Court File and Parties

COURT FILE NO.: CV-17-00072159-0000 DATE: 2024/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Victor Mesta and Yolanda Mesta, Plaintiffs AND Mounir Hachani, Miftah Idrissi Moulay Said, and Coventry Connections Inc, Defendants

BEFORE: Associate Justice M. Fortier

COUNSEL: Farah Zaman, for the Plaintiffs Michelle Doody, for the Defendant

HEARD: January 18, 2024

Endorsement

[1] This motion was brought by the Plaintiffs in the context of an action for damages sustained by the Plaintiff, Victor Mesta, arising out of a motor vehicle accident that occurred on April 4, 2015.

[2] The trial in this matter was scheduled to proceed on February 26, 2024, for four weeks.

[3] On November 29, 2023, one week before the December 6, 2023 pre-trial, the Defendant served the Plaintiffs with Medicolegal File Review expert report dated November 29, 2023 (the “Report”) in breach of rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Plaintiffs thereupon scheduled the within motion for an order excluding the Report from the evidence to be admitted at trial.

[4] Three days before the return date of the motion, the Defendant advised the Plaintiffs that the Defendant is no longer seeking to rely on the Report.

[5] The substantive issue on the motion having been resolved, the Plaintiffs were seeking their costs thrown away of the motion on a partial indemnity scale in the sum of $5,943.52 inclusive of HST and disbursements.

[6] The Defendant took the position that no costs should be awarded or, in the alternative, that costs should be awarded in the cause.

[7] Although the court was subsequently advised on January 29, 2024 that the action had been settled, the issue of costs thrown away for the motion remained outstanding.

[8] Generally, costs thrown away are intended to indemnify a party for steps taken in the litigation that were reasonably necessary but rendered useless by the conduct of the other party (see Legacy Leather International Inc. v. Ward at para 9).

[9] The principles that the court is to consider with respect to a claim for costs thrown away are set out in the decision of Robinson A.J. in Moskowitz v. Toronto Transit Commission, 2023 ONSC 5535, wherein he states the following at para. 9:

In my view, there are three components to making out a claim for costs thrown away: (i) the step for which costs thrown away are claimed was reasonably necessary; (ii) fees and/or disbursements for the step were wasted or rendered useless; and (iii) conduct of the other party occasioned the wasted or useless costs. Notably, though, demonstrating all three elements does not guarantee an award of costs thrown away. Costs of any step in a proceeding are always in the discretion of the court.

[10] For the following reasons, I find that the Plaintiffs satisfy all three components for a claim for costs thrown away:

a) With respect to the first component, in my opinion, the delivery of the Report on the eve of trial made it reasonably necessary for the Plaintiffs to bring a motion for an order excluding the Report. Time was of the essence.

b) Dealing with the second component, in my view, the fees and disbursements for bringing the motion were rendered useless because the Defendant ultimately agreed, three days before the hearing of the motion, to exclude the Report thereby making the motion unnecessary. Not all preparation is considered to be costs thrown away because some of it may be of use at a later date. However, in this particular situation, I cannot conclude that the preparation for this motion would be of assistance to the Plaintiffs moving forward.

c) Finally, in my opinion, the conduct of the Defendant gave rise to the wasted costs by serving the Report in breach of rule 53.03 of the Rules of Civil Procedure and on the eve of trial. Moreover, as previously mentioned it was not until three days before the return date of the motion that the Defendant agreed not to rely on the Report at trial.

[11] In my view, the costs for the preparation of this motion were rendered useless and it is therefore appropriate to award costs thrown away to the Plaintiffs.

[12] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that costs are in the discretion of the court. In exercising my discretion with respect to costs, I am mindful that the fixing of costs is not simply a mechanical exercise; the objective is to fix an amount that is fair and reasonable in all the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.

[13] In my view, costs in the sum of $5,000 inclusive of HST and disbursements are fair and reasonable in all the circumstances. Accordingly, the Defendant shall pay to the Plaintiffs costs thrown away in the sum of $5,000 within 30 days.

Associate Justice M. Fortier Date: March 6, 2024