Procedural History

Plaintiff Mr. Heath’s motion for costs of motion to strike the defence under Rule 30.08(2) rendered moot by defendant Canada’s belated compliance with Rules; motion inadvertently abandoned by plaintiff who despite serving its factum and book of authorities, neglected to confirm his motion within time period prescribed under Rule 37.10.01. Plaintiff refiles his motion for costs of the motion rendered moot and inadvertently abandoned.

Facts

The action involved a claim issued October 9, 2020 for $7,000,000.00 in damages arising out of Canada’s alleged treatment of Mr. Heath in a federal prison. The claim alleged that Canada inter alia unlawfully detained Mr. Heath in a dry cell and for an extended period in administrative segregation. In an effort to move his litigation along, Mr. Heath requested Canada deliver its List of Documents and schedule discovery. More than 21 months after the Plaintiff’s claim was issued, the List of Document remained outstanding, and discoveries were yet to be set.

On July 6, 2022, Mr. Heath served his motion to strike Canada’s defence under Rule 30.08(2) for failing to serve its List of Documents within a reasonable time; in the alternative a timetable prescribing deadlines for next steps in the proceeding, and costs. The motion was returnable April 12, 2023.

More than six months after Mr. Heath served his motion record, Canada served its List of Documents, and eventually agreed to a Discovery Plan, thereby rendering Mr. Heath’s motion under Rule 30.08(2) moot. In response to the belated compliance, on February 8, 2023 Mr. Heath offered to settle his costs of the motion rendered moot for $5,000.00, which Canada declined asserting the plaintiff’s motion was unnecessary.

By e-mail dated February 16, 2023, the plaintiff stated that if a timetable were agreed to, “then the only issue to be put before the court on April 12, 2023 will be that of costs”.

The plaintiff prepared to argue costs of the motion rendered moot by Canada’s belated delivery of its List of Documents and agreement to a timetable. On March 1, 2023 the plaintiff served a supplementary motion record; on April 3, 2023 the plaintiff served its factum and book of authorities. However, due to an inadvertence, the plaintiff failed to confirm the motion on costs within the prescribed timeline under 37.10.1, which inadvertence had the effect of abandoning the motion.

As a result of this inadvertence, the plaintiff refiled his motion on the issue of costs of the motion rendered moot by Canada’s belated delivery of its List of documents and agreement to a timetable. It included therein the List of Documents produced by Canada listing 103 documents comprising 400 pages.

A main issue on the motion was whether the court had the jurisdiction to award costs for a motion that had been abandoned and resolved by the parties.

Disposition: Justice Rappos granted the plaintiff’s motion for costs. His Honour ordered the defendant to pay the plaintiff costs in the amount of $6500.00 within 60 days.

Reason: The parties agreed, and Justice Rappos concluded the court has jurisdiction to award costs of the plaintiff’s motion. In making the determination, Justice Rappos referenced the following principles:

• The costs of a step in a proceeding are in the discretion of the court. The court must exercise its discretion “with a view to balancing compensation of the successful party with the goal of fostering access to justice” ^[1] [emphasis in original];
• Costs generally should not be awarded when parties settle ‘except for costs’” and that “costs are an incident of the determination of the rights of the parties. They flow from a decision. They are not themselves intended to be the subject of the dispute” There is “general rule against awarding costs on a settlement”, but that there “may be exceptional cases where a settlement is reached and different considerations lead to a different outcome” ^[2]
• The “general rule is that where a proceeding is settled on all issues except for costs, the court is slow to make an award of costs against one of the parties”….There “may well be exceptional circumstances where, despite the fact that a settlement is reached, it may nevertheless be appropriate to make an award of costs”…In determining whether exceptional circumstances exist, the court is to look at the factors listed in rule 57.01(1), with a focus on the result, whether there were any written offers to settle, whether the conduct of any party “tended to shorten or to lengthen unnecessarily the duration of the proceeding, and whether any step in the proceeding was improper, vexatious or unnecessary.” ^[3]

In addition to factors discussed above, Justice Rappos also noted section 27 of the Crown Liability and Proceedings Act which provides that “Except as otherwise provided by this Act, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings”; that Canada provided no explanation for its 25 month delay from the date the claim was issued to deliver its List of Documents; and cited numerous cases discussing the public interest in timely resolution of disputes, and the effects of delay on costs, unfairness and frustration in the litigation. Justice Rappos stated:

The decision in Heath is important for litigants who may be facing delay in civil proceedings. First, the decision relates to one option available to plaintiffs whose litigation is rendered stagnant by a non-compliant defendant, and provides some guidance regarding remedies when a defendant who has been non-compliant comes into compliance with the Rules only after the motion record compelling compliance or seeking to strike the defence is served and filed.

^[1] Heath at para 35
^[2] Heath para 38-39
^[3] Heath para 40-41