Olympia Interiors Limited and Mary David v. Her Majesty the Queen, [1993] 1 CTC 242

Reed, J. (orally):— I am persuaded, in the circumstances of this case, that it is appropriate to stay the proceedings pending the final disposition of the defendant's motion for summary judgment.

I am not convinced that the plaintiffs would be in any way prejudiced by such a stay. I do think the defendant would be prejudiced, as a result of extensive costs and effort being expended, to continue the proceedings in the interim, if those costs and efforts in the end were expended needlessly.

Given the plethora of proceedings which the defendant has had to meet, the fact that the plaintiffs already clearly have many if not all of the relevant documents, the fact that the motion to strike, if successful, either in whole or in part, will condition subsequent proceedings including what documents are relevant and to be produced, I think all those factors make it appropriate to stay the proceedings pending, as I have said, the outcome of the summary judgment application.

Requiring the defendant to respond to an affidavit of documents now, in the circumstances, would be oppressive and vexatious. If there is no merit to this claim, and that can be determined on the basis of the record as it stands, then staying further proceedings until that determination is made, is clearly the most appropriate way to proceed.

Counsel for the plaintiffs has expressed concern about the appropriate procedure to be followed for the summary judgment application, if the proceedings in general are stayed. Counsel have the right to apply to me for directions, if they need it, with respect to any proceedings on the summary judgment application. If you cannot agree between yourselves as to what is appropriate and you have a dispute, you can apply to me for directions.

With respect to the timing of the hearing of that application, you have to apply in the normal way to the Associate Chief Justice. I cannot make an order for the timing of the hearing.

Mr. Peterson, you wanted to speak to me about costs.

MR. PETERSON: Before we get to that, could we just —Dealing with the motion for judgment, at least if you could give us some direction, am I allowed to file material; am I allowed to cross-examine?

THE COURT: I want to look at the record before I answer you.

MR. PETERSON: I haven't filed any material at the moment.

THE COURT: I want you to tell me what material you want to file and what cross-examination you want to do and why, and how it relates to the motion. I want to make sure that you are not into a great fishing expedition.

Any cross-examination and filing of material has to relate to the grounds on which the summary judgment is being sought.

MR. PETERSON: Okay. So at least I can file some material in response to their motion, because I haven't filed anything. They just filed three volumes of material. I haven't —

THE COURT: You are entitled to proceed in accordance with the normal procedure for dealing with a motion.

MR. PETERSON: There is a stay; so I don't know. I am sorry. I am not trying to be difficult, but we —I apologize, it has been very difficult, every step of the way.

So, as long as it is proceedings within the ordinary course of the motion.

THE COURT: That is right.

MR. PETERSON: Okay. Fair enough.

THE COURT: : Certainly, you are not precluded from proceeding with respect to the summary judgment application.

MR. PETERSON: Okay.

THE COURT: That would be unreasonable.

MS. BOUCHER: My lady, I would like to speak to costs on the motion.

I think it is appropriate that an amount be fixed, payable to the Crown, in any event of the costs in this motion. That was unnecessary. I would think that it's transparent that we should be proceeding to the summary judgment rather than preparing for trial at this stage and that this motion required me to come from Toronto, going through a tremendous expense really for something that should have been agreed to between counsel.

I would ask for costs to be fixed in the amount of $500 payable to the Crown, in any event of the costs.

MR. PETERSON: I would submit that, in the circumstances of there being a motion for judgment, that the costs of today be put over to the judge hearing the motion for judgment, because if we should have just proceeded on the way to prepare for trial rather than to prepare for the motion for judgment, then we are delaying by several months when we are going through this — because the stay is on the idea —

THE COURT: I am not following you.

MR. PETERSON: Okay. I’m sorry.

THE COURT: You have to back up.

MR. PETERSON: The Crown has brought this motion on the belief that they will succeed at the motion for judgment and therefore it will not be necessary to file an affidavit of documents.

THE COURT: They brought the motion on the basis that it is premature to proceed with respect to the affidavit of documents before the motion for judgment is decided.

MR. PETERSON: Okay. If it is found that they should not have brought the motion for judgment, then I should have got my affidavit of documents now. Then it’s just a fishing expedition on the part of Her Majesty.

We're going to be going to great expense in preparing for that motion for judgment, which I don’t think should be brought, but that's something for a later date, and at that time it may be determined that they shouldn't have gone for that and, therefore, they should file an affidavit of documents and let's get on with this case.

I would therefore submit that the costs should be put over to the judge hearing the motion for judgment, because the effect, the result of that motion has some effect on whether this should have proceeded.

Thank you.

THE COURT: Ms. Beck, do you have anything to say?

MS. BECK: My lady, the Crown, the defendant, has an absolute right under the rules to test the water, to go for summary judgment, and there is nothing abusive about that.

The costs on this motion were totally unnecessary because counsel should have been able to agree to proceed to summary judgment and then proceed expeditiously to trial, if necessary.

The costs on one have absolutely nothing to do with the other, and they should be determined today. That has nothing to do with the costs on the summary judgment motion itself. They are separate. These costs were just wasted. And the summary judgment, if we are wrong, we will have costs awarded against us, but the costs for today are quite exceptional and severable from the costs of the summary judgment motion.

Those are my submissions, my lady.

THE COURT: Costs will follow the event. What I mean by that is, at the final determination for the action, costs will be determined.

MR. PETERSON: Thank you, my lady.

MS. BOUCHER: My lady, can we have them fixed?

THE COURT: $500.

MS. BOUCHER: Thank you, my lady.

MR. PETERSON: To whom?

THE COURT: That depends on the final —MR. PETERSON: Who wins.

THE COURT: On who wins.

MS. BOUCHER: My lady, could I just ask for a clarification, because this is double the tariff — I mean it's triple the tariff, actually, for the Federal Court.

The reason I asked for $500 is because I had to come in from Toronto. My costs are much higher.

THE COURT: Yes.

MS. BOUCHER: So if it follows the event, then that would be for either party

— if you see what I mean !

The sum of $500 would be appropriate for the crown, the crown's costs on this motion, but counsel for the plaintiffs is in Toronto. There is absolutely no costs. We haven’t even been here half a day.

MR. PETERSON: No, I am from Ottawa.

MS. BOUCHER: Sorry, from Ottawa.

In other words, the tariff would suggest $125 is the appropriate rate for counsel for the plaintiffs. If the court wants to set costs without reference to the party, then I would submit that they should go in accordance with the tariff.

THE COURT: You're the one who asked me, you're the one who put the figure, and I responded to you. Now, you seem to be saying: Would I please change the decision?

MS. BOUCHER: My lady, I was asking for costs payable to the crown, in any event, and I would submit that $500 would not be an appropriate fee if it's going to follow the event and it will be a cost which would accrued to either party.

THE COURT: So, you do not want them fixed?

MS. BOUCHER: My lady, if you are going to let that follow the event, no; it should follow the tariff. It should follow the tariff, with disbursements.

THE COURT: I will alter the order and I will make it "follow the event period”.

MS. BOUCHER: Thank you, my lady.

MR. PETERSON: Thank you, my lady.

Application granted.