] There appears to be little dispute that the term “appropriate” as used in s. 5(1)(a)(iv) means “legally appropriate”. See Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, at para. 34. As Sharpe J.A. reasoned in Markel, giving the term “appropriate” an evaluative gloss may permit parties to delay the commencement of proceedings for some tactical or other reasons and would “inject an unacceptable element of uncertainty into the law of limitations of actions.”
[40] Accordingly, circumstances where a plaintiff has delayed commencing a civil claim for evaluative or tactical reasons are not capable of delaying the commencement and running of the limitations clock. This principle sounds simple enough but in practice is has proven to be less than simple to apply.
[41] The differing approaches in the Court of Appeal’s decisions in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 and Sosnowski v. McEwen Petroleum Inc., 2019 ONCA 1005, illustrate my point.
[42] In Winmill, the plaintiff got into an altercation with police officers on June 1, 2014. He was charged with assaulting police and resisting arrest. He was acquitted of both charges on February 17, 2016.
[43] On June 2, 2016, the plaintiff commenced an action against the police seeking damages for negligent investigation and battery. The police successfully moved to dismiss the action as statute-barred by the Limitations Act, 2002. The plaintiff successfully appealed.
[44] MacPherson J.A., citing the court’s decision in 407 ETR, held that when an action is “appropriate” depends on the specific factual or statutory setting of each individual case. In turn, that factual setting requires that “attention be paid to the abilities and circumstances of the person with the claim.” (Para. 24).
[45] In the specific factual setting of Winmill, MacPherson J.A. found that the criminal charges for assault and resisting arrest were inextricably intertwined with the alleged tort of battery. They were, he said, “two sides of the same coin, or mirror images of each other.” (Para. 28). He concluded that, in the circumstances, it made sense for the plaintiff to postpone deciding whether to make a battery claim against the police until his criminal charges were withdrawn. The verdict in the criminal trial, he said, “would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents.” (Para. 31).
[46] Huscroft J.A. dissented in Winmill. In his view, the reasons of the majority tended to undermine the meaning of the phrase, “legally appropriate” as defined in Markel. In particular, it tended to give the word “appropriate” an evaluative gloss and permitted the plaintiff to delay the commencement of proceedings for some tactical or other reason. (Para. 40).
[47] Huscroft J.A. would have dismissed the appeal, noting that a number of trial courts have held that a plaintiff cannot delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings. (Para. 44). Mr. Winmill, he said, made an improvident decision which the Court of Appeal had no discretionary power to relieve against.
[48] In Sosnowski, the plaintiff was terminated, purportedly for cause, on November 9, 2009. McEwen alleged that Mr. Sosnowski had stolen fuel from it in the course of his employment. The alleged theft was reported to the police and charges were laid. Mr. Sosnowski was convicted of a number of charges on August 15, 2011. He successfully appealed and was acquitted on all counts on November 26, 2014. After his acquittals he commenced an action for wrongful dismissal.
[49] McEwen moved to dismiss the claim on the basis that it was out-of-time. Mr. Sosnowski argued that his case was on all fours with Winmill. Specifically, that until the criminal proceedings were complete, it made no sense for him to commence a civil proceeding. If he was convicted, then his civil proceeding would have no chance of success and would have been a waste of time and resources. Said another way, the verdict in the criminal trial would be a crucial factor in his determination of whether to proceed with a civil action for wrongful dismissal.
[50] The motions judge distinguished the facts in Mr. Sosnowski’s case from those in Winmill on the basis that, in Winmill, the civil case involved the conduct of the police, who were also closely involved in the criminal proceedings. That was not the case in Sosnowski. The Court of Appeal agreed.
[51] Hourigan J.A., for a unanimous panel, found that what Mr. Sosnowki sought to do was wait until the criminal proceedings concluded so that he could evaluate his chances of success in the civil action – something Markel specifically prohibits.
[52] One could be forgiven for missing the subtle differences in the factual contexts of Sosnowski and Winmill.
[53] Recently, Myers J., of this court, attempted to explain the different results in Winmill and Sosnowski, in his reasons in Kulyk v. Guastella, 2021 ONSC 584.
[54] The facts are relatively straightforward. Mr. Kulyk and Ms. Guastella were separated spouses. Ms. Guastella made allegations of fraud and assault against Mr. Kulyk leading to criminal charges. Mr. Kulyk claimed that the statements were defamatory. It was more or less undisputed that Mr. Kulyk knew, by April 2014, all of the elements of his cause of action for defamation. In February 2017 the Crown withdrew the charges against him. He commenced a lawsuit sounding in defamation in August 2018.
[55] Mr. Kulyk’s case was commenced outside of the two-year limitation period. He argued, however, that the limitation period was extended by virtue of the criminal proceedings, relying heavily on the reasoning of Winmill.
[56] Myers J. concluded that the decision in Sosnowski had the effect of limiting the reach of Winmill – essentially confining it to cases where the proposed civil claim involves the Crown or the police, who are, of course, intimately involved in the criminal prosecution. Mr. Kulyk’s case did not fall into that category. His proposed defamation suit had nothing to do with the police or the Crown.
[57] In dismissing Mr. Kulyk’s action as out-of-time, Myers J. held, at para. 56: The plaintiff's reliance on his financial circumstances, his sense of his own psychological state, or his singular devotion to the criminal charges cannot change this analysis. Neither does his desire to know if the criminal verdict will amount to a defence in the civil claim. All are subjective and evaluative concerns. All reflect priority determinations made by the plaintiff in his mental calculus of deciding whether to sue on his known cause of action. Civil proceedings are about money. The decision to sue always involves a cost-benefit analysis. Civil proceedings are expensive and stressful without doubt. A plaintiff who has other needs and uses for funds or who weighs the risks to his or her psychological health and determines that the cost in terms of disrupted wellbeing is greater than the benefit of litigating, makes a sensible, adult decision.
[58] In my view, Justice Myers’ interpretation of Sosnowski and Winmill is correct. Sosnowski did not overturn Winmill, but it certainly did limit its applicability to very narrow circumstances – specifically where the proposed tort claim is against the Crown or the police and where there are outstanding, related criminal charges.
[59] Sosnowski is binding authority on this court. I find that it expresses the following as applicable principles:
(a) The term “appropriate”, as used in s. 5(1)(a)(iv) means where it is “legally appropriate” to bring an action. It does not include an evaluation of whether a civil proceeding will succeed; (b) The determination of when a proceeding is legally appropriate is heavily fact-specific. It depends on the specific factual and statutory setting of each case; (c) Two circumstances most often delay the date by which a civil claim becomes legally appropriate. They are: (i) Where the plaintiff relied on the defendant’s superior knowledge and expertise, especially where the defendant took steps to ameliorate the loss. This was the case in Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325 where the defendant accountant filed the plaintiff’s corporate tax returns late, resulting in a denial of tax credits by the Canada Revenue Agency. The Court of Appeal concluded that it was not appropriate to commence a claim against the accountant until after his efforts at amelioration ran their course. It was similarly the case in Brown v. Baum, 2015 ONCA 325, where the Court of Appeal held that it would not be legally appropriate for a patient to sue a doctor for professional negligence where he was still treating the plaintiff and attempting to correct his error; and, (ii) Where there is an alternative dispute resolution process that offers an adequate remedy and it has not yet been completed. This was the case, for instance, in 407 ETR where the Court of Appeal held that it was appropriate for the 407 ETR to delay commencing a civil claim to recover unpaid toll fees while the alternative collection process of a denial of a license plate renewal (which was usually a successful means of collection) ran its course. As Laskin J. A. held, at para. 40, “ If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used.” See also Presidential MSH.
[60] There is no assertion here that Mr. Williams in any way relied on the expertise of the defendants for any reason. There is an assertion, however, that Mr. Williams relied on an alternate dispute resolution process to adequately remediate his losses.
[61] The rationale for this approach to discoverability is, of course, the desire to avoid unnecessary proceedings. See 407 ETR at para. 48. A similar rationale appears to have supported the Court of Appeal’s decision in Winmill. The state of the caselaw, however, reflects a tension between the goal of avoiding the commencement of unnecessary proceedings and the goal of avoiding the introduction of an element of uncertainty into the law of the limitation of actions.
[62] In the case at bar, the issue is whether an ongoing criminal investigation being conducted by the police is the type of process that has the potential to adequately resolve the dispute between the parties and eliminate Mr. Williams’ loss. I find that it is not. In my view, there are no circumstances present here that are capable of suspending the running of the limitations period. In other words, in my view, it is plain and obvious that Mr. Williams’ claim against the defendants was discovered by the end of July 2019 at the latest.
[63] The circumstances here obviously do not fall within the narrow set of circumstances covered by Winmill. In other words, this is not a case where the civil suit concerns the appropriateness of the conduct of the Crown or the police – parties intimately involved in related criminal proceedings.
[64] The assertion here is that there was an alternate dispute resolution process that offered an adequate remedy. The adequate remedy was, Mr. Williams says, the prospect of a restitution order.
[65] There are at least three fundamental flaws in Mr. Williams’ argument, however.
[66] The first, and most significant, is that a criminal proceeding was never initiated, save for Mr. Williams’ very brief private prosecution. In the absence of a criminal proceeding, there was no prospect of a restitution order and, thus, no alternative route to an adequate remedy.
[67] Second, a criminal investigation has no defined date of completion. It could go on for years, or, in some cases, for decades. It could lead to charges against some, all or none of the named defendants. That level of uncertainty is exactly what the Court of Appeal’s decision in Markel sought to avoid.
[68] Third, the purpose of Mr. Williams’ tort action is to recover damages from the defendants so as to eliminate his financial loss. The purpose of a criminal proceeding is quite different. Criminal proceedings are not about making a victim whole. They are about determining whether an accused person has committed a criminal offence. And if so, what punishment is appropriate.
[69] I accept that a restitution order is a discretionary ancillary order that may be imposed as part of a just and fit sentence. That said, the prospect that a criminal proceeding might someday be instituted against one or more of the named defendants and that a restitution order might someday be made in some amount against one or more of the named defendants does not constitute an “alternate dispute resolution process that offered an adequate remedy” to eliminate Mr. Williams’ losses. It was not the type of alternate process capable of delaying the commencement of the limitation period.
[70] Echoing the language of Myers J. in Kulyk, I find that Mr. Williams’ devotion to the criminal investigation reflected a priority determination made by him in reaching a decision about whether to sue on his known cause of action. It was clearly legally appropriate for him to commence his civil action at the time he had knowledge of the material facts upon which a plausible inference of liability on the defendants’ part could be drawn (i.e by the end of July 2019). His priority, however, was to see the defendants prosecuted and punished.
[71] Because Mr Williams’ position on the “appropriate means” branch of the discovery test is not capable of extending the limitation period, I find there is no dispute about the material facts relating to the discovery of his claim.
[72] It is, in my view, plain and obvious in the circumstances, that the limitation period expired, at the latest, by the end of January 2022. The plaintiff’s claim was not started until April 2023 – significantly out of time.
[73] The plaintiff’s claim is therefore dismissed on the basis that it is statute-barred by the Limitations Act, 2002.
Costs
[74] The parties made brief submissions on the issue of costs.
[75] It is well-settled that, following a consideration of the factors listed in r. 57.01, the court should impose a costs order that reflects the overarching principles of fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 246 D.L.R. (4th) 440 (C.A.). In the context of determining what is fair, reasonable and proportionate, due consideration must be given to the reasonable expectations of the parties. See Neubuerger v. York, 2016 ONCA 303 at para. 17.
[76] The usual convention is that costs are ordered payable to the successful party on a partial indemnity scale. There is no reason to depart from that convention in this instance. The defendants were successful on the motion and they shall have their partial indemnity costs.
[77] Though neither party filed a Costs Outline, the defendant’s counsel submitted that her clients’ partial indemnity costs were in the range of $7,000 to $10,000. These compare to the plaintiff’s stated partial indemnity costs of roughly $15,500.
[78] This was a motion of some legal complexity. No evidence was filed, as none was permitted. There were no cross-examinations, nor have there been discoveries in the action. The defendants were required to file a statement of defence and to prepare and file a detailed factum on the motion.
[79] In my view, a fair, reasonable and proportionate costs award, including fees, disbursements and HST, is $9,000. These costs shall be payable by the plaintiff within 30 days.
C. Boswell J. Date: September 29, 2023