This recent case contains some interesting insights about costs following an unsuccessful Summary Judgment Motion to Dismiss. Although this instance involved a motion to dismiss by a defendant, the principles could equally apply to motions for summary judgment brought by a Plaintiff.
Here is what was said:
a) it is very typical for courts to urge the parties to resolve on their own the costs of the motion, and exceedingly there is a “low success ratio” such that it is very common for the parties to return to ask the court to fix costs (which is regrettable);
b) asking the court to defer the costs to the trial judge is not typically fair nor reasonable to the plaintiff, especially when the plaintiff incurred considerable expenses in successfully defending a summary judgment motion to dismiss. The court pointed out that “summary judgment is not a one-way street for the moving party. It is not heads I win, tails I will try again later and you’ll just have to eat the costs you can pay your lawyer now and wait and see what happens years from now at trial.” The judge also took into account the fact that a trial may never occur in this case, and said the following:
“it may be that the plaintiff settles the case. Such settlements are often negotiated on an “all in” basis such that $1 of extra costs is $1 less in compensation. The plaintiff may have a change of heart and agree with the moving parties that his cause is hopeless and choose to walk away. In either event, the front-end loading of costs that she may have prudently wished to defer until nearer the time of trial reduces her fiscal manoeuvering room in ways that place fiscal pressure on her and benefit the moving party defendants who may be seeking to test or exhaust her resolve.”
c) an offer from the Plaintiff to settle a summary judgment motion can be taken into account when fixing costs, but in this instance the Plaintiff’s offer did not contain an element of compromise. Although the offer did contain an offer of compromise if accepted by a certain time (legal fees waived), once that date passed, the plaintiff’s offer if accepted, would require the Defendant to pay substantial indemnity costs which would put the Defendant in a worse position accepting the offer than just simply abandoning the motion (where costs would be paid on a partial indemnity basis);
d) the parties must come to the motion prepared to fix the quantum of costs pursuant to Rule 57.01(6). The court went on to provide this valuable insight: “This salutary rule has been treated as a dead letter by the Toronto civil bar for far too long. Cost reserves from motions arise close to 100% of the time which contributes materially to the logjams in the civil justice system. This lamentable habit on the part of the bar is a practice that the Toronto civil judges are determined to break and breaking it requires repeated and consistent messaging;
e) Also pursuant to Rule 57.01(6), the parties should not provide the court with a data dump of dockets. In this case, the plaintiff produced 13 pages of dockets, rather than a streamlined summary (not exceeding three pages) as contemplated by Rule 57.01(6). Again, and equally noteworthy is the judge’s commentary: “my job as judge is to decide questions placed before me but not to set up spreadsheets to do the work that counsel has failed to do.” In this instance, the judge acknowledges that he reduced the fees for the Plaintiff based solely on the plaintiff’s failure to provide the judge “with the data necessary to calculate the amount more precisely.”
In the end, the Plaintiff was awarded roughly $38,000 in costs, split between roughly $27,000 in legal fees and $11,000 in disbursements.
The Takeaway
The judge in this case highlighted several anecdotal realities of personal injury litigation: the bottom line is that it is a high cost, high risk world, and if a party roles the dice with a summary judgment motion, they don’t get a free kick at the can. Part of this high risk high cost world is that the unsuccessful moving party pays costs for losing the motion, given that the upside of winning the motion would be a favourable judgment, including a favourable cost award: in the case of a moving Plaintiff, that would be a judgment for damages, and in the case of a moving Defendant, that would be a judgment dismissing the action.
The court also reminds litigants to be prepared to argue costs following a motion, with a succinct cost outline.
Basaraba v. Bridal Image Inc.., 2022 ONSC 3124
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3124/2022onsc3124.html