Endorsement

COURT FILE NO.: CV-18-00077301-0000
DATE: February 12, 2025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.B., Plaintiff
AND: DE MARINIS et al, Defendants
BEFORE: Associate Justice K. Perron
COUNSEL:

• David Silver, for the Plaintiff
• Stephen Cavanagh, for the Defendant, Mariano De Marinis
• Robert Ruddock, for the Defendants, 8537283 Canada Inc. c.o.b. as Kavali’s Nightclub and Aydin Kharaghani
  HEARD: October 15, 2024

Introduction

[1] This is a status hearing. The Plaintiff, A.B., must show cause as to why the action should not be dismissed for delay. The applicable test was set out in Faris v Eftimovski which requires the Plaintiff to demonstrate: “first, that there is an acceptable explanation for the delay in prosecuting the action; and second, that if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice” [1]. The test is conjunctive and requires a plaintiff to prove both elements of the test [2].

The Factual and Procedural Context

[2] The action seeks damages for sexual assault alleged to have been committed by the Defendant, Mariano De Marinis (“De Marinis”), on February 15, 2015. Following a first criminal trial, De Marinis was convicted on November 16, 2017 and sentenced on May 1, 2018. De Marinis appealed his conviction and sentence.

[3] Prior to the criminal appeal being heard, the Statement of Claim in this civil action was issued on July 31, 2018. After requesting indulgences, the Defendants delivered their Statements of Defence at the end of November 2018. Following communications between counsel regarding the timing of productions and examinations for discovery, the parties ultimately consented to a timetable which was endorsed by Master Kaufman (as he was then) at a case conference on January 23, 2019 (the “Timetable Order”). A.B. and De Marinis produced their documents on February 28, 2019 in accordance with the Timetable Order. The Defendants, 8537283 Canada Inc. c.o.b. as Kavali’s Nightclub and Aydin Kharaghani (the “853 Defendants”), produced their documents on March 6, 2019. There have not yet been any examinations for discovery or a mediation. After the Defendants indicated that they would not consent to an extension of the Timetable Order on or about May 2024, A.B. requested a case conference. At the case conference on July 4, 2024, this status hearing was scheduled.

[4] With respect to the De Marinis’ criminal matter, the appeal from the first trial was heard on November 27, 2019. On May 14, 2020, the Court of Appeal set aside De Marinis’ conviction and ordered a new trial. The second trial commenced on October 18, 2021 and concluded on July 11, 2022. In reasons issued on October 12, 2022, De Marinis was acquitted.

The Parties’ Positions

[5] A.B.’s position is that she has always intended to pursue her claim and has diligently prosecuted the action. She provides three reasons explaining why the action has not yet been set down for trial: 1) the delay in the criminal proceedings involving De Marinis; 2) the defendants’ conduct and positions; and, 3) delay with the production of Wagg documents.

[6] A.B.’s explanation for the delay is rooted in her position that the parties agreed to “effectively stay” the action because the parties were waiting on the Wagg productions to conduct examinations for discovery, and those productions could not be obtained until the criminal proceeding was over. A.B. also submits that the Defendants will not suffer any non-compensable prejudice if she is permitted to continue the action as the parties have already exchanged affidavits of documents, documents have therefore been preserved and the evidence from the criminal proceeding, including the evidence of potential witnesses, has also been preserved.

[7] De Marinis’ position is that A.B. has failed to provide an acceptable explanation for the delay and failed to produce evidence of any agreement between the parties to stay the action pending the conclusion of De Marinis’ second criminal trial. De Marinis submits that A.B. had many options available to her but she and/or her lawyers deliberately decided to place the matter on hold for three years. De Marinis does not rely on “case-specific prejudice” but submits that there is non-compensable prejudice inherent in the long delay alleged in this case. He also submits that A.B. has a remedy against her lawyers if the action is dismissed and this is a factor that the Court can consider at this hearing.

[8] The 853 Defendants also take the position that A.B. has failed to provide an acceptable explanation for the delay and deny that there was an agreement to hold the action in abeyance pending the second criminal trial. The 853 Defendants submit that the criminal proceeding and delay in obtaining the Wagg productions did not prevent A.B. from moving her action forward, in particular against the 853 Defendants, as those defendants were not parties to the criminal proceedings and A.B.’s evidence is that she always intended to proceed with the action regardless of the outcome of the criminal proceeding. They deny that they are to blame for the delay and allege that A.B. stymied their motion for summary judgment. With regards to prejudice, the 853 Defendants take the position that A.B. has focused her argument entirely on De Marinis and has failed to establish that the 853 Defendants would not suffer prejudice if the action continued.

[9] In his factum, De Marinis also challenged the admissibility and/or relevance of certain evidence submitted by the Plaintiff on this motion and alleged that there was extensive interference with the cross-examinations of the three deponents as well as refusals to answer proper questions. As a preliminary matter at the hearing, De Marinis also objected to the delivery of answers to undertakings/advisements delivered by the Plaintiff last Friday as well as caselaw responding to the evidentiary issues. De Marinis submitted that if the answers/documents had been provided previously, he would have asked further questions on cross-examination and/or made different arguments in his factum. That said, De Marinis did not request an adjournment or seek leave to conduct further cross-examinations.

[10] As part of my analysis, I have considered that the Defendants did not have an opportunity to test the answers to undertakings/advisements during cross-examinations and I have also considered any admissibility issues and/or weight to be given to the evidence as applicable. With respect to concerns about the different record filed with the Court (approximately 5400 pages per De Marinis’ counsel) as compared to the condensed record uploaded to Case Center (approximately 500 pages), I confirmed that the record that was filed with the Court is the official record for purpose of this hearing. At a previous case conference, due to the volume of the filed materials, I previously directed that a condensed record be uploaded to Case Center as well as compendiums by each party as necessary – all of which I have reviewed as part of my review of the materials.

Litigation History

[11] The correspondence exchanged between the parties provides important context regarding the manner in which the action unfolded. A.B. also relies on some of the correspondence to support her position that the parties agreed to an “effective stay” pending the outcome of De Marinis’ second criminal trial. While A.B. identified five specific exchanges as part of the answers to advisements, those emails were previously attached as exhibits to Doreen Navarro and Julie Mouris’ affidavits and were therefore always part of A.B.’s record for this hearing. Notwithstanding De Marinis’ objections to some of the evidence, his counsel also conceded that the correspondence between counsel is properly before the Court except that certain statements set out therein should not be admitted for the truth of their contents (i.e. advice of discussions between counsel without corroborating affidavit evidence of those conversations). Subject to that caveat, which I agree with, the correspondence between the parties’ counsel is therefore properly before the Court.

[12] Before turning to my analysis, I will therefore provide a more fulsome summary of the litigation history with reference to some of the key correspondence.

(The detailed litigation history, as in the original, is preserved here. For brevity, see the original text above for the full list of points a. through gg.)

[13] The Defendants did not file any responding affidavits but the moving party’s affiants were cross-examined. A.B.’s evidence is that: she has always intended to prosecute the action; the result of the 2nd criminal trial did not change that intention; she has been frustrated by the delays in the action; she is motivated by a desire for justice and to prevent other women from having a similar experience; and, she wants to proceed with the action as expeditiously as possible.

Law and Analysis

[14] The first part of the Faris test requires a contextual approach guided by the Reid factors such that the Court determines the outcome that is just in the circumstances. The Reid test considers the following: has the plaintiff provided a satisfactory explanation for the delay, is the delay caused by inadvertence, did the plaintiff move promptly to bring the motion/hearing and has the plaintiff demonstrated that the defendants would not be prejudiced in presenting their case to trial. [3] A.B. does not rely on inadvertence and the Defendants did not raise any issues with delay in bringing this hearing. The outcome of this hearing therefore turns on the factors regarding the explanation of the delay and the element of prejudice.

[15] In determining whether or not to end an action or allow it to proceed, a judge must also balance two fundamental underlying policy considerations: a) that civil actions should, if possible, be decided on their merits rather than terminated on procedural grounds [4] and, b) that actions should be resolved in a timely and efficient manner in order to maintain public confidence in the administration of justice and this requires “all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice” [5].

[16] While the plaintiff bears the primary responsibility for the conduct of the action, the defendant’s conduct in the litigation is a relevant circumstance including circumstances where a defendant resists to move the matter along or where the defendant’s conduct reflects a contentment with the pace of the litigation [6].

Is there a reasonable explanation for the delay?

[17] The first criteria relates to whether or not A.B. has provided an “acceptable”, “satisfactory” or “reasonable” explanation for the delay. On similar motions, in emphasizing that a contextual approach is warranted, the Court of Appeal has stated that the exercise is “not a ‘blame game’, where counsel should be required or encouraged to take a defensive stance and justify their conduct of the litigation on a month-by-month basis” (Carioca’s v Canadian Pacific Railway Limited, 2015 ONCA 592 at paras 45-46). Appellate courts have found that it is an error to apply too exacting a standard when considering the explanations provided and that the explanations need not be compelling, convincing or cogent (Kupets v Bonavista Pools Limited 2015 ONSC 7348 (Div. Ct.) at paras 18-19; Carioca’s v Canadian Pacific Railway Limited, 2015 ONCA 592 at paras 52).

[18] A.B. submits that the only delay I need consider in this case is any delays after February 2024. The Plaintiff relies on the Defendants’ alleged agreement to the timetable order in February 2024 in support of her argument that any delay up to February 2024 was vitiated and relies on the Stokker [7] case among others to support this position. I am not satisfied that the principle set out in the Stokker case applies to the circumstances of this matter. I will therefore consider the explanation for the material period of alleged delay that is at issue in this case which is from October 2020 to approximately July 2023.

[19] As referenced above, the root of A.B.’s explanation for the delay is that the parties agreed to “stay” the action pending the completion of De Marinis’ criminal matter as the parties required the Wagg productions before proceeding with examinations for discovery. The Defendants do not dispute that there was such an agreement pending the outcome of De Marinis’ appeal from the first criminal trial. The main point of contention is that they dispute any such agreement after the Court of Appeal ordered a new trial in May 2020.

[20] In my view, A.B. has provided a satisfactory explanation for the delay.

[21] Although there was some disagreement between the parties at the outset, it is clear based on the exchanges between counsel that by the Spring of 2020, the parties were in agreement that before proceeding with the examinations for discovery in this action, they required the Wagg productions. Based on the communications, the parties agreed that the Wagg productions were required not only to ensure that the examinations were productive but also to avoid having to return for further examinations after the Wagg productions were received. This outcome is exactly the position that De Marinis advocated for from the outset of the civil action. In addition, the communications between the parties also support that A.B. and the 853 Defendants agreed that the Wagg productions were required before 853’s summary judgment motion.

[22] The Defendants are correct that this “agreement” was never expressly confirmed in writing between the parties after the Court of Appeal ordered the new criminal trial in May 2020 and that A.B. never brought a motion seeking to stay the proceedings. There is no doubt that either of these steps would have been prudent in the circumstances. However, in my view, the communications between the parties and MAG regarding the Wagg orders make it clear that the parties understood that MAG would not release the Wagg productions until the final outcome of the criminal proceedings, including a potential re-trial and further appeals. MAG raised legitimate concerns about releasing the productions before the criminal proceedings were fully resolved, including to ensure that fairness in the criminal proceedings was maintained – something that De Marinis no doubt fully appreciated and supported. The Defendants submit that there is a disjunction between the Wagg orders and the steps in the civil action but I do not agree. In my view, there is a direct link between the Wagg orders and proceeding with examinations for discovery because the parties indicated they required the Wagg productions in order to proceed with examinations.

[23] All of the parties consented to the terms of each of the Wagg orders. The parties may not have fully appreciated the potential duration of the delay resulting from the criminal proceeding when the first Wagg order was consented to in February 2020 given that the outcome of De Marinis’ appeal was not yet known. However, by the time they consented to the Wagg order dealing with the A.V. files in September 2020, the parties were fully aware that a new criminal trial would take place. The Defendants did not protest or raise any concerns about potential delays, nor did they suggest at that time that the agreement should be revisited such that discoveries or 853’s motion for summary judgment should proceed. In my view, the absence of any such protestation confirms that the agreement remained in place after the new criminal trial was ordered and that the terms of the agreement were understood. At a minimum, it signals that the parties were content to await the outcome of the criminal proceedings in order to have the Wagg productions before any examinations for discovery took place in accordance with their previous positions.

[24] The Defendants submit that they never agreed to hold off on the examinations (or the advancement of the civil action) in perpetuity and that it wouldn’t make sense for the agreement to have been open-ended in terms of its duration because what if it took 10 years for the criminal matter to conclude? The Defendants also submit that the parties never contemplated a delay of this duration when they agreed to wait for the Wagg productions. While the Defendants are correct that the “agreement” did not have a specific duration, this argument cuts both ways; there is certainly no correspondence to suggest that the agreement was only valid until the Court of Appeal rendered its decision. Furthermore, the criminal proceedings did not take 10 years to conclude. There is no evidence that De Marinis’ new trial took an inordinate amount of time to unfold.

[25] The facts of this case are therefore distinguishable from the facts in the Home Town [8] case where the Court held it was not appropriate to await the outcome of another proceeding that was “marred by delays”. The facts are also distinguishable from the case of Business Development Bank of Canada v. I Inc. [9] as this is not a case where the Plaintiff made a unilateral decision to hold this action in abeyance. The Defendants submit that, in accordance with the Court’s findings in the BDC case, A.B. could have done a number of things to advance the action while the parties awaited the Wagg documents such as requesting a status hearing pursuant to Rule 48 before the expiry of the 5-year deadline. In view of my finding that the parties agreed to wait for the Wagg productions prior to proceeding to examinations for discovery, it is not clear what A.B. could have done to move the action forward. Yes, she could have taken procedural steps to confirm the parties’ agreement such as seek an order for a stay or to amend the timetable. But in my view, that was not required given the agreement.

[26] Furthermore, the test on this motion is not to hold the plaintiff to a standard of perfection or critique the decisions made by counsel. I must only be satisfied that A.B.’s explanation for the delay is reasonable. It is also somewhat disingenuous for De Marinis to suggest that A.B. could have taken steps such as a status hearing, especially given that De Marinis takes the position that the court’s recommencement of issuing dismissal orders in May 2024 is what triggered him to withdraw his agreement in principle to the draft timetable in February 2024. I also note that any party may bring a motion for a status hearing and it is not incumbent on a plaintiff to do so. The suggestion by the 853 Defendants that A.B. could have proceeded with examinations for discovery or pursued the action only against them is also disingenuous in view of their response in October 2023 that it was premature to proceed with examinations in the absence of the Wagg productions.

[27] I will briefly address the period between Justice Bell’s acquittal of De Marinis in October 2022 and the delay of about nine months in A.B.’s counsel notifying MAG about the outcome of the trial, which was required to trigger the Wagg productions. The explanation provided for this delay is that A.B.’s counsel reviewed the evidence from the second trial, including the transcripts of that proceeding, and that they wanted to conduct some research. A.B.’s counsel allege that they did so as quickly as possible in view of their schedules, including a parental leave by Ms. Mouris. In terms of a general timeline, transcripts of the criminal proceeding were requested in early February 2023 and received by March 7, 2023; transcripts were reviewed until approximately May 2023 and research was conducted until about August 2023. The answers to undertakings suggest that approximately 121 hours was docketed by A.B.’s lawyers and students from October 1, 2020 to August 2023. A.B.’s counsel also explained that they didn’t find out who had assumed carriage of this matter at MAG until September 7, 2023.

[28] The Defendants challenge these explanations and, as mentioned above, did cross-examine the affiants on their affidavits. The Defendants submit that there is no causal connection between the review of evidence in the criminal proceeding and delays in the civil trial, especially in view of A.B.’s evidence that she intended to pursue the civil matter regardless of the outcome of the criminal proceedings. They further point to various admissions by A.B.’s counsel that the file was adequately resourced.

[29] The explanations provided during this nine-month period are not without question marks. For example, even if a review of the evidence in the criminal matter was required, A.B.’s counsel could have notified MAG of the outcome of the criminal proceeding in late-2022 once the criminal appeal period had lapsed so that MAG could at least start to gather the Wagg productions. That said, in considering the overall circumstances I am satisfied that the explanations provided during this nine-month period are also satisfactory. In addition, this delay of nine months would not in any way warrant the dismissal of the action when considering the overall context. Furthermore, there is no evidence to suggest that A.B. is accountable for her counsel’s delay in notifying MAG to request the Wagg productions. [10]

[30] The Defendants’ responses in the Fall of 2023 and early 2024 are also material when considering the reasonableness of the explanation for delay. When A.B.’s counsel proposed a timetable to move the matter along, the 853 Defendants responded by suggesting that examinations for discovery were premature as the Wagg productions were not complete (though some documents had been received). De Marinis’ new counsel suggested a series of fresh steps, including the amendment of pleadings. None of the Defendants raised any concern about the delay or expressed surprise that A.B. was moving forward with the action. In addition, both sets of Defendants did, in my view, agree to the timetable proposed by A.B. in February 2024 subject only to there needing wiggle room in the timetable if issues arose with productions which would necessitate an adjournment of the examinations. This is further reinforcement of the parties’ “agreement” that they only wanted to proceed with examinations once all productions, including Wagg productions, had been exchanged. The Defendants’ reaction in late-2023 and early 2024 is entirely consistent with the explanations for the delay offered by A.B. and that there was an agreement between the parties to await the conclusion of the criminal proceedings and the receipt of the Wagg productions to move the civil action forward.

[31] Even if I am wrong in finding that there was such an agreement between the parties, there does not need to be an agreement for me to find that the explanations offered by A.B. for the delay are satisfactory. All that is required is an acceptable explanation for the delay. In the overall context, A.B.’s belief in and of itself that there was such an agreement would, in my view, be entirely satisfactory to explain the delays.

Prejudice

[32] The last Reid factor and the second part of the test considers whether the defendant’s ability to defend the action has been prejudiced by the plaintiff’s delay and “not as a result of the sheer passage of time” [11]. While a plaintiff has the onus of demonstrating that a defendant would not suffer any non-compensable prejudice, and a defendant is not required to offer evidence of actual prejudice, the conduct of a defendant should be considered by the court including whether the defendant’s actions “are consistent with a finding of prejudice” [12]. A defendant’s passivity or “lack of display of any sense of urgency undercuts the claim of actual prejudice” [13].

[33] De Marinis does not rely on “case-specific prejudice” but relies on the prejudice “inherent in long delays” and that the more time that passes, “the more difficult it is to defend the case. Memories fade and even if the documents are not lost, their significance becomes shrouded” [14]. De Marinis also submits that while there is no limitation period on sexual assault claims, those actions are not immune from the principles requiring expeditious justice, especially since the Rules now provide that an action must be set down within five years rather than the previous two-year deadline [15]. De Marinis highlights that A.B. did not commence the action until almost three and a half years after the alleged assault and that as at the date of the status hearing, more than nine and a half years will have passed since the alleged incident. De Marinis submits that this case was “dead on the vine” and as there was no resistance by the Defendants, the Defendants’ conduct is not a relevant factor [16].

[34] The 853 Defendants submit that A.B. has failed to meet her burden as against them on the element of prejudice. In particular, they submit that although A.B. argues that the evidence from the criminal proceedings has been preserved, A.B. has not made any effort to establish what evidence has been preserved as against the 853 Defendants who were not parties to the criminal proceedings. In their submissions at the hearing, the 853 Defendants also alleged that there may be potential prejudice to them, such as witnesses not being available etc. The latter argument can be easily disposed of since the 853 Defendants did not produce any evidence of actual or case-specific prejudice.

[35] I am satisfied that A.B. has met the onus of establishing that the Defendants would not suffer any non-compensable prejudice. Affidavits of documents have been exchanged and evidence from the criminal proceeding has been preserved, including testimony from A.B., De Marinis and other potential witnesses that were interviewed as part of the criminal proceeding. The Wagg productions, including video surveillance from Kavali’s, will be available to the parties. In fact, the judge from the first criminal trial noted that there was a “remarkable degree of precision available because communication by text messages and social media has been preserved and because there are time stamped video recordings from the surveillance cameras located in the bar”. These findings are relevant to all of the Defendants, including the 853 Defendants, to satisfy the Plaintiff’s onus.

[36] In addition, as A.B. pointed out during the hearing, the 853 Defendants plead in their Statement of Defence that they investigated the incident as part of the club’s standard practices. Based on their own pleading, the 853 Defendants appear to have preserved the evidence.

[37] Although there was some indication that A.B. may have further documents that weren’t previously produced in her affidavit of documents and/or that there may be requests for further productions, I am satisfied based on the overall evidence that A.B. has met her burden. Also, as indicated above, the Defendants have not produced any evidence of fact-specific prejudice including evidence that some of the relevant documents may no longer be available.

[38] In addition, the Defendants did not display any sense of urgency on the pace of the litigation. From the outset, the Defendants – especially De Marinis – insisted on having the Wagg productions prior to proceeding with examinations for discovery. That position was also adopted by the 853 Defendants, both in respect of discoveries and their potential motion for summary judgment. The Wagg productions could not be produced until the criminal proceedings were fully completed in order to preserve the integrity of the criminal proceeding and protect De Marinis’ rights. The civil action was not “dead on the vine” and A.B. did not deliberately delay the action and was not trying to get a “break” from the action. She was essentially faced with the reality that the criminal proceeding had to take priority and be fully resolved until the next step in the civil action (the examinations) could proceed.

[39] Prior to the Defendants taking the position that the Plaintiff had to bring a status hearing, the Defendants did not raise any concerns about delays or potential prejudice arising from the delays. The Defendants awaited the outcome of the new criminal trial in silence. They never suggested that examinations for discovery should now proceed or that further steps should be taken in the civil action, whether this be to proceed with 853’s motion for summary or otherwise. While I have found that this silence and lack of protestation supports A.B.’s position that the parties had agreed to await the outcome of the criminal proceedings and receipt of the Wagg productions to take next steps, this silence also undercuts any claims of prejudice.

[40] The same conclusion can be reached by examining the Defendants’ responses in the Fall of 2023 and early 2024 when A.B.’s counsel sought to set a timetable for the remaining steps in the action. Not only did the 853 Defendants continue to assert that examinations were premature, but both sets of Defendants agreed to the timetable in February 2024. Contrary to the 853 Defendants’ submissions, the only caveat to the Defendants’ agreement on the timetable was that they may need to further delay the examinations if any “production issues” arose. De Marinis went one step further and suggested that the Plaintiff take further steps in the action. The explanation now offered by De Marinis for resiling from the timetable and insisting that a status hearing take place is not very compelling and contradictory to his position that A.B. could (or should) have brought this status hearing sooner. De Marinis has not produced any evidence to support that if the administrative dismissals weren’t on pause, his response in early January 2024 would have been different. A.B. is also quite correct that if the parties had proceeded with the timetable suggested by her counsel in early 2024, this action would now be ready to set down for trial. Overall, the Defendants’ conduct, responses and positions are inconsistent with any suggestion that they are prejudiced by the delays.

[41] I also agree with A.B.’s submission that in view of the fact that the delays served to protect De Marinis’ rights in the criminal proceeding, it would be unjust in the circumstances to dismiss A.B.’s civil action.

[42] I recognize that this is now a six-and-a-half-year-old action and that the alleged incident occurred in 2015. However, in my view, the delays in this case do not amount to the level of inordinate delays that warrant the dismissal of the action. A fair trial remains possible. A.B. has satisfied the second element of the test.

[43] For the reasons set out above, the Plaintiff’s motion is granted and the action shall proceed.

[44] I have reviewed the draft timetable set out in the Plaintiff’s draft order. The next steps in the action are premised on the Plaintiff bringing a motion to amend the statement of claim but it does not include a deadline to set the action down for trial which is required to avoid any further issues with the administrative dismissal of the action. The parties shall confer to discuss next steps and try to reach agreement on a timetable. The draft timetable should strive to complete all steps such that this matter is set down for trial by early 2026. A consent timetable order may be sent to my attention at Ottawa.associatejudges@ontario.ca for review within 30 days, or alternatively, if the parties do not agree, they may request a case conference before me to be scheduled at my earliest availability. In the meantime, this action shall not be dismissed by the Registrar pursuant to Rule 48.14. I have also signed the draft Order for the remaining Wagg productions and that Order shall be issued.

Costs of the Status Hearing

[45] The Plaintiff seeks costs on a partial indemnity scale totaling $72,980.94. The Plaintiff submits that she was forced to put her best foot forward and assemble a comprehensive record, including the evidence from the criminal trials (i.e. transcripts) and the parties’ productions (i.e. the affidavits of documents) as the Defendants refused to explain on what basis they were opposing the status hearing. A.B. also submits that this motion was important as it involves the continuing of the action. A.B. also points to the fact that the Defendants resiled from their previous agreement to a timetable in February 2024, that they should not have resisted the motion in the absence of prejudice and that this was a hotly contested motion involving cross-examinations. The Plaintiff also relies on a Rule 49 offer made in July 2024 which attempted to resolve the matter without a hearing.

[46] The partial indemnity costs sought by De Marinis at the hearing total $64,071.58 inclusive of HST and disbursements. De Marinis submits that he should be allowed costs even if the action is allowed to proceed and relies on various cases including Koepcke v Webster [17] and Business Development Bank of Canada v I Inc. [18] in support of his position. In those cases, the Court found that it was appropriate for the defendants to oppose the motions and compel the plaintiffs to show cause as, for various reasons, the Court was providing an indulgence to the plaintiffs by allowing the actions to proceed. In the alternative, De Marinis submits that if the action proceeds, there should be no costs of this motion. De Marinis also relies on the voluminous nature of the Plaintiff’s productions on this motion and the conduct of the Plaintiff’s counsel on cross-examinations. A reminder that the size of the Plaintiff’s record went from approximately 5,400 pages (materials as filed) to about 500 pages (condensed materials uploaded to Case Center at my directions). De Marinis submits that this is indicative that the Plaintiff filed significant irrelevant materials in support of the hearing.

[47] The costs sought by the 853 Defendants if they had been successful at the hearing are $14,824.61 on a partial indemnity scale inclusive of taxes and disbursements. They also rely on the voluminous record of the Plaintiff, the conduct during cross-examinations and the BDC case. They submit that it was reasonable for the Defendants to require that A.B. show cause and that it would be unreasonable to require the Defendants to pay costs if the Plaintiff was granted an indulgence.

[48] I do not agree with the Defendants that this is a case where I am granting an “indulgence” to the Plaintiff. In view of my findings above, this case is distinguishable from the caselaw, including the Koepcke case where the Court found that the plaintiffs had “failed to share their plans to hold the action in abeyance”. I am also not convinced that it was appropriate for the Defendants to contest the motion in view of the parties’ agreement to await the Wagg productions and outcome of the criminal proceedings before completing discoveries or in view of the fact that in February 2024, the parties had essentially agreed to a timetable to move this action forward. In the circumstances, I see no basis for departing from the usual practice that the successful party should be granted its costs.

[49] That said, and notwithstanding that De Marinis seeks costs in a similar range, I have concerns with the quantum of costs sought by the Plaintiff in keeping that this was a status hearing that, while important to all parties, did not raise complex issues. Based on A.B.’s costs outline, there were multiple timekeepers involved in the matter which increases the risk of duplication of effort and puts into question whether the work was allocated in the most cost-effective manner. The voluminous nature of the record could have been reduced from the outset. It was not necessary for the Plaintiff to include all of the transcripts from the criminal proceedings plus all documents exchanged in the civil action to prove that all evidence was preserved. Also, given that the Plaintiff has the burden on this motion, I do not agree that it was incumbent on the Defendants to articulate the basis for their opposition and that in the absence of same, all of the documents needed to be included in the record. That said, A.B. did attempt to resolve the matter and sent a detailed letter in support of her position. I also question whether cross-examinations were necessary.

[50] In view of all of the circumstances, and pursuant to the exercise of my discretion under section 131 of the Courts of Justice Act and the principles set out under Rule 57, I am of the view that costs in the amount of $20,000 all-inclusive payable by the Defendants, on a joint and several basis, to the Plaintiff are appropriate.

Associate Justice K. Perron
Date: February 12, 2025

Cited Authorities

[1] Faris v Eftimovski, 2013 ONCA 360 at paragraph 32; Henderson v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387 at paragraph 6.
[2] Martellacci v. Pitney Bowes of Canada Ltd., 2024 ONSC 320 at para 5.
[3] Henderson v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA at paras 7 and 10.
[4] H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173 at paras 25-27.
[5] Carioca’s Import & Export Inc. v Canadian Pacific Railway Limited, 2015 ONCA 592 at para 53 citing Hryniak v Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87 at para 32; see also H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173 at paras at 25-27.
[6] H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173 at para 23; Carioca’s Import & Export Inc. v Canadian Pacific Railway Limited, 2015 ONCA 592 at para 53; American Environmental Container v Kennedy, 2022 ONSC 1353 at para 40; The Corporation of the City of London v. Osler Hoskin & Harcourt LLP, 2016 ONSC 2835 at paras 22-25.
[7] Stokker v Storoschuk, 2018 ONCA at paras 5-7.
[8] Home Town v Levesque, 2020 ONCA 349.
[9] 2013 ONSC 1749
[10] Maclaser Printing Inc. v Crunch Media Solutions Inc., 2024 ONSC 3888, at para 43.
[11] Cedrom-Sni Inc. v Meltwater Holding, 2017 ONSC 3387 at para 6(8); MDM Plastics Ltd. v Vincor International Inc., 2015 ONCA 28 at para 25; Carioca’s Import & Export Inc. v Canadian Pacific Railway Ltd., 2015 ONCA 592 at para 57.
[12] Carioca’s Import & Export Inc. v Canadian Pacific Railway Ltd., 2015 ONCA 592 at paras 49-50; MDM Plastics Limited v Vincor International Inc., 2015 ONCA 28, at paras 33-37.
[13] H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173 at para 42; Carioca’s Import & Export Inc. v Canadian Pacific Railway Ltd., 2015 ONCA 592 at paras 53-54; Curlew Gardens Development Inc. v Terraprobe Inc., 2023 ONSC 5531 at para 45.
[14] Langenecker v Sauvé, 2011 ONCA 803 at para 11; Beshay v Labib, 2024 ONCA 186 at para 27
[15] R.A. v R.D.S., 2011 ONSC 7095 at para 26; Beshay v Labib, 2024 ONCA 186 at paras 12, 27 and 31; Henderson v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387 at para 13.
[16] 1196158 Ontario Inc. v 6274013 Canada Limited, 2012 ONCA 544 at paras 27-30.
[17] 2012 ONSC 357.
[18] 2013 ONSC 1749.