Court Awards Costs of $195,000 After Two Day Motion

Several months ago, I posted the decision of Darla Wilson J. (as she then was) in a case involving 3 motions in the case Avedian v. Enbridge Gas Distribution, ONSC 2376 (CanLII).

The motions brought by the plaintiff were to strike the defences of the responding parties and to disqualify her Honour as trial judge. My client and the third party and defendant in turn had brought a motion seeking directions as to whether the plaintiffs were allowed a decade into the litigation to pursue a new theory of damages after the court had previously instructed them to plead the damages which they were pursuing (and had disallowed the proposed amendment – which was upheld by the Court of Appeal.

We were universally successful on the motion and the Court had to deal with the issue of costs. The decision itself is not groundbreaking, however as is her practice Wilson J.A. set out in clear and explicit terms the general principles surrounding costs and her findings.

Notably the Court did not shy away from dealing directly with what in a normal motion would seem to be a very high quantum noting:

Turning to the appropriate quantum, and considering the factors enumerated in r. 57.01 of the Rules, I must award a sum that is reasonable in the circumstances. I am mindful of the fact that the Defendants’ counsel provided joint submissions in order to minimize overlapping work. Counsel acknowledged that the amounts sought are much higher than would normally be awarded for motions, but they stress that given the types of assertions being made, the necessary materials required a great deal of work. Counsel made the argument that their clients were required to respond to these motions, and in doing so, they have incurred exorbitant costs. As well, the Plaintiffs’ motions were rejected in their entirety, and the Defendants’ motion was found to be reasonable and their position accepted by the court. I agree.

There are important lessons to be learned when considering cases such as this. As noted in the Courts decision these motions resulted in unwarranted costs and delay. They demonstrated an unwillingness by the Plaintiff to accept the consequences of the Court of Appeals decision, and in the case of the recusal motion was brought for tactical reasons.

As litigators motions are a fact of life. Unnecessary motions however cost the clients considerable money, tie up court resources and delay the resolution of this matter.  My own philosophy is attempt to avoid motion court wherever possible, recognizing that there are some motions worth fighting.  Awards such as this demonstrate in my view the reasonableness of this philosophy. 

Again my thanks to my Co-Counsel Kirk Boggs who drafted our cost submission and James Norton who assisted in editing. 

The full costs decision can be downloaded here.