COURT FILE NO.: CV-22-00677610-0000
DATE: 2024-12-31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADAMS et al v. BODY PLUS NUTRITIONAL PRODUCTS INC. et al
BEFORE: ASSOCIATE JUSTICE G. ECKLER
HEARD: Thursday October 31st 2024 by Zoom videoconference
COUNSEL: Ian Matthews and Alicia Krausewitz, appearing for the plaintiffs/moving parties
Neil Rabinovitch and Stefan Rus, appearing for the defendants/responding parties
REASONS FOR DECISION
[1] This is a motion by the plaintiffs for an Order striking out the statement of defence of the defendants pursuant to Rule 34.15(1)(b) of the Rules of Civil Procedure.
[2] The plaintiffs are also seeking an Order pursuant to Rule 34.15(1)(d), that the defendants be ordered to pay costs thrown away incurred in connection with the last minute cancellation of the examination for discovery of the plaintiff Dr. Adams, which was scheduled to proceed on August 27th 2024, and in connection with the defendants’ non-attendance at their examinations for discovery which were scheduled to proceed on September 26th and September 27th 2024.
[3] For the reasons that follow, the plaintiffs’ motion to strike the defendants’ statement of defence is dismissed. The plaintiffs’ motion seeking costs thrown away incurred in connection with the cancelled examination for discovery of the plaintiff, Dr. Adams is dismissed. The plaintiffs’ motion for costs thrown away in connection with the defendants’ non-attendance at their examinations for discovery shall be granted, subject to a reduction of the amount requested.
PROCEDURAL BACKGROUND
[4] The plaintiffs, Mikhael Adams and Integrated Bioenergetic Medicine Corporation (“the plaintiffs”) commenced this action as against the defendants, Body Plus Nutritional Products Inc. and Jamieson Wellness Inc. (“the defendants”), for breach of contract, inducing breach of contract and misappropriation of personality. The plaintiffs are seeking damages in excess of $2 million. The core allegation in the statement claim is that the defendant, Body Plus Nutritional Products Inc. (“Body Plus”), has breached the terms of a termination agreement effective as of September 28, 2017 (“Termination Agreement”), pursuant to which Body Plus was to cease using the name, likeliness and biographical information of the plaintiff, Dr. Mikhael Adams, in marketing certain nutritional products after August 31, 2019, in exchange for a lump sum payment.
[5] The plaintiffs allege that Body Plus has breached the Termination Agreement by continuing to use Dr. Adams’ name, likeness and biographical information since September 1, 2019 without additional compensation being paid to Dr. Adams.
[6] On February 28, 2022, the plaintiffs issued a Notice of Action, and subsequently filed their statement of claim on March 25, 2022.
[7] The defendants served their statement of defence on July 15th 2022.
[8] The pleadings closed on July 15th 2022. The plaintiffs served their affidavit of documents on August 12th 2022. The plaintiffs served a supplementary affidavit of documents on March 10th 2023 and a further supplementary affidavit of documents on February 22nd, 2024.
[9] The parties agreed on a Discovery Plan on May 8th 2023.
[10] On June 23, 2023, the plaintiffs brought a discovery motion (“Discovery Motion”) returnable September 14, 2023.
[11] The Discovery Motion was heard by Associate Justice Rappos. By Order of Associate Justice Rappos dated January 15, 2024, the defendants were ordered to produce a further and better Affidavit of Documents, and were ordered to pay costs in the amount of $8,500 for their non-compliance with their obligations in the discovery process, including:
(i) their failure to serve an affidavit of documents by December 1, 2022, as provided for in the consent order of Justice Pollak dated November 7, 2022;
(ii) their failure to serve an affidavit of documents by February 28, 2023, as counsel to the defendants committed to do in an email dated February 1, 2023;
(iii) their failure to serve a revised and sworn affidavit of documents by May 31, 2023, as the defendants consented to and is provided for in the Endorsement and Order of Associate Justice Brown dated April 24, 2023; and
(iv) their failure to serve a sworn affidavit of documents and complete documentary productions by May 31, 2023, as set out in a discovery plan dated May 8, 2023 signed by counsel to the defendants.
[12] The defendants produced a supplementary affidavit of documents on February 15, 2024, and a further supplementary affidavit of documents on March 25, 2024.
[13] On May 7, 2024, the plaintiffs sought consent to amend their statement of claim. The consent was provided on June 17, 2024, and the statement of claim was amended as of June 18, 2024.
[14] On June 17th 2024, counsel for the defendants sent correspondence to plaintiffs’ counsel via email suggesting that the parties attend mediation prior to attending examinations for discovery in order to attempt to “save costs and time”.
[15] On June 21st 2024, plaintiffs’ counsel, Borden Ladner Gervais LLP (“BLG counsel”) requested from defence counsel production of information with respect to the total sales of Progressive-branded products from March 1, 2020 to present (the “Sales Data”), indicating that this data “would assist the parties and also help to streamline the discovery process”. Counsel for the plaintiffs also indicated that the plaintiffs wished to complete examinations for discovery before mandatory mediation and that they intended to complete examinations by the end of the summer of 2024.
[16] On June 26, 2024, BLG advised counsel for the defendants that the plaintiffs were available to be examined for discovery on July 15, 2024, and could also be available during the last two weeks of August. The defendants were asked to advise when the plaintiffs’ examinations could be scheduled. In the same email, BLG advised that it would send its notices of examination for the examinations for discovery of the defendants by the end of the week, and would choose consecutive days during the week of August 19th 2024, for those examinations in the absence of any reason not to proceed this way.
[17] On June 28, 2024, with no response having been received from counsel for the defendants, BLG served notices of examination for the examinations for discovery of the representatives of the defendants for August 19th and 20th, 2024. The notices of examination outlined specific documents that the defendants were requested to bring with them to their examinations for discovery, including the previously requested Sales Data.
[18] On July 19, 2024, counsel for the defendants responded to the service of the Notices of Examination and advised that the representatives of the defendants were unavailable to be examined for discovery on August 19th and 20th, 2024. Counsel for the defendants advised, however, that the defendants were available for a number of dates in September, including September 26-27, 2024.
[19] On July 19, 2024 BLG followed up with counsel for the defendants and enquired if counsel for the defendants was able to conduct the examinations for discovery of the plaintiffs during the last two weeks of August 2024. That same day, counsel for the defendants advised that he could examine the plaintiffs on a number of days in late August, including August 26 or August 27, 2024. Counsel for the defendants also indicated that the defendant Jamieson was compiling the Sales Data requested.
[20] On August 9, 2024, BLG confirmed that the plaintiffs were available to be examined for discovery on August 26 or August 27, 2024, and asked the defendants to select a date as soon as possible. In that same email, BLG counsel advised that in light of the defendants’ unavailability for their examinations on August 19-20, he was moving their examinations to September 26-27, 2024 and enclosed copies of Amended Notices of Examination.
[21] On August 17th 2024, the defendants confirmed the Tuesday August 27th 2024 date for the examination for discovery of the plaintiff, Dr. Adams.
[22] On Friday August 23, 2024 at 3:45 p.m., counsel for the defendants sent a message to BLG advising that “we had discussed doing Dr. Adams’ examination on August 27, 2024, but my client is not able to attend, and as such I want to schedule a new date for Dr. Adams”. Counsel for the defendants proposed dates for the examination of Dr. Adams in September and October 2024. Counsel for the defendants apologized “for the delay in confirming this point”.
[23] The parties proceeded to re-schedule the plaintiff’s examination for discovery and tentatively agreed on the date of October 4th 2024 for the plaintiff’s examination for discovery to proceed. In this regard, on September 16th 2024, counsel for BLG confirmed via email that the plaintiff’s examination would proceed at 11 am, on October 4th 2024 and he advised that he would leave it to counsel for the defendants to make arrangements with the court reporter.
[24] On several occasions, including on August 28th, August 30th 2024, September 5th 2024, September 13th 2024, and September 20th 2024, BLG sent further requests for the documents requested in the notices of examination noting that if the documents were not produced in advance of the examinations, there would be a large number of undertakings and likely a need for further examinations arising out of those undertakings.
[25] On September 15th 2024, counsel for the defendants sent a responding email to BLG counsel with respect to the plaintiffs’ requests for further documentary productions.
[26] On September 26 and September 27, 2024, neither of the representatives of the defendants attended at their scheduled examinations for discovery. Counsel for the defendants also failed to appear at the scheduled examinations for discovery of his clients.
[27] When plaintiffs’ counsel attended the court reporter’s office on September 26th, 2024, and the defendants did not attend, plaintiffs’ counsel did not contact counsel for the defendants to ask if his clients would be attending their examinations or to enquire why he and his clients were not in attendance. Plaintiffs’ counsel proceeded to obtain a certificate of non-attendance.
[28] Plaintiffs’ counsel then attended at the second scheduled examination date of September 27th 2024 and the defendants and their counsel did not appear. Again, plaintiffs’ counsel did not contact counsel for the defendants and he again obtained a certificate of non-attendance.
[29] On September 27th 2024, plaintiffs’ counsel sent an email to counsel for the defendants at 11:03 am, and indicated that “I would like to discuss the status of this case. Let’s set up a time for a call. Also can you make yourself available on October 24th in the morning. Please let me know ASAP”. At this time, plaintiffs’ counsel did not mention or raise as an issue the two days of missed examinations or that he had obtained the two certificates of non-attendance.
[30] On October 2nd, 2024, plaintiffs’ counsel sent an email to counsel for the defendants and advised that “We have been instructed to bring a further motion arising out of discovery deficiencies”. Plaintiffs’ counsel advised that as a result of the motion, the October 4th date which was tentatively agreed upon for Dr. Adams’ examination for discovery would have to be cancelled. Plaintiffs’ counsel noted that no notice of examination had yet been served in any event. Plaintiffs’ counsel did not indicate that the proposed motion was for an Order striking the statement of defence, nor did he mention the defendants’ failure to attend at the September 26th and September 27th examinations for discovery. He proposed a motion date of October 31st 2024.
[31] Counsel for the defendants sent a responding email to plaintiffs’ counsel on October 2nd, 2024 confirming that the October 4th examination of the plaintiff, Dr. Adams would not proceed as requested by plaintiffs’ counsel. Counsel for the defendants also suggested November and December 2024 dates for the examinations for discovery of the defendants. Counsel for the defendants indicated that he did not believe that a motion was necessary but he would make himself available or find someone to attend on October 31st 2024.
[32] The motion record for this motion was served on October 2nd, 2024. The evidence in the record before me indicates that when the motion record for this motion was served on October 2nd, 2024, counsel for the defendants was not aware that he and his clients had failed to attend at the examinations for discovery which had been scheduled to proceed on September 26th and September 27th 2024, as defence counsel was under the mistaken impression that the dates had not yet been confirmed.
[33] After this motion was scheduled, the defendants retained new counsel. In particular, Dentons Canada LLP (“Dentons”) was retained by the defendants in this action on or about October 7th 2024. A notice of change of lawyer was served on October 7th 2024.
[34] On October 10th 2024, counsel at Dentons contacted counsel for the plaintiffs and counsel engaged in without prejudice discussions.
[35] On October 16th 2024, Dentons delivered via email a letter to plaintiffs’ counsel proposing a timetable for moving the matter forward to mediation and for producing outstanding documents. Dentons received a reply email from BLG counsel, on October 16th 2024, indicating that the plaintiffs would proceed with their motion to strike the defence, returnable October 31st, 2024.
[36] Dentons responded to BLG’s email on October 17th 2024 and suggested that the parties focus on putting a consent timetable in place and suggested that the plaintiffs could reserve their rights regarding costs, including as part of a resolution at mediation or otherwise. Dentons also indicated that the defendants would be seeking an adjournment of the motion as counsel was not available on October 31st 2024, as previously advised, and counsel required more time to respond to the motion as the firm had been very recently retained.
[37] The request for an adjournment of the motion was refused and plaintiffs’ counsel insisted that the motion proceed on October 31st 2024.
PLAINTIFFS’ POSITION
[38] The plaintiffs argue that the defendants have demonstrated a consistent and cavalier disregard of their pre-trial discovery obligations. In particular, in addition to the issues raised at the Discovery motion, the plaintiffs highlight that the defendants have failed to produce the additional Sales Data requested, cancelled the examination for discovery of the plaintiff on one business day’s notice and missed two scheduled days for the defendants’ examinations for discovery.
[39] The plaintiffs further argue that the resulting delay in this action has prejudiced the plaintiffs’ timely pursuit of access to justice and that the defendants, by their conduct, have forfeited their right to participate in these proceedings such that their statement of defence should be struck.
[40] In support of this motion, the plaintiffs rely on the affidavit of the plaintiff, Mikhael Adams, sworn on September 30th 2024 and the affidavit of Nikki Kheiritash sworn on October 2nd, 2024.
[41] Dr. Adams is one of the plaintiffs in this proceeding and is also an officer, director and shareholder of the plaintiff Integrated Bioenergetic Medicine Corporation.
[42] Ms. Kheiritash is a law clerk at plaintiffs’ counsel’s office.
[43] The affiants were not cross-examined on their affidavits.
[44] The evidence of the plaintiff, Dr. Adams is that he and his wife are funding this litigation personally and that the unnecessary delays caused by the defendants have had a substantial impact on their financial resources. Dr. Adams and his wife have had to rely upon their retirement savings to pay their legal costs.
[45] Moreover, it is the evidence of the plaintiffs that the events at issue in this proceeding go back to at least 2017, and the passage of time is prejudicing the plaintiffs’ ability to collect evidence needed to prove their case. As an example the plaintiff, Dr. Adams, suggests that recollection of events by some of the people who he may seek to call as witnesses may continue to fade.
[46] Dr. Adams’ evidence is that the manner in which this action has proceeded has resulted in him feeling as though he will not get his day in court to have his claims determined. In his affidavit he references his lawyer’s advice to him that bringing this motion will delay the progress of this action by approximately one year.
[47] The plaintiffs further raise the issue that none of the documents requested in the Notices of Examination (and subsequently, the Amended Notices of Examination) served on counsel for the defendants have been produced as of the date of the Notice of Motion.
DEFENDANTS’ POSITION
[48] In response to the plaintiffs’ motion, the defendants rely on the affidavit of their prior counsel, John Reiterowski, sworn on October 21st 2024. From approximately September 2023 until October 7, 2024, Mr. Reiterowski was retained as counsel for the defendants in this action. Mr. Reiterowski was not cross-examined on his affidavit.
[49] The evidence of Mr. Reiterowski is that when BLG sent the email to him on August 9th 2024 stating, among other things that the examinations of the defendants were scheduled to proceed on September 26th and September 27th, it was through inadvertence that he did not notice the Amended Notices of Examination which were attached to the email. It was his understanding that the parties were still in discussions to settle dates, which is why he replied to the BLG email dated August 9th 2024, on August 17th 2024 stating that “September 26-27 ought to work for the Jamieson’s people but will confirm”.
[50] Mr. Reiterowski’s evidence is that on September 15th 2024, due to inadvertence, he forwarded the defendants copies of the original August 19th and 20th Notices of Examination instead of the September 26th and 27th Amended Notices of Examination. His evidence is that at this time, he was not yet aware of the existence of the Amended Notices of Examination. His evidence is that on September 15th 2024, he was still under the mistaken impression that the September dates for the defendants’ examinations remained tentative dates.
[51] On September 20th 2024, BLG sent an email to Mr. Reiterowski requesting documents and referring to the upcoming examinations of the defendants scheduled for the following week. Mr. Reiterowski’s evidence is that through inadvertence he did not understand or reply to BLG’s reference to the examinations on “next Thursday and Friday” because he was under the impression that the examinations had not been scheduled. He did not reply to BLG’s request for documents because he had already provided counsel with his clients’ position regarding those productions.
[52] Because Mr. Reiterowski thought that the defendants’ examinations had not yet been finalized, neither he nor his clients attended the defendants’ examinations which had been scheduled to proceed on September 26th or 27th 2024.
[53] Mr. Reiterowski did not receive any calls or emails on September 26th, 2024, from BLG alerting him to his absence with respect to the September 26th examination, or inquiring if he and his clients would be attending the September 27th 2024, examination.
[54] Mr. Reiterowski only became aware that BLG had scheduled the examinations of the defendants on September 26-27th, 2024, and that his clients had failed to attend these examinations, on October 2nd, 2024 when at 8:03 pm BLG served the motion record for this motion via email.
THE LAW
[55] The relevant Rule on this motion is 34.15(1)(b) which provides as follows:
34.15 (1) Where a person fails to attend at the time and place fixed for an examination
in the notice of examination or summons to witness or at the time and place agreed on
by the parties, or refuses to take an oath or make an affirmation, to answer any proper
question, to produce a document or thing that he or she is required to produce or to
comply with an order under rule 34.14, the court may,
(b) where the person is a party or, on an examination for discovery, a person
examined on behalf or in place of a party, dismiss the party’s proceeding or
strike out the party’s defence;
[56] The court’s authority to strike a defence pursuant to Rule 34.15(1)(b) is discretionary and the corresponding analysis is fact specific. (Madonia v. Mulder, 2001 CarswellOnt 1025 at paras 53 and 56, affirmed 2002 CarswellOnt 481.)
[57] In Hordo v. State Farm Mutual Automobile Insurance Company, 2022 ONSC 3678 at paras 73 and 74, Justice Vermette confirmed that rule 34.15(1)(b) case law establishes that striking a defense is regarded as draconian and reserved for severe misconduct that is deliberate and repeated. In this regard, Justice Vermette stated the following:
Under Rule 34.15(1)(b) of the Rules of Civil Procedure, where a plaintiff fails to attend an examination for discovery, the court may dismiss the plaintiff’s action. However, it is rare that a dismissal order is made and, typically, the plaintiff is given a further opportunity to comply with their obligations, i.e. the plaintiff is ordered to attend an examination. The dismissal of a proceeding is regarded as draconian, and courts are reluctant to dismiss a potentially meritorious claim on grounds that do not address its merits. This sanction is reserved for the most extreme cases where the delinquent party has been contumacious or has deliberately flouted the law, and the other party can demonstrate that their ability to prosecute or defend the claim would be prejudiced by the delinquent party being ordered to reattend to be examined. See Gomommy Software.com Inc. v. Blackmont Capital Inc., 2014 ONSC 2478at paras. 1-2, 50-52, 62 (Div. Ct.).
The discretion to strike a pleading should be exercised as a last resort where warranted in order to protect the integrity of the justice system from abuse by a recalcitrant litigant. See Starland Contracting Inc. v. 1581518 Ontario Ltd., 2009 CanLII 30449 at para. 27 (Ont. Div. Ct.).
[58] In support of this motion, the plaintiffs rely significantly on the decision of Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors) (“Falcon Lumber”), where the Court of Appeal held that it was open to the motion judge to sanction disclosure misconduct of corporate defendants by striking out their defence. Specifically, the Court of Appeal found that:
Hryniak requires judges to actively manage the civil legal process in line with the principle of proportionality: at para. 32. Orders to strike out pleadings are one means by which to ensure that the civil justice process delivers justice that is proportionate, timely, and affordable.
[59] The Court of Appeal further stated at para 72 that:
Hryniak's goal of accessible civil justice cannot be achieved if courts allow defendants in modest monetary claims to remain in default of their fundamental production obligations for two years. Such cases should be disposed of on their merits within two years, not remain mired in production disputes and motions for two years.
[60] Counsel for the plaintiffs urges the court to apply the test and principles outlined in Falcon Lumber as a basis for deciding whether or not the relief requested in this motion should be granted. While Falcon Lumber involved a motion pursuant to Rule 30.08, the moving parties argue that footnote [2] at paragraph 47 of this decision suggests that the legal principles and test articulated in Falcon Lumber are equally applicable to this motion. In particular, the plaintiffs highlight that footnote [2] at paragraph 47 of the Falcon Lumber decision references the court’s ability to strike a defence pursuant to Rule 34.15. The plaintiffs argue that this footnote suggests that the factors that a court must consider on a motion pursuant to Rule 30.08(2)(b) as outlined in Falcon Lumber, are equally applicable to a motion launched pursuant to Rule 34.15.
[61] At paragraphs 49 to 55 of Falcon Lumber, the Ontario Court of Appeal discussed the limited jurisprudence which exists regarding when it is appropriate to strike out a party’s pleading pursuant to Rule 30.08(2)(b):
Limited jurisprudence exists about when it is appropriate to strike out a party’s pleading under r. 30.08(2)(b) for breach of documentary disclosure and production obligations. Given the variety of circumstances in which a party may resort to r. 30.08, the most pragmatic articulation of a guiding principle is that made by Wein J. in Newlove v. Moderco Inc., 2002 CanLII 34748 (Ont. Sup. Ct.), at para. 21, that “the scope of the remedy is one within the discretion of the Court, to be determined in the context of the particular case.” Several principles guide the exercise of that discretion.
First, contrary to the appellant’s assertion, striking out a pleading under r. 30.08(2)(b) is not restricted to “last resort” situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. Some cases have granted the remedy where previous orders were breached: DLE Consulting Inc. v. Graham, 2016 ONCA 315, 130 O.R. (3d) 799; Vacca v. Banks, 2005 CanLII 1054 (Ont. Div. Ct.). In others, no prior order had been made: Royal Bank of Canada v. Russo, 2002 CarswellOnt 73 (Ont. Div. Ct.). However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading: Koohestani v. Mahmood, 2015 ONCA 56, 124 O.R. (3d) 205, at para. 54.
Second, a court should consider a number of common sense factors when deciding whether to strike out a pleading under r. 30.08(2): (i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case: Royal Bank of Canada, at para. 12; and see the cases reviewed in King v. Belair Direct (2004), 2004 CanLII 19530 (ON SCDC), 184 O.A.C. 189 (Div. Ct.), at paras. 12-13.
Third, although a court may also consider the merits of a party’s claim or defence, as it does under r. 60.12 dealing with the failure to comply with an interlocutory order[3], this factor may play only a limited role where breaches of production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations.
Finally, a court must consider whether an order to strike out a pleading would constitute a proportional remedy that is consistent with the recent calls of the Supreme Court of Canada to alter the Canadian litigation culture.
Orders to strike out pleadings are one means by which to ensure that the civil justice process delivers justice that is proportionate, timely, and affordable. Accordingly, when considering whether to strike out a party’s pleading by reason of its failure to comply with its documentary disclosure and production obligations, in addition to the factors set out in paras. 50 to 54 above, a court should consider:
• the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and
• to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute.
[62] The defendants argue that Falcon Lumber is not applicable to this motion and urge the court to consider the various cases decided pursuant to Rule 34.15 which is the rule relied upon in the plaintiffs’ notice of motion. In this regard, in support of their position that the statement of defence should not be struck, the defendants rely on various cases decided under Rule 34.15, where conduct more severe than the defendants’ conduct in the immediate case, did not warrant the striking of a party’s defense. (See for example Hordo v State Farm Mutual Automobile Insurance Company, 2022 ONSC 3678, Braaksma v. Silver, 2024 ONSC 1540 and John Wheelwright Ltd. (Trustee of) v. Central Transport Inc., 1996 CarswellOnt 3274)
[63] While some of the cases relied upon by the defendants concern unrepresented parties, I nevertheless find that the cases relied upon by the defendants are more relevant and applicable to the issues raised in the immediate case. In this regard, the legal analysis in Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310 which is cited heavily in the plaintiffs’ factum, is rooted in the application of Rule 30.08(2)(b) (failure to produce documents) whereas, the cases relied upon by the defendants are based on the application of Rule 34.15 which is the rule pursuant to which this motion has been brought. Moreover, the factual circumstances present in Falcon Lumber which resulted in the striking of the statement of defence of Mr. Lotey and his two companies, are distinguishable from the facts of the immediate case.
[64] In Falcon Lumber, the motion judge hearing the motion to strike out the statement of defence of the Lotey defendants, noted that i) there had been 30 dates for motions, cross-motions, and case conferences; (ii) on most court attendances the primary issue had been the Lotey Defendants’ failure to provide complete productions; (iii) 22 orders or judicial endorsements had been made; (iv) six court production orders had been made against the Lotey Defendants; and (v) as of the date of the motion, the Lotey Defendants still had not made full and complete production of relevant documents.
[65] While there has been some delay on the part of the defendants in terms of producing documents in this case, it cannot be said, as was the case in Falcon Lumber, that the defendants are “years” into being “in default of their fundamental production obligations”. Indeed, the court is mindful of the fact that when this motion was launched, the defendants were not in breach of any court order, including any court ordered Timetable or court ordered Discovery Plan. Moreover, the moving parties have already sought and been granted relief with respect to the defendants’ non-compliance with prior documentary production Orders via motion which proceeded on January 15th 2024.
[66] In my view, the facts in Hordo v. State Farm Mutual Automobile Insurance Company, 2022 ONSC 3678 [Hordo], a decision relied on by the defendants, are more similar to the facts of this case. In Hordo, the plaintiff failed to attend an examination for discovery and a Certificate of Non-Attendance was obtained. The day before the re-scheduled examination date, the plaintiff’s counsel advised that the plaintiff was ill and would not be attending the examination for discovery. The plaintiff also requested for discoveries to proceed by way of written interrogatories. The plaintiff failed to attend the re-scheduled examination and a second Certificate of Non-Attendance was obtained. After unsuccessful attempts to follow up with the plaintiff’s counsel, defendant’s counsel brought a motion to dismiss the claim.
[67] In Hordo, the court refused to dismiss the action because it was the first time that the plaintiff’s failure to attend an examination was adjudicated by a judicial officer. The plaintiff had never been formally ordered to attend an examination for discovery, and the defendants could not demonstrate that their ability to defend the claim would be prejudiced by an order compelling attendance. The Court, referencing Gomommy Software.com Inc. v. Blackmont Capital Inc., 2014 ONSC 2478 at paras. 1-2, 50-52, 62 (Div. Ct.), confirmed at paragraph 73, that while Rule 34.15(b) provides the Court with authority to strike a party’s pleading or dismiss a party’s action, such a sanction is reserved for the most extreme cases where the delinquent party has been contumacious or has deliberately flouted the law, and the other party can demonstrate that their ability to prosecute or defend the claim would be prejudiced by the delinquent party being ordered to reattend to be examined.
[68] In support of their position on this motion, the defendants also rely on the decisions of Braaksma v. Silver, 2024 ONSC 1540 (paras 4-6, 17, 24)(“Braaksma”) and John Wheelwright Ltd. (Trustee of) v. Central Transport Inc., 1996 CarswellOnt 3274 at para 4 (“John Wheelwright”).
[69] In Braaksma, the plaintiff unsuccessfully brought a motion to strike the defendants’ pleading on account of the defendants’ failure to cooperate during the discovery process. The case was being case managed and numerous case management endorsements and orders were made in an effort to move the matter along. On September 8, 2022, the case management judge ordered that examinations for discoveries were to be conducted on or before January 31, 2023.
[70] Plaintiff’s counsel in Braaksma wrote to the defendants’ counsel in September 2022 and in June, July, August, and September 2023 to attempt to schedule examinations. The defendants offered no dates for scheduling, and therefore, the plaintiff proceeded to schedule an examination for October 2, 2023. On September 19, one of the defendants wrote an email explaining why he did not want to be examined. He subsequently did not attend on October 2nd, and the plaintiff obtained a Certificate of Non-Attendance. Despite finding that the defendant was decisively in the wrong, the court nevertheless found that the defendant’s conduct did not merit the draconian step of striking the defendants’ pleading. Justice Charney concluded that: “Rather than striking the Statement of Defence, it is preferable to see if we can get this action back on track.” (“Braaksma, at para. 24)
[71] In John Wheelwright, supra, an officer of the defendant corporation failed to attend a scheduled examination for discovery. An earlier order granted in the proceeding provided that if such a failure should occur, the plaintiff would be at liberty on a motion without notice to move to strike out the Statement of Defense. The defendant’s counsel erroneously believed that because the undertakings in the Order had been complied with, his client was no longer required to attend at the scheduled examination. Consequently, the defendant’s officer did not attend his examination for discovery.
[72] In setting aside the decision of the Master striking the statement of defence, Justice Saunders determined that the non-attendance was due to inadvertence and that there was no deliberate attempt to ignore a standing court order which would merit the striking of the defendant’s statement of defence. Justice Saunders stated the following:
Having reviewed the history and material of the matter, I am not satisfied that the non-attendance was a deliberate act of avoiding the court order
on the chance that the defendant would get away with it. I am prepared to accept that the solicitor for the defendant believed that he did
not have to produce his client for discovery. He was wrong about that, but there is no suggestion that his belief amounted to a flouting of
the existing court order. (John Wheelwright, supra, at para. 3)
ANALYSIS AND DISPOSITION
[73] In my view, the caselaw decided under Rule 34.15, and relied upon by the defendants, outlines the applicable legal principles and analysis to be applied in this motion. However, even applying the legal principles outlined in Falcon Lumber, the evidence in the record before me does not support a finding that the defendants’ statement of defence should be struck.
[74] In the immediate case, the defendants are not currently in breach of any court Order nor any documentary obligations under the Discovery Plan. Moreover, production of the additional documentation requested by the plaintiffs was not mandated by a court Order or set out in the Discovery plan. It cannot be said therefore, that the defendants have ignored or flouted any standing court Order.
[75] Former counsel for the defendants has sworn an affidavit attesting that he did not understand that firm dates for the examinations had been scheduled (as opposed to being the subject of ongoing discussions between counsel). Former counsel has further provided affidavit evidence that he did not advise the defendants of the September 26 and 27, 2024, examination discovery dates set by plaintiffs’ counsel as he was not aware that the examinations had been firmly scheduled.
[76] Based on the evidence in the record before me, I am satisfied that the defendants have provided a reasonable explanation to explain why the defendants and their counsel did not attend at the scheduled examinations for discovery on September 26th and 27th 2024.
[77] I also find that there was no deliberate failure by the defendants to attend the examinations for discovery and the failure to attend was due to inadvertence. There is also no evidence in the record before me that that the Amended Notices of Examination were sent to the defendants by their counsel or that the defendants have refused to attend at their examinations for discovery.
[78] I also find that the defendants have attempted to cure the default by reaching out to plaintiffs’ counsel to set a timetable and schedule an early mediation. In this regard, on October 2nd, 2024, prior to being served with the motion record for this motion, former counsel for the defendants proposed new dates for the examinations for discovery of the defendants in November and December of 2024. Moreover, newly retained counsel for the defendants sent a letter to plaintiffs’ counsel on October 16th 2024 confirming that his clients would aim to produce documents targeted at the compensatory damages claimed by November 15th 2024.
[79] With respect to the plaintiffs’ June 21st, 2024 request for production of documents disclosing the total sales of Progressive-branded products from March 1st 2020 to present, (“the Sales Information”), it must be noted that this information was not specified in the agreed upon discovery plan dated May 8th 2023.
[80] Mr. Reiterowski addressed the issue of the request for the further Sales Information by way of emails to BLG counsel dated July 19th, August 28th and September 15th 2024. In this regard, in my view, these emails demonstrate not a lack of response to the plaintiffs’ request for the Sales Information, but rather indicate that the defendants were working on compiling the requested information and that during the time period from June 2024 to September 2024, there remained an unresolved debate over the exact scope of what date/documents ought to be produced beyond what the defendants had already produced in accordance with the May 8th 2023, discovery plan.
[81] Based on the evidence in the record before me, I am not satisfied that the defendants’ failure to attend at their examinations for discovery and permitting the defendants to re-attend at their examinations, will result in prejudice to the plaintiffs which will impact their ability to prosecute this action or will prevent the court from being able to do justice in this particular case. While the plaintiffs have referenced that the delay caused by the defendants may impact their ability to collect evidence, no specific particulars have been provided relating to specific evidence which has not been able to be collected or to specific witnesses whose recollection of events may fade.
[82] In both Hordo and Falcon Lumber, the Court and Court of Appeal confirmed that generally a party should be provided a reasonable opportunity to cure its non-compliance before its pleading is struck.
[83] In my view, the decision of plaintiffs’ counsel to proceed with this motion given the circumstances surrounding the failure of the defendants’ to attend at their examinations for discovery ties into the consideration of the issues of delay and increased costs of litigating this action.
[84] Plaintiffs’ counsel attended at the examiner’s office on September 26, 2024, and when the defendants and their counsel did not appear, he did not attempt to contact counsel for the defendants to determine why no one was in attendance.
[85] Counsel for the plaintiffs attended the court reporter’s office again on September 27, 2024 and when the defendants did not attend, he again did not attempt to contact counsel for the defendants. He did not raise the issue of the non-attendance with counsel for the defendants in the following days, despite various communications between counsel. It was not until being served with the motion record for the immediate motion on October 2, 2024, that defendants’ counsel became aware that the plaintiffs had served Amended Notices of Examination returnable September 26 and 27 2024.
[86] Rather than re-scheduling the examinations for discovery, the plaintiffs immediately scheduled this motion requesting an order to strike the defendants’ statement of defence
[87] Upon being advised of this motion and counsel’s error, the defendants retained present counsel who requested an adjournment to be able to obtain the client file, have sufficient time to address this motion (if it could not be resolved) and because they were not available on the return date. The adjournment request from present counsel was refused.
[88] The defendants have referenced Rule 7.2-2 of the LSO’s Rules of Professional conduct which states that “A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.” The defendants argue that the plaintiffs’ actions in continuing to seek an order striking the defense, in the face of disclosure of Mr. Reiterowski’s oversight, is inconsistent with Rule 7.2-2.
[89] Given the manner in which this action has proceeded thus far, the court can appreciate the plaintiffs’ desire to move this matter forward. However, in my view, the plaintiffs’ launching of this motion, immediately after the defendants’ failure to attend at the examinations for discovery, without obtaining particulars relating to why the defendants failed to attend, is likely not the most time or cost efficient manner to address the issues raised in this motion. Indeed, in his affidavit filed in support of this motion, the plaintiff, references his lawyer’s advice to him that bringing this motion will delay the progress of this action by approximately one year.
[90] The evidence in the record before me supports the conclusion that the former counsel for the defendants, through inadvertence, did not appreciate that the defendants’ examinations for discovery had been scheduled for September 26th and September 27th 2024.
[91] No explanation has been provided by BLG counsel to explain why he did not contact counsel for the defendants on September 26th 2024 after the defendants and their counsel did not attend at the scheduled examination for discovery, or to explain why he also made the decision to attend the second day of examinations without first contacting defence counsel. Indeed, as a courtesy between counsel, a telephone call and email to defence counsel would have been an appropriate course of action in such a situation.
[92] Had this motion not been launched, the plaintiff’s examination for discovery could have proceeded as scheduled on October 4th 2024 and counsel for the defendants had offered new dates in November and December 2024 to conduct the examinations of the defendants. I find that the defendants’ failure to attend at their examinations for discovery has resulted in some delay in this action moving forward. However, I also find that the launching of this motion, the necessity of which remains open to question, has also resulted in some additional delay in terms of the action not moving forward as well as additional costs being incurred by both parties. Ultimately, considering that the plaintiffs are seeking two million dollars in damages, I find that any increased costs incurred by the plaintiffs relating to the defendants’ failures as raised in this motion, cannot be said to be so significant as to warrant the draconian remedy of striking the defendants’ pleading.
[93] Moreover, I find that any delay in this action moving forward, which can be said to be rooted in the conduct of the defendants, will not prejudice the plaintiffs’ ability to fairly prosecute this claim or prevent the court from being able to do justice in this particular case.
[94] I have considered the caselaw presented by both parties including the caselaw referencing Rule 34.15. Moreover, in order to address the plaintiffs’ position that the analysis outlined in Falcon Lumber is appropriately considered in this case, I have also considered the common sense factors as outlined in Falcon Lumber and I have applied the facts of this particular case to those factors. I have also considered the principle that striking out a pleading is not restricted to “last resort” situations as well as the notion that courts typically want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out a pleading. (Falcon Lumber, supra, at para. 61)
[95] The defendants’ current counsel has presented evidence which provides a reasonable explanation for the default coupled with a credible commitment to cure the default quickly. The defendants are not currently in breach of any court ordered timetable or Discovery Plan. The plaintiffs are seeking damages in the amount of two million dollars in this action which is of moderate complexity. There is no evidence to suggest that the defence of the defendants is not meritorious and the prejudice in having the statement of defence struck out is irreparable.
[96] In my view, based on the evidence in the record before me, and bearing in mind issues of proportionality and the recent calls of the Supreme Court of Canada to alter the Canadian litigation culture, I find that this is not an appropriate case to make an order striking the defendants’ statement of defence.
[97] The defendants shall be provided with a reasonable opportunity to cure their non-compliance with their discovery obligations. In this regard, the defendants shall attend at their examinations for discovery on a date to be agreed upon by the parties, acting reasonably, within 120 days of the release of this decision, unless the parties agree to a later date.
COSTS THROWN AWAY
[98] The plaintiffs are seeking costs thrown away relating to the last minute cancellation of the plaintiff’s examination for discovery which was scheduled to proceed on August 27th 2024. The plaintiffs are also seeking costs thrown away relating to the failure of the defendants to attend the September 26th and 27th 2024 examinations for discovery.
[99] The plaintiffs’ position is that pursuant to authority emanating from subrule 34.15(1)(d) to make “such other order as is just”, the court has the discretion to award costs needlessly wasted as a result of the defendants’ failure to attend at the September 26th and September 27th, 2024 examinations for discovery as well as the last minute cancellation of the plaintiff’s examination for discovery.
[100] The plaintiffs rely on the decision of Caldwell v. Caldwell, 2015 ONSC 7715 (“Caldwell”) in support of their position that costs thrown away should be awarded in this case. The facts in Caldwell, as in many cases where costs thrown away are being sought, involved the adjournment of a trial, which is not the case here.
[100] In examining cases in which costs thrown away have been requested, Quinlan J., in Caldwell, supra, at para. 9, determined that there are three general categories of cases where costs thrown away have been awarded. These three categories are:
(i) The first category deals with fault where counsel, for example, neglected to call a witness or a last minute adjournment is required. In cases that fit this first category, the court will grant the adjournment on conditions, which include the payment of costs thrown away;
(ii) The second category is where the trial is adjourned because of court scheduling problems or I would add, unforeseen events such an illness of a party, lawyer or witness or an emergency such as a personal emergency, health issue or death in a family. In these circumstances, no costs are awarded because no party bears responsibility for the adjournment; and
(iii) The third category deals with an adjournment request by one of the parties due to no fault on that parties’ part. Costs thrown away are still awarded against the party applying for the adjournment even though there is a lack of fault.
[101] Justice Quinlin further highlighted that the court noted in Goddard, at para. 20:
The third category… is really one of responsibility for the adjournment as opposed to fault or lack of fault… situations where someone is responsible for an adjournment but cannot be faulted for that responsibility… [B]eing responsible for an adjournment…carries with it a costs consequence. (Caldwell, supra, at para. 10)
[102] Costs thrown away are intended to indemnify a party for steps reasonably necessary to proceed with an action, but which have been rendered useless by the conduct of the other party. The role of the court is to determine what costs are actually rendered useless or wasted. Not all preparation time is considered to be costs thrown away because some of it will inevitably be of use when the trial or attendance proceeds at a later date. The court must determine what costs have actually been wasted. It has been stated that that this is not an easy task and it is an intuitive rather than scientific process. (Caldwell v. Caldwell, 2015 ONSC 7715 at paras. 8-13)
[101] Costs of any step in a proceeding are always in the discretion of the court. (Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C43) In exercising the court’s discretion to award costs under s.131 of the Courts of Justice Act, the court may consider in addition to the result in the proceeding, a number of factors set out in Rule 57.01 of the Rules of Civil Procedure.
[102] The evidence in the record before me indicates that the hours recorded in connection with preparing the plaintiff, Dr. Adams for his examinations for discovery that was scheduled to proceed on August 27th, 2024, are as follows:
(a) Ian Matthews 8 hours total, comprised of the following docket entries: 0.5 hours (August 9), 1.0 hour (August 20), 2.0 hours (August 22), and 4.5 hours (August 23)
(b) Alicia Krausewitz 10.6 hours total, comprised of the following docket entries: 0.8 hours(August 9), 3.4 hours (August 13), 4.3 hours (August 14), and 2.1 hours(August 20)
[103] The evidence in the record before me indicates that the hours recorded in connection with preparing for the examinations for the discovery of the defendants on September 26-27, 2024 are as follows:
(a) Ian Matthews 13.7 hours total, comprised of the following docket entries: 2.1
hours (September 24), 9.6 hours (September 25), 1.0 hour (September 26) and 1.0
hour (September 27)
(b) Alicia Krausewitz 35 hours total, comprised of the following docket entries: 0.2
hours (August 23), 5.5 hours (September 23), 5.4 hours (September 24), 14.5 hours
(September 25), 4.8 hours (September 26) and 4.6 hours (September 27)
(c) Michael O’Keefe (student-at-law) 14.3 hours total, comprised of the following
docket entries: 0.3 hours (August 22), 2.4 hours (August 23), 4.2 hours (August 26)
and 7.4 hours (August)
[104] The hourly rates charged to the plaintiffs for the time of the lawyers and students are as follows: Ian Matthews (partner) - $890; Alicia Krausewitz (associate) - $525; and Michael O’Keefe (student-at-law) - $300. HST would also be applied to these amounts when invoiced to the Plaintiffs.
[105] In addition, the plaintiffs have incurred disbursements associated with the court reporter’s invoice from Veritext in connection with the defendants’ non-attendance at their September 26-27, 2024 examinations. These disbursements total $1,647.54. Copies of the invoices received from Veritext for the cancelled September 26th and 27th examination dates are in the record before me.
[106] In total, the plaintiffs are claiming $14,334.05 inclusive of HST, for costs thrown away in terms of preparing for the examination for discovery of the plaintiff which was cancelled by defence counsel on one business day’s notice. The plaintiffs are also seeking costs thrown away in the amount of $39,389.54 inclusive of HST, with respect to costs thrown away relating to the failure of the defendants to attend at their scheduled examinations for discovery on September 26th and September 27th, 2024.
[107] The plaintiffs argue that all of their preparation for three days of examinations is wasted and will need to be completely redone.
[108] The examination for discovery of the plaintiff, Dr. Adams was scheduled to proceed on Tuesday August 27th 2024. Counsel for the defendant cancelled the examination on Friday August 23rd, 2024 at 3:45 pm, with the cited reason being that the defendants were unable to attend to observe the examination.
[109] While the plaintiff’s examination was cancelled on one business day’s notice, it is not uncommon for examinations for discovery to be cancelled and often at the last minute. It is however, uncommon for counsel to seek significant costs thrown away relating to a first cancelled examination for discovery.
[110] Moreover, it cannot be overlooked that had this motion not been brought, the plaintiff’s examination was scheduled to proceed on October 4th 2024, only six weeks after the August 27th date which was cancelled. In my view, the bulk of the preparation work completed for the August 27th examination date, would not have had to be re-done with the passage of time of only six weeks.
[111] Subrule 34.15(1)(d) of the Rules of Civil Procedure provides the court with authority to “make such other order as is just” which would include making an order for payment of costs thrown away relating to the last minute cancellation of Dr. Adams’ examination for discovery by the defendant. However, costs are always discretionary, and I am not convinced that I should exercise my discretion to do so in this case. In my view, costs relating to the examination for discovery of the plaintiff Dr. Adams are more properly determined in the ordinary course at the conclusion of this litigation. (Maalouf v. Bayer Inc., 2023 ONSC 4875)
[112] However, in my view, the evidence in the record before me does support a finding that costs thrown away should be awarded with respect to the failure of the defendants to attend at their examinations for discovery.
[113] The one decision relied upon by the plaintiffs in support of their request for costs thrown away is the Caldwell decision, which relates to costs thrown away following an adjourned trial. The defendants also referred the court to one decision, Maalouf v. Bayer Inc., 2023 ONSC 4875 (“Maalouf”) in support of their position that any assessment of costs thrown away should be made in the cause, when, at that time, it can be properly determined what preparatory work was in fact wasted.
[114] In Maalouf, supra, the defendant was granted an order compelling the plaintiff to re-attend at an examination for discovery after she had improperly refused to answer questions when previously examined, causing an adjournment. The defendant claimed costs thrown away in the approximate amount of $3,700 in preparation for the adjourned examination. The court held that in the circumstances of the case, it was not appropriate to make an order for costs thrown away:
There will no doubt be some redundant time spent by Bayer Inc. when preparing
for the continued examinations. However, in the circumstances of this case, I think the
actual impact is better assessed after the fees and disbursements have been incurred. I
am not in a position to agree that the claimed five hours of time is an accurate assessment
of preparation time that was lost or will be duplicated. It follows that costs of Ms. Maalouf's examination for discovery are more properly determined in the
ordinary course at the conclusion of litigation. At that time, it will be open to Bayer
Inc. to argue that it should recover costs of the examination for discovery, in whole or
in part, in any event of the cause. Costs of the examination for discovery shall
accordingly be reserved to disposition of this action. (Maalouf, supra, at para. 25)
[115] I agree with the defendants’ submissions that in general, it is more appropriate to consider the issue of costs thrown away relating to cancelled or missed examinations for discovery at the conclusion of litigation. (Maalouf, supra). Indeed, the court cannot, and should not, entertain a costs motion every time a lawyer and/or his/her clients fail to attend at a scheduled examination for discovery.
[116] However, based on the evidence in the record before me, and in light of the specific factual circumstances present in the immediate case, I find that the plaintiffs should not be required to presently bear the entire financial burden associated with these missed examinations as they await the outcome of this litigation.
[117] The plaintiffs are seeking costs thrown away in the amount of $39,389.54, inclusive of HST, relating to the failure of the defendants to attend at their scheduled examinations for discovery on September 26th and September 27th, 2024.
[118] Significantly, nothing in the supporting affidavit of Ms. Kheiritash details how the time claimed was incurred and why it should all be viewed as being wasted or “thrown away”. For example, the fact that two lawyers and one student spent an aggregate of 63 hours preparing for the examinations for discovery of the defendants does not necessarily lead to the conclusion that there was no value to that time and that they will ultimately be required to spend a further 63 hours when the examinations for discovery of the defendants do proceed.
[119] The evidence in the record before me does not support the plaintiffs’ position that all of the claimed preparation time represents wasted time for which there is no future value. I accept the defendants’ submissions that the plaintiff appears to be advancing a total cost claim for all preparation time, without any consideration for what portion of the time /work will be usable again. In this regard, common preparatory work for examinations for discovery such as preparing summaries of the materials in the parties’ affidavits of documents, preparing document briefs, tabbing and highlighting documents, preparing lists of questions and general preparation notes, all represent work which will likely be of use again when the examinations do proceed.
[120] As previously noted, calculating costs thrown away is not an easy task and it is an intuitive rather than scientific process. (Caldwell v. Caldwell, 2015 ONSC 7715 at paras. 8-13)
[121] The amount claimed in this litigation is not insignificant, with the plaintiffs seeking damages in excess of $2 million. Moreover, based on a review of the Discovery Plan it is clear that this case involves significant documentary productions and issues of some complexity. While the aggregate or total time of 63 hours spent to prepare for the two days of examinations for discovery is on the high side, I accept that plaintiffs’ counsel spent the time claimed preparing for these examinations.
[122] However, the evidence submitted by the plaintiffs in support of the claim for costs thrown away is quite limited in terms of explaining what work will need to be duplicated and what work can be re-used once the examinations do proceed in the future.
[123] Ultimately, considering all of these factors, I am satisfied that a fair and reasonable amount to order for costs thrown away relating to preparation that has been wasted and that will have to be repeated, is in the amount of $15,000 for fees inclusive of HST.
[124] With respect to claimed disbursement relating to the court reporter’s invoice, the evidence in the record before me confirms that BLG did not contact counsel for the defendants when he failed to attend at the September 26th examination. It is unclear if the court reporter’s September 27th fee might have been waived had the court reporter been notified on September 26th that the examination of September 27th would not be proceeding. Without this evidence in the record before me, I am not prepared to award reimbursement for the court reporter’s invoice relating to the September 27th 2024 missed examination.
[125] I am prepared to accept that the disbursement relating to the court reporter’s invoice from the September 26th 2024 missed attendance is wasted due to the conduct of the defendants, such that total costs thrown away payable by the defendants to the plaintiffs, shall be in the amount of $15,000 inclusive of HST for fees plus disbursements of $823.77 which represents the court reporter’s fee for the missed examination of September 26th, 2024.
[126] Accordingly, the defendants shall pay to the plaintiffs their costs thrown away including fees, disbursements and HST, in the amount of $15,823.77, payable within 30 days of the release of this decision.
COSTS OF THIS MOTION
[127] Brief costs submissions were made on the hearing date of this motion as it was initially understood that no offers had been made. However, in answer to a question posed by the court, there was an issue which arose relating to the inadvertent disclosure or partial disclosure by counsel for the defendants of an offer to settle which may have been made prior to the motion being heard. I therefore disregarded these submissions when deciding this motion.
[128] Costs of a step in a proceeding are in the discretion of the Court, as set out in section 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider in exercising such discretion. The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), at paras. 24, 26, and 37-28).
[129] The defendants were largely successful on this motion. The plaintiffs had some moderate success relating to their request for costs thrown away and the defendants have been ordered to re-attend at their examinations for discovery. In my view, given the circumstances surrounding the bringing of this motion and the ultimate result of the motion, the parties should be able to come to an agreement on costs.
[130] If counsel are unable to agree on the issue of costs and wish to make written submissions, in addition to the costs outlines provided, they may do so by the following schedule: counsel are to provide written submissions (no more than three pages in length) on a seven day (business days) turnaround from the date of issue of this decision, commencing with the plaintiffs. Reply submissions shall be provided within seven days of receipt of the plaintiffs’ submissions. Counsel are also asked to include further copies of any costs outlines relied upon. If the parties do agree on the issue of costs, they are asked to advise the court. Written submissions may be directed to me via my ATC, Gobiga Amalakumar at Gobiga.Amalakumar@ontario.ca
ASSOCIATE JUSTICE G. ECKLER
DATE: December 31st 2024