Ontario Superior Court of Justice

Court File No.: CV-22-23
Date: 2025-04-02

Between

Paula Boutis
Plaintiff/Moving Party
Counsel: S. Amad

-and-

The Corporation of the County of Norfolk, The Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp and Jason Burgess
Defendants/Responding Parties
Counsel for The Corporation of the County of Norfolk and The Board of Health for Haldimand-Norfolk Health Unit: C. Dockendorff and L. Freitag
Counsel for Kristal Chopp and Jason Burgess: C. Bennett, K.C.

Heard: In writing

Costs Endorsement

Justice M. Valente

Overview

[1] The Plaintiff brought a motion pursuant to Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) seeking leave to amend her statement of claim. The proposed amendments were extensive. They included five new proposed causes of action: (i) breaches of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”); (ii) intrusion upon seclusion; (iii) intentional interference with contractual relations; (iv) negligent infliction of mental suffering; and (v) defamation. The amendments also proposed the deletion of allegations from the most current version of the issued pleading as well as the addition of new allegations.

[2] In my Endorsement, dated January 27, 2025, I allowed some of the new causes of action to be advanced and some of the new allegations of fact amendments.

[3] In my January Endorsement, I also invited the parties to provide me with written submissions in the event that they were unable to agree on the costs of the Plaintiff’s pleadings motion as well as the scale of costs to which the Defendants are entitled to be compensated as a result of the approved pleadings amendments.

[4] I now have the parties’ written submissions, and this is my ruling with respect to the matter of costs.

I. The Costs of the Plaintiff’s Pleadings Motion

Position of the Parties

[5] The Plaintiff seeks her substantial indemnity costs in the amount of $25,410 plus disbursements and HST. The Plaintiff submits that she is entitled to her costs on this higher scale because she was the most successful party on the motion: of the 109 challenged paragraphs, “over 72 of those paragraphs – or 66%” were allowed. In addition, the Defendants failed to beat their joint offer of December 5, 2024 (the “Defendants’ Offer”). Otherwise, the Plaintiff argues that the Defendants’ unreasonable and uncooperative conduct unnecessarily extended the length of the litigation and made it more expensive than it need be. Examples of this conduct include the Defendants’ opposition to amendments to which they had previously admitted in earlier iterations of the statement of claim; their refusal to consent to any amendments; and their delayed delivery on the second day of the hearing of a version of the pleading showing agreed proposed tracked line changes.

[6] The Defendants, the Corporation of Norfolk County (the “County”) and the Board of Health for Haldimand-Norfolk (“BOH”), seek their partial indemnity costs in the amount of $19,425 plus HST. Although these Defendants concede that there was mixed success on the motion as between them and the Plaintiff, they submit that they are entitled to their costs on the lower scale because they consented to many of the proposed amendments and the Defendants’ Offer proposed a reasonable resolution of the dispute. The County and BOH further argue that they are entitled to their costs because the Plaintiff failed to secure a disposition of her motion in terms more favourable than the Defendants’ Offer. The County and BOH also rely on several of the factors stipulated in Rule 57.01(1) of the Rules. These include the complexity of the matter (given the number and nature of the amendments requiring, for example, an assessment of prescription period issues and a line-by-line determination of the draft pleading’s compliance with the Rules); the importance of the matter (the amendments sought the addition of five new causes of action); and the unreasonable conduct of the Plaintiff (discussed below).

[7] The Defendants, Kristal Chopp (“Chopp”) and Jason Burgess (“Burgess”), seek their substantial indemnity costs of the motion in the amount of $28,690 plus HST. They submit that they are entitled to the requested cost award because they should not be responsible for the Plaintiff’s four failed previous attempts to draft her claim especially when no new information was discovered. These Defendants further submit that in rejecting the Defendants’ Offer, the Plaintiff suffered a worse outcome. Not only was the Plaintiff unsuccessful in obtaining several of the newly advanced causes of action and directed to delete all references to alleged defamatory conduct but none of the amendments granted to the Plaintiff impact the potential liability of Chopp and Burgess.

[8] Furthermore, like the County and BOH, Chopp and Burgess rely on the Plaintiff’s unreasonable conduct in prosecuting the motion as a basis for a cost sanction. Specifically, the Plaintiff did not identify her requested numerous amendments on the face of the draft pleading despite this issue being raised by the Defendants at the case conference of December 10, 2024. Although the motion materials were delivered in advance of the originally proposed motion date in June, 2024, the Plaintiff served an amended motion record, adding hundreds of pages of new material, and an amended factum in the days preceding the December, 2024 case conference without identifying the amendments. In addition, notwithstanding the Defendants’ objection to the Plaintiff’s inclusion of new material in the record in violation of the Rules, the Plaintiff delayed the proceeding by attempting unsuccessfully on each day of the hearing to admit the fresh evidence. All of this, the Defendants allege, made the motion more difficult, caused a significant amount of wasted time, and increased the cost of the proceeding.

Guiding Principles

[9] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that “subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and that the court may determine by whom and to what extent the costs shall be paid”.

[10] The factors to be considered by the court, in the exercise of its discretion on costs, are set out in rule 57.01(1).

[11] Rule 57.01(1) provides that on a contested motion, unless the court is satisfied that a different order would be more just, the fixed costs of the motion are to be paid within 30 days.

[12] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes:

i. to indemnify successful litigants for the cost of litigation;
ii. to encourage settlements; and
iii. to discourage and sanction inappropriate behaviour by litigants (Fong v. Chan, [1990] O.J. No. 4600 (ONCA), at para. 24).

[13] Perell J. in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, para. 10 reformulated the purpose of the modern cost rules as follows:

i. to indemnify successful litigants for the costs of litigation, although not necessarily completely;
ii. to facilitate access to justice, including access for impecunious litigants;
iii. to discourage frivolous claims and defences;
iv. to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and
v. to encourage settlements.

[14] The established principle is that, absent special circumstances, costs follow the event (see: Gonawati v. Teitsson, [2002] CarsWellOnt 1007 (ONCA)).

[15] In 1318706 Ontario Ltd. v. Niagara (Regional Municipality), para. 50, the Court of Appeal applied the following statement of principle from Larter v. Universal Sales Ltd.:

In M.M. Orkin, The Law of Costs, 2d ed (Aurora Ont.: Canada Law Book, 1987) at p. 2-13, the author points out that the principle that a successful party is entitled to his costs is of long standing and should not be departed from except for very good reasons. One might depart from the rule if there has been (1) misconduct of the parties, (2) miscarriage in the procedure, or (3) oppressive and vexatious conduct of proceedings.

[16] It is well known that the overall objective in addressing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party (see: Zesta Engineering Ltd. v. Cloutier, para. 4).

[17] The expectations of the parties concerning the quantum of costs is also a relevant factor to consider. The court is required to consider what is “fair and reasonable” having regard to what the losing party could have expected the costs to be (see: Coldmatic of Canada Ltd. v. Leveltek Processing LLC).

Discussion

[18] I disagree with the Plaintiff’s submission that she was more successful than the County and BOH; success was divided as between these parties. While the Plaintiff was successful in amending her claim to include violations of the Code along with a claim in negligence and allegations of various liability, the Plaintiff’s newly advanced torts of intrusion upon seclusion, intentional interference with contractual relations, and negligent interference of mental suffering all failed. Furthermore, although I agreed with the Plaintiff that the proposed statement of claim does not assert allegations that had been abandoned or that conflict with other evidence and does not plead irrelevant facts, I also agreed with the Defendants that all allegations of defamation are to be deleted from the claim together with allegations of similar facts and certain of the Plaintiff’s alleged opinions and beliefs.

[19] On the other hand, I am not persuaded that the County and BOH were more successful than the Defendants’ Offer; the Plaintiff was ultimately successful in advancing various infringements under the Code. Indeed, and to their credit, the County and BOH concede that there was mixed success on the motion as between them and the Plaintiff.

[20] I have reached that same conclusion with respect to the level of success as between the Plaintiff and the Defendants, Chopp and Burgess. I find that success was divided on the motion for the same reasons as I have explained above as between the Plaintiff and the County and BOH. Additionally, I do not accept the submission of Chopp and Burgess that none of the approved amendments impact them. While the approved amendments, such as the allegations of Code violations, may not have direct consequences for the personal liability of either Chopp or Burgess, nonetheless these Defendants cannot permit certain of the newly advanced allegations to go unanswered. Many of these allegations directly impact the reputation, character, and integrity of each of Chopp and Burgess and threaten their personal exposure.

[21] Notwithstanding my finding of divided success, the cost analysis does not end there. First, I find that the Defendants had reasonable grounds to resist the proposed addition of new causes of action to the statement of claim. Second, I also find that the Defendants were more successful than the Plaintiff on the issue of the contested new causes of action. Furthermore, I conclude that the Defendants’ conduct did not unnecessarily extend the length of the motion. Contrary to the Plaintiff’s submission, the Defendants jointly consented to a number of proposed amendments and although it was not until the second day of the motion that the Defendants delivered an agreed version of the impugned statement of claim with tracked line changes, it was never their responsibility to do so. The motion was the Plaintiff’s motion to prosecute. The Plaintiff was responsible to streamline the process by producing the agreed tracked line changes to the statement of claim; most especially in light of my direction at the December 10, 2024 case conference.

[22] I have also determined that the Plaintiff needlessly increased the costs of the motion. Apart from failing to clearly identify her requested amendments to the statement of claim, the Plaintiff delivered an amended motion record with a significant number of new documents as well as an amended factum shortly before the argument of the motion without identifying the changes to the materials until directed to do so by me at the December 10, 2024 case conference. The Plaintiff’s delivery of revised materials resulted in additional preparation time for the motion given that the parties had exchanged motion materials some six months prior. More significantly, on the first day of the hearing Plaintiff’s counsel spent considerable time arguing for the inclusion in the record of the new documents in her amended motion materials notwithstanding the Defendants’ objections in writing and at the December, 2024 case conference that they would not agree to the addition of the new materials without compliance with the Rules. After this court ruled that the impugned additional documents were inadmissible, the Plaintiff, through her counsel, attempted on the second day of the hearing to revisit this court’s decision, arguing in part, that the Defendants’ objection to including the new documents in the record was a surprise. Much time was needlessly wasted on the issue. Had the Plaintiff simply complied with the Rules, the December hearing would not only have proceeded more efficiently but a third hearing date would not now be required to address the Plaintiff’s corollary request for document production which was originally scheduled to be heard at the same time as the Plaintiff’s pleadings motion.

[23] In consideration of these factors, those under Rule 57.01(1) not specifically referenced in this ruling and the partial indemnity costs of the Plaintiff, the County and BOH as well as those of Chopp and Burgess in the respective amounts of $21,780, $19,425 and $23,017.50 excluding disbursements and HST, I exercise my discretion to award the costs of this motion payable by the Plaintiff to the County and BOH in the amount of $11,000 plus HST and by the Plaintiff to Chopp and Burgess in the amount of $13,000 plus HST, both of which awards are payable within 30 days of the release of this Endorsement.

II. The Scale of the Consequential Costs of the Amendments and Discoveries

[24] In my Endorsement of January 27, 2025, I determined that the Defendants shall have their costs of delivering amended pleadings, further documentary production, if any, and their costs of discovery on new issues raised in the amended statement of claim (“Consequential Costs”). The sole issue to be determined from my January Endorsement regarding the matter of Consequential Costs is the scale of costs to be paid by the Plaintiff to the Defendants.

[25] After considering the submissions of the parties, and such authorities as Plante v. Industrial Alliance Life Insurance Co. and Kovacevic v. Kovacevic, 2022 ONSC 2340, I am satisfied that it is appropriate that the Defendants be paid their Consequential Costs on a substantial indemnity basis plus applicable disbursements and HST.

[26] Having made this determination, I am not, however, prepared to fix the quantum of the Defendants’ Consequential Costs at this time. I prefer to fix these costs once they are known with specificity in the event that parties are unable to agree. In that event, the parties may contact the Simcoe trial co-ordinator to arrange a case conference to address the issue.

[27] In the meantime, I also order that the Defendants’ Consequential Costs be paid by the Plaintiff within 30 days of the parties’ agreement regarding quantum or any endorsement of this court.

[28] I would also address the Defendants’ submission that the Plaintiff should not be entitled to further discovery of the Defendants with respect to the approved amendments because she has exhausted her discovery time allotment. I disagree. I find that the Plaintiff has additional discovery rights as a result of the approved pleading amendments. Having considered the nature of those amendments and the principle of proportionality, I would however limit any further discovery by the Plaintiff, as well as by the Defendants, to two additional hours.

[29] Finally, I note that in my January 27, 2025 Endorsement, I limited each party’s costs submissions to four pages double-spaced (excluding cost outlines, case law and offers) with no right of reply. Notwithstanding my direction, the Plaintiff delivered responding submissions, dated February 20, 2025 of some nine pages and the Defendants, Chopp and Burgess, delivered reply submissions dated February 18, 2025 of two pages in length. I have not read either of these written submissions. I would appreciate if counsel would follow my directions in the future.

Disposition

[30] It is therefore ordered that the Plaintiff shall pay the County and BOH their costs of the motion in the fixed amount of $12,430 all inclusive and the Plaintiff shall pay Chopp and Burgess their cost of the motion in the fixed amount of $14,690 all inclusive. Both cost awards are due and payable within 30 days of the release of this Costs Endorsement.

[31] It is further ordered that the Plaintiff shall pay the Defendants their Consequential Costs on a substantial indemnity basis within 30 days of the parties’ agreement with respect to the quantum of Consequential Costs or the further order of this Court.

[32] It is also ordered that the Plaintiff, BOH and the Defendants, Chopp and Burgess, will be limited to two additional hours of discovery with respect to the approved statement of claim amendments.

Justice M. Valente

Released: April 2, 2025