Superior Court of Justice - Ontario
COURT FILE NO.: CV-10-00395662-0000
DATE: 20230131
RE: HELEN FRANCES, Plaintiff
AND:
TTC INSURANCE COMPANY, TORONTO TRANSIT COMMISSION, PAUL MANHERZ, PETER ASHBOURNE, JULIE STAFFORD, JOHN DOE, FARUK HATIA and THE TORONTO POLICE SERVICES BOARD, Defendants
BEFORE: VERMETTE J.
COUNSEL: Adam Romain, for the Plaintiff Chad Townsend, for the Defendants TTC Insurance Company, Toronto Transit Commission, Paul Manherz, Peter Ashbourne, Julie Stafford and Faruk Hatia
HEARD: July 25, 2022, with supplementary written submissions delivered on August 2, 2022
ENDORSEMENT
[1] The defendants TTC Insurance Company (“TTCIC”), Toronto Transit Commission (“TTC”), Paul Manherz, Peter Ashbourne, Julie Stafford and Faruk Hatia (“Defendants”)[^1] appeal from the Order of Master Wiebe (now Associate Justice Wiebe) dated August 16, 2021 and his cost decision dated November 25, 2021 (“Costs Decision”).
[2] The Defendants have not demonstrated any error reviewable on appeal. Accordingly, the appeal is dismissed and leave to appeal the Costs Decision is denied.
A. FACTUAL BACKGROUND
1. The action
[3] The Plaintiff alleges that she sustained a knee injury on a TTC bus on December 18, 2005 as a result of the bus jerking. Mr. Hatia was the operator of the bus. On March 16 and 20, 2006, the Plaintiff, through her lawyer, filed a claim with the TTC and made an application for accident benefits from TTCIC. The file was assigned for investigation to Mr. Ashbourne, a TTC claims adjuster. Mr. Ashbourne examined the Plaintiff under oath. She identified a passenger on the bus as a witness. Mr. Ashbourne subsequently interviewed the witness in question, Ms. Jelyn Pinor. Ms. Pinor said that the Plaintiff had fallen outside of the bus. She also said that the Plaintiff had told her that she was going to sue the TTC and would give her half of the money that she would get.
[4] Mr. Ashbourne also obtained information from Mr. Hatia. Mr. Hatia advised Mr. Ashbourne that he did not recall anyone getting injured on his bus on the relevant day, but he recalled a woman getting hurt outside of the bus, stumbling as she stepped from the sidewalk.
[5] Ms. Stafford was the TTC accident benefits adjuster assigned to this file. After receiving information from Mr. Ashbourne regarding his investigation, she denied all benefits on the basis that the Plaintiff was not an insured person under the TTCIC’s policy as she had not been injured as a result of the use or operation of a TTC bus.
[6] The TTC’s claims department referred the file to the TTC’s special constables to consider whether to lay charges against the Plaintiff. The primary special constable involved in laying charges was Mr. Manherz. Charges of criminal fraud were laid against the Plaintiff on April 4, 2007. However, the charges were ultimately withdrawn by the Crown on January 25, 2008.
[7] On March 18, 2008, the TTC sued the Plaintiff for damages in the amount of $50,000 due to alleged fraudulent misrepresentation concerning her application for accident benefits (“TTC Action”).
[8] On January 25, 2010, the Plaintiff commenced this action, suing the Defendants for more than $7 million in damages, including unpaid accident benefits, damages for bad faith in the adjustment of her accident benefits, tort damages for personal injuries arising from the accident, and damages for malicious prosecution and negligent investigation. The parties agreed to allow the TTC Action to lapse and have the TTC assert its claim as a counterclaim in this action. In their counterclaim, the Defendants seek higher damages – $150,000 – than the TTC did in its initial action.
2. Discovery
[9] The Plaintiff served her affidavit of documents on August 1, 2012.
[10] The examination for discovery of Mr. Hatia was conducted on December 17, 2012, despite the fact that the Defendants had yet to serve an affidavit of documents. However, the TTC had previously served an affidavit of documents in the TTC Action. The Defendants served their affidavit of documents in this action on June 18, 2013.
[11] Mr. Ashbourne was examined for discovery on October 1 and 2, 2013.
[12] On November 13, 2015, Master Abrams (as her title then was) released her decision on a discovery motion brought by the Plaintiff. She ordered each of the Defendants to serve a sworn affidavit of documents with particularized Schedules “B” and “C” by December 11, 2015. She also ordered that all outstanding undertakings be answered by January 15, 2016. A number of the outstanding undertakings were for the production of documents. Finally, she ordered Mr. Ashbourne to reattend to complete his examination for discovery for up to another 1.5 hours. She noted that there was an “agreement that more than 7 hours total is appropriate”.
[13] The Defendants produced additional documents in August 2016 and provided the answers to undertakings given by Mr. Hatia and Mr. Ashbourne in October 2016, i.e. many months after the deadline imposed by Master Abrams.
[14] The examination for discovery of Mr. Ashbourne resumed on October 21, 2019 and was terminated later that day. Mr. Anthony Cerqueira, the representative of TTC and TTCIC, was also examined for discovery on October 21, 2019. The examination for discovery of Mr. Manherz took place the following day, on October 22, 2019, but it was terminated as he had to go to an appointment. While Ms. Stafford was also supposed to be examined for discovery on October 22, 2019, she was not as she was ill.
3. The motion
[15] The Plaintiff brought a motion in late February 2020. The motion requested two sets of orders:
a. an order for a new timetable and extending the deadline to set down the action for trial (“Schedule Issues”); and
b. orders regarding: (i) undertakings and refusals given at the examinations for discovery of TTCIC, TTC, Paul Manherz and Peter Ashbourne, (ii) the attendance of these Defendants and Julie Stafford at further examinations for discovery, and (iii) the time limits of those attendances (“Discovery Issues”).
[16] On July 2, 2020, the Associate Judge bifurcated the motion between the two sets of issues.
a. Motion regarding the Schedule Issues
[17] The Associate Judge heard the motion regarding the Schedule Issues on September 17, 2020. He released reasons on October 24, 2020 (2020 ONSC 6495). The Defendants did not appeal from this decision.
[18] The Associate Judge found that counsel for the Plaintiff had not given an acceptable explanation for a number of major instances of delay by the Plaintiff. However, he held, based on appellate authority, that the inadequacies of the Plaintiff’s explanation for her delays were negated by the fact that the Defendants had brought a counterclaim. He concluded that it would not be fair to dismiss the Plaintiff’s claim and leave her exposed to liability on the counterclaim in relation to the same issues that were in her claim. The Associate Judge made the following comments regarding the Defendants’ response to the Plaintiff’s argument based on the counterclaim:
[47] Mr. Styler responded to this point by arguing in his factum and orally that the TTC Defendants were really nothing but “defendants” in this litigation. He argued that the TTC Defendants never actively pursued their counterclaim. He said that his clients never proposed any of the timetables and never took steps to avoid dismissal orders. He even went so far as to propose a dismissal of the counterclaim along with a dismissal of the Frances claim. In the factum, he stated the following in paragraph 38: “The TTC Defendants do not disagree and would not take issue with its counterclaim being dismissed along with the Plaintiff’s claim.”
[48] I find this position lacking in credibility and unfair. The TTC Defendants were the ones who commenced the criminal and civil proceedings that predated this action and that led to this action. The TTC civil proceeding was in effect joined to this action by way of the counterclaim (with a higher damage claim) when this action commenced in 2010. It is fair to say that Ms. Frances’ claim of malicious prosecution stems from these earlier TTC initiated proceedings. I was not made aware of any evidence that the TTC Defendants at any time in the over ten years of this action contemplated or proposed abandoning their counterclaim. Most importantly, Mr. Styler’s statement does not come from any evidence from his clients. Therefore, I do not accept that this is the position of the TTC Defendants. Also, to now suddenly suggest in a responding factum that the counterclaim be dismissed with the claim to bolster the position of the TTC Defendants on this motion, is self-serving and unfair and not to be countenanced. I do not accept that position.
[19] The Associate Judge also found that the Plaintiff had met her onus of showing that the Defendants would not suffer non-compensable prejudice on account of her actions or inactions if the action continued. Accordingly, he established a new timetable – the sixth court-ordered timetable – and he extended the deadline to set down the action for trial to October 31, 2021.
b. Motion regarding the Discovery Issues
[20] The Associate Judge heard the Plaintiff’s motion on the Discovery Issues over five days: April 8 and 15, June 2-3, and July 16, 2021. In his reasons dated August 16, 2021 (2021 ONSC 5561), he described as follows the process that he followed to rule on the disputed undertakings and refusals:
[6] On April 9, 2021, I instituted a process whereby each undertaking and refusal in issue was argued by both sides (Ms. Frances and the TTC Defendants) and I gave oral rulings and reasons on the spot that were recorded. I followed that process on April 9, April 15, June 2 and June 3, 2021. Therefore, I will deal with the undertakings and refusals in issue in this decision only to the extent of reiterating the rulings.
[21] The motion started with 213 questions, but, ultimately, the Associate Judge ruled on 166 individual undertakings and refusals. The following table summarizes the Associate Judge’s rulings on undertakings and refusals based on the number of questions set out in his reasons:[^2]
| Mr. Manherz | Mr. Ashbourne | Mr. Cerqueira | |
|---|---|---|---|
| Undertakings ordered to be complied with | 2 | 11 | 15 |
| Undertakings found to have been adequately answered | 1 | 2 | 3 |
| Refusals ordered to be answered | 18 | 34 | 28 |
| Refusals found to have been answered | 4 | 4 | 6 |
| Refusals found to be proper | 3 | 2 | 1 |
[22] The Associate Judge then turned to the issue of the time to be allotted to the remaining discoveries of the Defendants. He stated the following:
[15] Concerning the discovery time issue, Mr. Romain argued that the time limits going forward should be as follows: Ms. Stafford: 7 hours; Mr. Manherz: 7 hours; Mr. Ashbourne: 5 hours; and Mr. Cerqueira: 7 hours. This amounts to a total of 26 hours of additional discovery. Mr. Townsend argued that the time limits going forward should be as follows: Ms. Stafford: 3 hours; Mr. Manherz: 1 hour: Mr. Ashbourne: 0 hours; Mr. Cerqueira: 0 hours. This amounts to a total of 4 hours.
[16] The governing rule is Rule 31.05.1(1). Under this rule each party is limited to no more than seven hours to examine the other parties, except with consent of the parties and leave of the court. Rule 31.05.1(2) specifies what factors the court should consider in granting leave.
[17] In this case, the effect of Rule 31.05.1(1) would be to limit Ms. Frances to no more than seven hours to examine all seven named defendants. The parties some time ago accepted that this was inadequate. This acceptance was noted by Master Abrams in her November 13, 2015 endorsement.
[18] Mr. Romain stated that some 20 to 21 hours have already been spent by Ms. Frances on discovering the defendants. The court reporter produced an email on March 9, 202 [sic]. This email broke the time down as follows: Mr. Hatia was examined on December 17, 2012 for 4 hours and 10 minutes; Mr. Ashbourne was discovered on October 1, 2013 for 5 hours and 30 minutes; Mr. Ashbourne was discovered on October 2, 2013 for 3 hours and 10 minutes; Mr. Ashbourne was discovered on October 21, 2019 for 2 hours and 14 minutes; Mr. Cerqueira was discovered on October 21, 2019 for 3 hours and 23 minutes; Mr. Manherz was discovered on October 22, 2019 for 2 hours and 54 minutes. The [Toronto Police Services Board] has not been discovered. This produces a total of 20 hours and 27 minutes of spent discovery time.
[19] There was an argument as to whether the parties had agreed in 2013 at the time of the first Ashbourne discovery in October, 2013 to an allotment of 7 hours per defendant. There has been no formal agreed upon discovery plan. […] Therefore, I am not prepared to find that the parties reached a formal agreement as to a 7 hour per defendant time limit or as to any time limit on the discovery of the TTC Defendants.
[20] Therefore, I will determine whether and how the leave of the court should be applied. The factors outlined in Rule 51.05.1(2) [sic] must be considered. Applying those factors, I have decided to accept Mr. Romain’s proposed schedule. Here are my reasons:
• Complexity: The issues in this case have complexity. While the events of the alleged accident on the bus on December 18, 2005 and the alleged fraud by Ms. Frances are straight forward, the complexity arises with the subsequent investigation and prosecution of Ms. Frances by the TTC defendants. Those events span a period of five years. In addition to the alleged fraud by Ms. Frances that started this case, there are now several other causes of action in issue, namely the alleged unpaid accident benefits, the tort claim against the TTC Defendants, the alleged negligent and fraudulent investigation by the TTC Defendants, and the malicious prosecution by the TTC Defendants.
What now further complicates this matter is the sudden and peculiar TTC loss of interest in pursuing its claim against Ms. Frances, the very claim that started this case. Mr. Townsend admitted this fact during this motion, stating that his clients would not be setting this action down for trial despite having completed Ms. Frances’ discovery. This raises questions as to the basis for the TTC Defendants actions against Ms. Frances in the first place.
• Conduct: The conduct of the TTC defendants is a significant factor. The volume of the refusals that were given by Messrs. Manherz, Ashbourne and Cerqueira during their initial round of discovery and that have now been either answered or ordered answered makes another significant round of discovery of each of them necessary. The initial round of discovery of these defendants appears to have been to a significant extent an exercise in posing relevant questions that were not answered. When the answers are finally given, Ms. Frances should have the opportunity to explore these answers with follow-up questions.
The same point applies to all the undertakings, as there were many undertakings that were given by these defendants and that were then not adequately answered, as noted above. I also note that there have been several affidavits of documents from the TTC defendants. There was one in 2015, others in 2016, and another two this year during the pendency of this motion. This staggered and delayed production only adds to the need for a fulsome further discovery. Proper documentary production prior to discovery is required to make the discovery process meaningful; see Davies v. Corporation of the Municipality of Clarington, 2010 ONSC 6103 at paragraph 13.
• Tine needed: The conduct of the TTC Defendants also gives an insight as to how much time is reasonably required for the discovery of those defendants. Although I have found no agreement between the parties on this issue, I am satisfied that in October, 2013 the TTC Defendants were prepared to accept limits of seven hours for each of them. Mr. Townsend argued that Ms. Ferreira [former counsel for the Defendants] did not understand Rule 31.05.1 when she made her statement on the record at the Ashbourne discovery on October 2, 2013. I do not accept that argument. There was no evidence in the motion from Ms. Ferreira other than what appears on the transcript. By October 2, 2013 Rule 31.05.1 had been in effect for three years.
The transcript indicates to me that, at the time Ms. Ferreira made her statement, the discovery of Mr. Ashbourne had already exceeded the seven hour limit and that Ms. Ferreira was trying to implement the seven hour limit in relation to Mr. Ashbourne only having accepted a seven hour limit for each of Mr. Manherz, Mr. Cerqueira and Ms. Stafford. She made this statement despite Mr. Romain not having asked for that amount of time. In his draft discovery plan of September 27, 2013, Mr. Romain specified from 3 to 4 hours for each of these defendants. This all happened at a time when this case was not as contentious as it is now and did not have as many documents, undertakings and refusals that it has now. In my view, it reflected a fair assessment by counsel of what time was really needed. I note that when the parties resumed the discoveries of the defendants in October, 2019 they conducted themselves in accordance with Ms. Ferreira’s plan by proceeding with the discoveries of Messrs. Cerqueira and Manherz without an issue of time limit.
• Fairness: There is an imbalance to Rule 31.05.1(1) in a case such as this where there is one plaintiff and several defendants. This was noted by Justice Glustein in Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (ONSC) at paragraph 53. The rule gives each of the seven named defendants a right to examine Ms. Frances for seven hours. This is a total of 49 hours, while Ms. Frances is limited to only 7 hours for all the defendants.
To correct this imbalance the limits stated by Ms. Ferreira on October 2, 2013 make sense. At seven hours per defendant the total discovery time for all the defendants would be the same 49 hours. I note that Ms. Frances has used just over 20 hours to date. That leaves a remainder of 29 hours, and Ms. Frances is only asking for a total of another 26 hours with the TTC Defendants. She does not ask for time with the [Toronto Police Services Board]. This seems reasonable and fair, particularly given the issues, complexity and amount at stake.
• Abrams limit: I note that Master Abrams was asked on November 13, 2015 to grant Ms. Frances an additional seven hours with Mr. Ashbourne, and that Ms. Frances obtained only 1.5 hours. However, I note that Mr. Ashbourne had given a minimal number of refusals and only 14 undertakings in his discovery to that point. However, when Mr. Ashbourne’s discovery resumed on October 21, 2019 the discovery took on a very different tone. There was suddenly a river of refusals from Mr. Ashbourne, namely 57 over a period of 2 hours and 14 minutes. In my view, this rendered Master Abrams’ limit meaningless and unfair.
[21] Mr. Townsend argued for his schedule. He asserted that Mr. Romain was not properly prepared for his discoveries of the TTC Defendants. I saw no evidence of that based on my review of the transcripts, particularly given the many undertakings, groundless refusals and the incomplete production of the TTC Defendants. Mr Townsend criticized Mr. Romain for cancelling the discovery in 2019. That happened because of a health issue and I place no weight on that point. Mr. Townsend argued that his interventions were reasonable and necessary to deal with irrelevant questions. I disagree. Based on my review of the transcripts and my determination of the merits of the many refusals Mr. Townsend counselled, I believe that his interventions were largely not reasonable.
[22] I, therefore, rule that Ms. Frances is entitled to further discoveries of the following defendants with the following time limits:
• Paul Manherz: 7 hours
• Peter Ashbourne: 5 hours
• Anthony Cerqueira: 7 hours
• Julie Stafford: 7 hours
[23] The Associate Judge then discussed the issue of whether the Defendants who had been discovered were to reattend at their own expense to complete their discoveries. He found as follows:
[24] This request engages Rule 34.15(1)(a) which states amongst other things that where a party refuses to answer proper questions or refuses to produce documents he or she is required to produce, the court can order that person to reattend to be examined at his or her own expense. That rule would certainly apply to Messrs. Manherz, Ashbourne and Cerqueira given the huge number of refusals they gave that have now been either answered or ordered to be answered. The number of their undertakings that were inadequately answered bolsters this conclusion.
[25] What gave me pause is the absence of a discovery plane [sic] and the dispute the parties had over the time limits in Rule 31.05.1. This dispute led to the termination of the Ashbourne discovery. Mr. Romain could have moved for an order for a discovery plan to put this issue to rest. He never did.
[26] However, I have decided that this issue does not merit resiling from the implementation of Rule 34.15(1)(a) as quoted above. As stated earlier, by their conduct, the parties deviated from the limits imposed by Rule 31.05.1 as early as the Ashbourne discovery on October 1 and 2, 2013. Mr. Ashbourne’s discovery at that time exceeded the global seven hour time limit for discovering the defendants. Ms. Ferreira’s statement on the record was, as I have stated, evidence of a fair assessment of what time was really needed. When the parties resumed the discoveries of the TTC Defendants in October, 2019, they continued despite the absence of a discovery plan or an agreement on time limits. They essentially acted in accordance with Ms. Ferreira’s plan. The Manherz discovery started and was ended by Mr. Manherz himself without objection due to a daycare appointment. The Cerqueira discovery was completed. The time limit issue was confined to the Ashbourne discovery, and I have already ruled that that discovery was hampered by the conduct of Mr. Ashbourne.
[27] As a result, due primarily to their large number of refusals that have now been answered or ordered to be answered, I rule that Messrs. Manherz, Ashbourne and Cerqueira must attend to complete their discoveries at their own expense.
4. Costs Decision
[24] On November 25, 2021, the Associate Judge released his Costs Decision. The Plaintiff was seeking costs in the amount of $228,395.58 on a substantial indemnity basis. Her costs outline reflected partial indemnity costs in the amount of $186,017.47. The Defendants argued that there should be no order as to costs. Ultimately, the Associate Judge awarded costs to the Plaintiff in the amount of $100,000 on a partial indemnity basis.
[25] The Associate Judge concluded that Ms. Frances was entitled to costs:
[5] I am satisfied that Ms. Frances is the successful party on this motion and is entitled to an award of costs. Concerning the 166 undertakings and refusals that were argued and based on my reasons for decision, I count that only 42 questions did not require an order against the TTC Defendants. This is a proportion of 25%.
[6] But I note that the vast majority of these TTC “successes” involved questions these defendants answered during this motion. This hardly represents a successful result for the TTC Defendants. On the issue of the time limits for discovery and the costs of the future discoveries of the TTC Defendants, Ms. Frances was entirely successful.
[7] I order that Ms. Frances be awarded the costs of this motion. There will be some reduction due to the limited successes of the TTC Defendants.
[26] After reviewing the particular aspects of the conduct of the Defendants that the Plaintiff was relying upon in support of her claim for costs on a substantial indemnity basis, the Associate Judge held that he was not prepared to find that the Defendants should be punished with an award of substantial indemnity costs. He stated the following:
[10] In the leading decision on this point in Davies v. The Corporation of the Municipality of Clarington, (2009) 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.) the Court of Appeal held in paragraph 46 that conduct attracting the sanction of substantial indemnity costs must be in the nature of an abuse of process, “harassment . . . by the pursuit of fruitless litigation.” I was tempted to find that the TTC Defendants engaged in such conduct, particularly after Mr. Townsend stated that his clients were not interested in pursuing the counterclaim. It struck me that the TTC Defendants could be sanctioned for having caused this entire proceeding with an allegation of fraud that now they do not want to prove leaving them doing nothing more than defending Ms. Frances’ claim.
[11] However, I am not prepared do so. The counterclaim remains alive and there may be a finding of fraud in the end. Furthermore, Ms. Frances is claiming substantial amounts in damages, and the TTC Defendants are entitled to test her case to the letter. Also, I note that many of the issues covered by the disputed questions in this motion concerned the nature and scope of the investigations conducted by the TTC Defendants. The boundaries of relevance may not be as clear in such a case, such as the question of options not taken, considerations not made, angles not pursued, and evidence not obtained. For these reasons, I am not prepared the [sic] sanction the TTC Defendants.
[27] With respect to quantum and the reasonable expectation of the unsuccessful party, the Associate Judge found that the time put into the motion by counsel for the Plaintiff was unreasonable and disproportionate to what the motion required. He stated the following with respect to the Defendants’ costs outline:
[18] In determining what is “fair and reasonable for the unsuccessful party to pay” I usually put weight on the unsuccessful party’s costs outline. This document usually reflects what the unsuccessful party expects to recover in the event of success, and, therefore, gages what that party should reasonably expect to pay in the event of a loss.
[19] In this case, however, I cannot do that. After the argument, on July 8, 2021, Mr. Townsend uploaded a costs outline that showed a total of only $14,690. This document has no credibility. It shows the time spent by Mr. Townsend’s associate, Daniel Styler, as being only 10 hours. The 10 hours is stated to be about drafting the factum and responding affidavit. Mr. Styler swore a 42 page affidavit and two supplementary affidavits. The factum was 29 pages long. The preparation of these two documents would clearly have been much greater than 10 hours. There is nothing in the costs outline for the time Mr. Styler no doubt spent assisting Mr. Townsend in preparing the undertakings and refusals chart. There is nothing for the time spent by Mr. Styler at the argument. I noted Mr. Styler’s presence on each day of the 4.5 days, 28 hours, of the argument.
[20] The costs outline shows no more than 45 hours spent by Mr. Townsend on this motion. Taking away the 28 hours Mr. Townsend spent in arguing the motion leaves only 17 hours for Mr. Townsend in preparing the factum, affidavits, undertakings and refusals chart and the argument, plus the time spent on correspondences during the motion addressing the issues raised. That is not credible. 45 hours clearly does not reflect the actual time spent by Mr. Townsend on this motion. In the end, I find this document to be self-serving. It was submitted at a time when it was clear that the TTC Defendants were unsuccessful on this motion and was in my view intended to minimize their costs liability.
[28] The Associate Judge reviewed the decision of Master Sproat in Currie v. Symcor Inc., 2007 35150 (Ont. S.C.J.) and took guidance from it to arrive at an award of partial indemnity costs in the amount of $100,000 in this case. He found that this was an amount that the Defendants could reasonably have expected to pay the Plaintiff in partial indemnity costs in the event of a loss. The Associate Judge stated the following:
[25] What Master Sprout [sic] stated about the reasonable expectation of the defendants in that case could be said of the TTC Defendants in this motion. These defendants represent a large, sophisticated public body that is fully aware of the costs of litigation. Access to justice is not an issue for them; but it is for Ms. Frances. While I find that many of her costs are excessive, it is not fair to saddle her with all the costs she has had to spend pursuing the refusals and undertakings.
[29] With respect to the importance of the motion, the Associate Judge noted the importance of the motion for the Plaintiff given that she had been accused of fraud and was suing for a substantial amount of money. He pointed out that the motion concerned questions that delved into the details of the investigations and decisions of the Defendants in pursuing her. He expressed the view that the importance of the motion for the Plaintiff “has only been heightened by the admission by Mr. Townsend that the TTC Defendants are no longer interested in pursuing their fraud allegations against Ms. Frances, an admission that raises serious concerns as to the merits of those allegations.”
B. DISCUSSION
1. Standard of appellate review
[30] The standards of appellate review that apply to judges’ decisions also apply to associate judges’ decisions: see Zeitoun v. The Economical Insurance Group, 2019 ONCA 415 at para. 1. Thus, as set out in Housen v. Nikolaisen, 2002 SCC 33, the standard of correctness applies to questions of law and the standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless an error of law can be extricated from the mixed question of fact and law, in which case the standard of correctness applies.
[31] Questions of law are questions about what the correct legal test is, and questions of mixed fact and law involve applying a legal standard to a set of facts: see Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 49 (“Sattva”). Legal errors include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: see Sattva at para. 53.
[32] The standard of palpable and overriding error was described as follows by the Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92 at para. 35:
A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”
[33] The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made: see Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38 and Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33.
[34] While the failure to consider relevant evidence can amount to a palpable and overriding error if the evidence was potentially significant to a material finding of fact, the mere absence of any reference to evidence in reasons for judgment does not establish that the judge failed to consider that evidence. The appellants must point to something in the record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence. See Waxman v. Waxman, 2004 39040 at para. 343 (Ont. C.A.).
[35] Thus, an appeal from an associate judge’s decision is not a rehearing. On questions of fact and mixed fact and law, deference applies, and the role of the reviewing court is limited. An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the associate judge. See Prescott v. Barbon, 2018 ONCA 504 at para. 11.
2. Relevant Rules
[36] Rule 31.05.1 of the Rules of Civil Procedure deals with time limits applicable to examinations for discovery. It provides as follows:
Time Limit Not to Exceed Seven Hours
31.05.1 (1) No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court.
Considerations for Leave
(2) In determining whether leave should be granted under subrule (1), the court shall consider,
(a) the amount of money in issue;
(b) the complexity of the issues of fact or law;
(c) the amount of time that ought reasonably to be required in the action for oral examinations;
(d) the financial position of each party;
(e) the conduct of any party, including a party’s unresponsiveness in any examinations for discovery held previously in the action, such as failure to answer questions on grounds other than privilege or the questions being obviously irrelevant, failure to provide complete answers to questions, or providing answers that are evasive, irrelevant, unresponsive or unduly lengthy;
(f) a party’s denial or refusal to admit anything that should have been admitted; and
(g) any other reason that should be considered in the interest of justice.
[37] Rule 34.15(1)(a) states that where an objection to a question asked during an examination is held to be improper, the court may order the person being examined to reattend at their own expense and answer the question and any proper questions arising from the answer. Under Rule 34.15(1)(d), the court may also make “such other order as is just” where a person refuses to answer any proper question or to produce a document or thing that they are required to produce.
3. Errors alleged by the Defendants
[38] The Defendants argue that the Associate Judge erred as follows with respect to the time limits granted for the examinations for discovery of the Defendants:
a. In criticizing the Defendants in relation to their counterclaim (i.e. that they should not have been willing to allow the counterclaim to be dismissed with the main action and they should set the counterclaim down for trial themselves) and in inferring that the Defendants’ position with respect to this issue meant that they were advancing a meritless counterclaim. The Defendants submit that “a clear consideration and driving factor of Associate Justice Wiebe’s decision was his unwarranted conclusion that the TTC Defendants were not of the view that their counterclaim had merit.”
b. In failing to take into consideration “uncontroverted details of the schedule the parties had agreed to for the discoveries wherein after nine years of litigation the parties had turned their mind to how long the discovery should be and decided on a length of approximately three hours per deponent.”
c. In applying the test set out in Rule 31.05.1(2) in that he failed to take into account relevant uncontroverted facts and went outside the evidence and took into account irrelevant details. Among other things, the Defendants allege the following errors:
i. With respect to the factor of complexity, the conclusion that there was a “sudden and peculiar TTC loss of interest in pursuing its claim against Mrs. Frances” was in error. According to the Defendants, there is no case supporting the drawing of conclusions about the degree of interest shown by a party when considering this factor.
ii. With respect to the factor of conduct, the Associate Judge’s conclusion that there was “staggered and delayed production” is not in line with the evidence and with the Associate Justice’s own findings.
iii. With respect to the factor of time needed, the Defendants state the following:
Time Needed: The analysis under this heading relies primarily on one statement made at discovery in 2013 and seems to have overlooked the uncontroverted evidence of the parties that going into the 2019 discoveries the plan was to have approximately three hours of discovery per deponent. The statement that the parties conducted themselves at the 2019 discoveries “without an issue of time limit” is clearly a palpable and overriding error as there is no evidence to support the proposition and all of the evidence contradicts this assertion. The evidence in the correspondence set out in the TTC Defendants’ affidavit on the motion and the filed transcripts clearly indicates that the TTC Defendants were quite concerned about time limits and had allocated approximately three hours per deponent.
iv. With respect to the factor of fairness, the Defendants submit that the Associate Judge “undertook a problematic mathematical approach to the application of fairness, and misstated the actual discovery rights of the Defendants vis-à-vis the Plaintiff.” The Defendants submit that this “theoretical consideration of fairness” should not have trumped the individual considerations of fairness, among other things, the time already spent discovering the Defendants.
[39] In addition, the Defendants submit that the Associate Judge made a clear and palpable error in ordering that hypothetical questions asked of Mr. Cerqueira be answered. The Defendants’ position is that the Associate Judge erred in concluding that Mr. Cerqueira’s position as a representative of the TTC and TTCIC made hypothetical questions relevant even though he was not involved in any of the material aspects of the claim. They argue that hypothetical legal questions asked of a deponent with no first-hand involvement are bound to be useless.
[40] The Defendants further submit that the Associate Judge erred in ordering certain refusals of questions asked of Mr. Ashbourne to be answered. Their position is that these questions were asked in violation of a solicitor’s undertaking that Plaintiff’s counsel had provided to limit his questions to questions on the pleadings and on the witness statement provided by Ms. Pinor. They argue that the question of whether a solicitor’s undertaking was given was not addressed by the Associate Judge.
[41] At the hearing of the appeal, I ordered that the portion of the transcript of the proceeding before the Associate Judge (which the parties had) dealing with the issue of the solicitor’s undertaking be filed. I also gave the parties the opportunity to file additional submissions on this issue, in light of the transcript.
[42] The transcript reveals that the question of the alleged solicitor’s undertaking was raised before the Associate Judge. However, he refused to consider this issue as it was not included as a basis for Mr. Ashbourne’s refusals in the refusals chart. The ground that was relied upon by the Defendants in the chart was irrelevance, and the Associate Judge found that the questions were relevant. The Associate Judge stated that he was deciding the issues on the basis of the refusals chart, and he declined to make a finding on a different ground not set out in the chart. Thus, the Associate Judge did not ignore this argument and he dealt with it, although not on the merits.
[43] In their supplementary submissions, the Defendants complain that there was neither oral nor written analysis by the Associate Judge of the merits of the solicitor’s undertaking argument. They point out that the Associate Judge’s view was that there was no need for analysis as the argument was disposed of on the basis that it should have been set out in the refusals chart. They also point out that the Associate Judge did not address the solicitor’s undertaking argument at all when dealing with the issue of the time limits for the examinations for discovery of the Defendants. They conclude their supplementary submissions as follows:
The solicitor’s undertaking issue was important in respect of how much further time, if any, should be granted for the discovery of Peter Ashbourne but the lack of any analysis of this issue also has some relevance to whether the Associate Justice made appealable errors in his general rule 51.5.1(2) [sic] factors analysis as he does not refer to the TTC Defendants oral and written arguments on the various discussions about the timing for the discoveries and thus there is no rationale as to how it could be that parties conducted themselves in accordance with a plan to allow seven hours per deponent when this is contradicted by correspondence and transcripts demonstrating a plan for two to three hours of discovery per deponent.
[44] With respect to the Costs Decision, the Defendants submit the following:
a. “[I]t is an error in principle in a costs decision on an interlocutory motion to draw a conclusion that due to a party advising upon questioning that they do not intend to set a counterclaim down this means that the party must not be of the view that the counterclaim has merits and because of this there is such misconduct that it is close to the line where substantial indemnity costs should be awarded against the party.”
b. The Costs Decision does not address most of the Defendants arguments set out in their costs submissions. Most of the “ignored” arguments mentioned in the Defendants’ Factum relate to the excessive time spent by the Plaintiff’s counsel on the motion.
c. There is no mention of the fact that the motion had originally been booked for half a day by the Plaintiff and the Defendants should have some entitlement to an expectation that they would not be facing a four-day motion.
d. It is not the reasonable expectation of a party on a discovery-based interlocutory motion to expect this level of costs award in the event they were not successful.
e. The Associate Judge did not consider the cases submitted by the Defendants with respect to what a reasonable figure for such a motion would be.
f. The Associate Judge did not give adequate consideration to the success of the Defendants
4. Discussion of alleged errors with respect to the August 16, 2021 decision
a. Time limits
[45] The Associate Judge applied the correct legal test and considered the factors set out in Rule 31.05.1(2) of the Rule of Civil Procedure.
[46] In my view, the Defendants have failed to show that the Associate Judge made any palpable and overriding error in applying the legal test to the facts of this case. I discuss briefly below the errors alleged by the Defendants.
[47] Criticism regarding the counterclaim. The issue of the counterclaim is mentioned briefly in the Associate Judge’s discussion of the factor of the complexity of the issues of fact or law. While the Associate Judge may have been critical of the Defendants’ conduct regarding their counterclaim, this issue had no apparent or logical impact on the ultimate determination of the time limits. Any error with respect to this issue would not be overriding as it would not be in any way determinative of the outcome of the motion.
[48] Alleged failure to take into consideration the schedule that the parties had agreed to. The Associate Judge found that the parties did not reach a formal agreement as to any time limit regarding the discovery of the Defendants. This conclusion was open to him and is reasonably supported by evidence in the record. Among other things, counsel for the Defendants sent a letter on April 25, 2019 that contained the following statement:
These suggestions should not be construed as agreements with respect to the amount of time for the discovery. There has been no decision on the allocation of extra time other than the hour and a half more for Mr. Ashbourne and in the event that the matter has to be decided by a Master we will discuss what allocation of time (if any) should be made based on the criteria in 31.05.1(2).
[49] Counsel for the Defendants also stated the following in a letter dated October 23, 2019, which was sent after the last day of discovery: “I note that there is no agreement as to what amount of time in excess of seven hours should be allowed for your discovery of the Defendants.”
[50] The Defendants’ attempt to show some kind of implied agreement based on the number of days that were scheduled at different times for the examinations for discovery and the number of witnesses scheduled per day ignores the fact that these schedules were never respected by counsel. More importantly, this argument would require the Court to reweigh the evidence, which is not the role of an appellate court. The Associate Judge was aware of the various schedules discussed by the parties. He expressly referred to the fact that at some point counsel for the Plaintiff had requested from three to four hours for each of the Defendants. However, he concluded that “[t]his all happened at a time when this case was not as contentious as it is now and did not have as many documents, undertakings and refusals as it has now.” This conclusion was open to him based on the evidence.
[51] The Associate Judge’s comments that Ms. Ferreira was prepared to accept limits of seven hours for each Defendant and that the parties “conducted themselves in accordance with Ms. Ferreira’s plan” in October 2019 have to be read in light of the Associate Judge’s finding that there was no formal agreement regarding time limits. Even if I were to accept the Defendants’ argument that the Associate Judge erred when he stated that the parties proceeded with the discoveries of Mr. Cerqueira and Mr. Manherz in October 2019 “without an issue of time limit”, such an error would not be overriding, i.e. it is not an error that is determinative of the outcome of the motion. As noted above, the Associate Judge’s view was that the discussions regarding scheduling were overtaken by subsequent events, i.e. the case became more contentious, with more documents, undertakings and refusals.
[52] Staggered and delayed production. The Associate Judge’s comment on this point is supported by evidence in the record, including the fact that some of the undertakings and refusals in issue on the motion required the production of additional documents. The Defendants are asking this Court to reweigh the evidence, which is not the role of an appellate court. Further, and in any event, even if this comment was erroneous, the error would not be overriding. As stated by the Associate Judge, the volume of the refusals that were given by the Defendants during their initial round of discovery made another significant round of discovery of each of them necessary.
[53] Mathematical approach to fairness. The general discussion in the Associate Judge’s reasons about a total discovery time of 49 hours was not determinative of anything. Among other things, he did not grant the Plaintiff another 29 hours. Any error in this discussion was not central to the Associate Judge’s reasoning and not overriding.
[54] The crux of the Associate Judge’s reasoning was that as a result of a sudden “river of refusals” in 2019 and the improper and unreasonable positions taken by the Defendants, another significant round of discovery was necessary. These findings remain undisturbed and are supported on the evidence. Attacks on peripheral comments made by the Associate Judge in his reasons are futile as such comments are secondary and not determinative of the outcome of the motion. Such peripheral errors, if any, do not constitute overriding errors.
b. Hypothetical questions
[55] The Defendants argue that the Associate Judge erred in ordering certain refusals of questions asked of Mr. Cerqueira to be answered as these were hypothetical questions or questions asked of a lay witness to provide an opinion on specific portions of the evidence that he had no hand in collecting.
[56] Except maybe for one question (qq. 87-88), none of the questions listed in the Notice of Appeal under this ground are hypothetical questions. Most of them were objected to on the basis of relevance. In my view, all of the questions are relevant and the Associate Judge did not err in ordering them to be answered. The fact that Mr. Cerqueira may not have personal knowledge with respect to certain issues is not a proper objection. On discovery, a representative of a corporation is required to answer not only on their own knowledge, but as well on information and belief which may go beyond personal information and belief and include that of the corporation itself. The representative may also be questioned about the corporation’s position. See Harris v. Leikin Group Inc., 2011 ONSC 166 at para. 21 and Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129.
[57] With respect to the only question that could be described as hypothetical (qq. 87-88), as acknowledged by the Defendants, hypothetical questions are not necessarily improper. I find that the question in issue was proper. It is within the knowledge of the TTC and/or TTCIC, on behalf of which Mr. Cerqueira was examined. Further, the question had a factual foundation in the evidence (i.e. the Defendants’ evidence was that the Plaintiff was injured outside of the bus while the Plaintiff’s evidence was that she was injured on the bus). See Claveau v. Walker, 2020 ONSC 7138 at para. 17.
[58] Therefore, the Defendants have failed to show that the Associate Judge made a palpable and overriding error in ordering the questions in issue to be answered by Mr. Cerqueira.
c. Solicitor’s undertaking
[59] After the examination for discovery of Mr. Ashbourne was terminated on October 2, 2013, counsel made some statements on the record. Counsel for the Plaintiff said that he “didn’t anticipate [his] examination of Mr. Ashbourne being much longer.” He expressly stated that he could not promise how long he would be. He also stated that his examination of Mr. Ashbourne was going to be the longest one as he was a pivotal defendant in the action because he was the person who had found the evidence of alleged fraud that was relied upon by the Defendants. At the end of his statement, he said the following:
And I’m hopeful that that can -- that this is just a small hiccup and that we can – counsel will be able to get instructions to have Mr. Ashbourne come back for what I anticipate is only a short time longer, so that I can complete my examination with respect to his interview of Ms. Pinor, who he described as the pivotal witness, and to also ask counsel questions in relation to this -- the standard counsel questions in relation to the Affidavit of Documents and the pleadings in this case, and continue with the other examinations of the defendants. Thank you.
[60] The Defendants’ position is that this constitutes an undertaking on the part of counsel for the Plaintiff to only ask questions about the statement taken from Ms. Pinor and standard questions asked of opposing counsel.
[61] As stated above, the Associate Judge did not entertain the Defendants’ argument based on an alleged solicitor’s undertaking as such a ground for refusing to answer questions was not set out in the refusals and undertakings chart.
[62] By not including the alleged solicitor’s undertaking in the refusals and undertakings chart, the Defendants did not comply with Rule 37.10(10)(b)(ii). As a result, it was within the Associate Judge’s discretion to decline to rule on this ground.
[63] I also find that the Associate Judge did not err in not expressly referring to the alleged solicitor’s undertaking in his discussion about time limits. The Associate Judge was aware of the statements made by counsel on the record after the termination of Mr. Ashbourne’s examination for discovery on October 2, 2013, as he referred to a statement made by counsel for the Defendants (Ms. Ferreira) that immediately followed and was in response to the statement of counsel for the Plaintiff. Further, counsel for the Defendants specifically indicated to the Associate Judge that the alleged undertaking was not about time limits, but about topics to be covered:
THE COURT: The problem with that, how do I know that that time undertaking has any bearing on this question? How do I know that? Did he come up to the edge of his, whatever, two hours when he asked this question? Was he within one minute of that deadline when he asked this question? Because that would have been appropriate.
MR. TOWNSEND: It wasn’t a time. It was a topic – the, the topic that, that Mr. Romain said that he would restrict it to.
THE COURT: So you’re saying it wasn’t time – it wasn’t an undertaking about time.
MR. TOWNSEND: No.
THE COURT: It was an undertaking about topic?
MR. TOWNSEND: Yes, precisely.
[64] In light of this exchange, the Defendants cannot now complain that the Associate Judge did not take this issue into account when dealing with time limits. I also refer to the discussion above regarding the Associate Judge’s views on the relevance of prior scheduling discussions between counsel.
[65] Further, and in any event, the statement that is relied upon by the Defendants does not constitute a solicitor’s undertaking or an agreement.
[66] An undertaking is a promise given by a solicitor through a written statement, a verbal communication or inferred from their acts, or a combination thereof: see Ontario Professional Fire Fighters’ Association v. Atkinson, 2018 ONSC 4166 at para. 21. In my view, the excerpt above, especially when read in the context of the rest of the statement made by counsel for the Plaintiff, cannot be interpreted as a promise. The use of the word “anticipate” does not support the view that a formal promise was being made.
[67] Accordingly, there is no reviewable error with respect to the issue of the alleged solicitor’s undertaking.
d. Order that the Defendants reattend at their own expense
[68] In their Notice of Appeal, the Defendants allege that the Associate Judge erred in considering irrelevant factors when deciding to order the Defendants to bear their own costs of further discovery. This argument was not developed in the Defendants’ Factum nor in oral argument. Based on the Notice of Appeal, the alleged irrelevant factors appear to be factors related to the counterclaim. For the reasons set out above, the counterclaim issue did not play any determinative role on the motion. In light of his reasons and his findings regarding the improper refusals and undertakings that were inadequately answered, I can find no error in the Associate Judge’s decision to order that the Defendants reattend at their own expense to complete their discoveries.
5. Leave to appeal from Costs Decision
[69] Given that the Associate Judge’s substantive disposition of the motion is affirmed, leave to appeal the Costs Decision is necessary: see St. Jean v. Cheung, 2009 ONCA 9 at para. 4 and Mullin v. Lagace, 2015 ONCA 757 at para. 8.[^3]
[70] The test for leave to appeal an order as to costs is stringent: see Colistro v. Tbaytel, 2019 ONCA 197 at para. 65. Leave to appeal from a costs order should be granted (i) sparingly, and (ii) where there are strong grounds on which the appellate court could find that the decision-maker at first instance erred in exercising their discretion because they made an error in principle or their decision is plainly wrong. A reviewing court must also be mindful that a costs award is a discretionary order and the decision-maker at first instance is in the best position to determine the entitlement, scale and quantum of any such award. See McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597 at paras. 24-27, Houghton + Houghton Inc. v Farncomb Kirkpatrick & Stirling Surveying Ltd., 2017 ONSC 1478 at para. 17, Midland Resources Holding Limited v. Bokserman, 2022 ONCA 73 at para. 35, and Smith v. Mackinnon, 2017 ONSC 4638 at para. 13 (Div. Ct.).
[71] Costs awards are notoriously difficult to appeal because they represent the trier’s exercise of judgment as to the overall justice of the situation that they saw unfolding before them: Strathmillan Financial Limited v. Teti, 2021 ONSC 7603 at para. 39.
[72] The Plaintiff was the successful party on the motion. The Associate Judge granted her costs on a partial indemnity basis, not on a higher scale, and the quantum of costs that he ultimately granted was in an amount that was approximately 54% of the amount that the Plaintiff was seeking on a partial indemnity basis.
[73] None of the grounds raised by the Defendants with respect to the Costs Decision support the conclusion that the Associate Judge made an error in principle or that the Costs Decision is plainly wrong:
a. Counterclaim issue. The Associate Judge mentioned the issue of the counterclaim in the context of his discussion of the appropriate scale of costs. He concluded that he should not sanction the Defendants on this basis and that the appropriate scale of costs was partial indemnity. While the issue of the counterclaim was briefly mentioned again in the context of the importance of the motion for the Plaintiff, there is no basis to conclude that the issue of the counterclaim had any impact on the quantum of costs, which is the only matter in issue in this appeal.
b. Ignored arguments and ignored cases. As stated above, most of the “ignored” arguments mentioned in the Defendants’ Factum relate to the excessive time spent by the Plaintiff’s counsel on the motion. The Associate Judge expressly concluded that the time put into the motion by counsel for the Plaintiff was disproportionate and unreasonable, so the Associate Judge accepted the Defendants’ position that the time spent was excessive. Further, and in any event, the Associate Judge does not have to refer to every single argument made by the parties in his reasons. The same applies to cases cited by the parties. The law does not require that a motion judge or an associate judge deal with every piece of evidence before them and every argument made. It is sufficient if the reasons tell the parties what the judge decided and why. See Hersey v. Hersey, 2016 ONCA 494 at para. 13 and Maio v. Kapp Contracting Inc., 2022 ONCA 196 at para. 12. There is no basis in the record to conclude that the Associate Judge failed to consider the Defendants’ position, argument and cases. Moreover, given that decisions with respect to costs are highly fact-specific, other cases are often of very limited utility.
c. Success of the Defendants. This ground has no merit. The Associate Judge expressly stated in his reasons that there would be a reduction of the costs awarded to the Plaintiff “due to the limited successes of the TTC Defendants.” As stated above, the amount sought by the Plaintiff was significantly reduced, albeit for a number of reasons.
d. Expectations of the Defendants regarding the length of the motion. The Associate Judge was obviously aware of the time/days that were added for the hearing of the motion. He did not find that any party was responsible for the motion taking longer than expected. In fact, he stated that some of the work done by the Plaintiff’s counsel (i.e. colour-coding of the refusals and undertakings chart) allowed the motion to move forward “much quicker than it otherwise would have.” The main reason for the length of the motion was the sheer number of refusals and undertakings given by the Defendants that the Plaintiff had to move on and with respect to which she was largely successful. The Defendants are the ones to blame for the number of improper refusals and inadequately answered undertakings.
e. Reasonable expectations of the unsuccessful party. The Associate Judge considered this issue and dealt with it in a separate section of his reasons that has 14 paragraphs. His conclusion that the Defendants’ costs outline had no credibility is well supported. In the particular circumstances of this motion and in light of the Associate Judge’s detailed reasons, his conclusion regarding the reasonable expectations of the parties is not plainly wrong nor is it tainted by an error in principle.
[74] In light of the foregoing, I find that no error in principle was made and that the Costs Decisions is not plainly wrong. Thus, I conclude that leave to appeal the Associate Judge’s Costs Decision should be denied.
C. CONCLUSION
[75] The Defendants’ appeal is dismissed and leave to appeal the Costs Decision is denied.
[76] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by February 14, 2023. The Defendants shall deliver their responding submissions (with the same page limit) by February 28, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.
Vermette J.
Date: January 31, 2023
[^1]: The defendant Toronto Police Services Board did not participate in this appeal.
[^2]: The numbers in the chart above do not add up to 166. Some of the questions may have included more than one undertaking or refusal or may not have been included in the Associate Judge’s reasons.
[^3]: At the hearing, counsel for the Plaintiff argued that the Defendants’ appeal of the Costs Decision should be quashed on a number of grounds, including that leave to appeal had not been sought in the Notice of Appeal or otherwise. In support of his arguments, which were not developed in his Factum, he referred to a number of cases which were not cited in his Factum. Given this and my ultimate disposition on the costs issue, I decline to address the Plaintiff’s new arguments.