Singer Kwinter’s Nga Dang highlights important facts and outcomes in the Ontario Courts.
Case summary originally distributed in OTLA August 11, 2016 newsletter.
Parris v. Wylie, 2016 ONSC 4778 (CanLII)
After being released from the action, the defendants were unsuccessful on their motion for costs of the action.
Released July 25, 2016 | Full Decision [CanLII]
This action related to a rear-end collision between three vehicles. The Robitaille vehicle struck the Wylie vehicle, which was in turn forced into the back of the Parris vehicle. Parris brought an action against both vehicles, but all parties eventually agreed to let the Wylie defendants out of the action. By that time, the Wylie defendants were preparing to launch a summary judgment motion. They brought a motion for costs of the action and of the motion.
In dismissing the motion for costs, Master MacLeod (as he then was) considered various factors, including the following:
- It was both reasonable and understandable that the plaintiff sued these defendants; in the current state of motor vehicle law it would have been negligent not to do so;
- It is permissible to plead speculative theories of liability. The Court of Appeal has recognized the necessity of broad pleading in cases where the plaintiff cannot know all of the facts;
- It was not unreasonable for the Plaintiff to wait until after discoveries to release these defendants. In order to safely do so, the plaintiff would have to be satisfied that the Robitaille defendant would admit liability and that the claim would be less than the Robitaille policy limits;
- There is a duty to mediate under section 258.6, or if that is not triggered, then under Rule 24.1. The court will not endorse the practice of “failing” mediation. This is code for pretending to mediate and misleading the court and is improper;
- The defendants had agreed to go out without costs provided the offer was accepted by a particular date. It was unreasonable not to permit a brief extension of time to obtain instructions or to reject an acceptance that was two weeks beyond the unilaterally imposed deadline;
- There was no need to launch a summary judgment motion.
Master MacLeod noted that although the motion for costs was dismissed, no costs would be awarded for the motion. In principle, it was appropriate for the Wylie defendants to seek reasonable costs as they were technically successful in getting released from the action. Also, they had always indicated they would seek costs. However, after agreeing to be let out without costs, the defendants behaved unreasonably when the other parties accepted (late) and they grossly overreached on the motion by seeking costs of a nonexistent summary judgment motion.
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