) ) MITSUHIRO MIYAFUJI Plaintiff – v. –, 2013 ONSC 1808

CITATION : Miyafuji v. Greyhound Transportation et al., 2013 ONSC 1808 COURT FILE NO.: 25250/10 DATE: 2013-03-26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) MITSUHIRO MIYAFUJI Plaintiff – and – DAVID WAYNE ROBERTS, GREYHOUND CANADA TRANSPORTATION ULC, OFFICER HEMSWORTH, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AND THE MUNICIPALITY OF WAWA POLICE SERVICES BOARD Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Brian L. DeLorenzi, for the Plaintiff Cynthia A.

Aoki, for the Defendants David Roberts/Greyhound Canada Transportation Erin Rizok for Defendants Officer Hemsworth/Her Majesty the Queen in Right of Ontario Stuart Zacharias for Defendant The Municipality of Wawa Police Services Board ) ) ) HEARD: February 21, 2013 REASONS ON COSTS JUSTICE E. GAREAU: [ 1 ] On March 7, 2013 I released a decision which dealt with various motions brought by the defendants (excepting Roberts).

The specifics of the relief claimed in the motions are set out in paragraph 2, 3, and 4 of my written Reasons as follows: “In particular, the defendant Greyhound, by motion dated May 15, 2012 requested the following relief: (

a) An order dismissing the plaintiff, Mitsuhiro Miyafuji’s action as against Greyhound, on the ground that the matter has already been settled through the execution of a final release, and as such an abuse of the processes of the court; (

b) In the alternative, an order that the plaintiff’s action be dismissed for failure to serve its statement of claim within six months from the date of issuance. (

c) In the alternative, an order that the plaintiff pay into court $15,000.00 as security for Greyhound’s costs; (

d) In the alternative, an order that the plaintiff pay into court such other amount as the court deems just, as security for Greyhound’s costs without prejudice to Greyhound’s ability to move for additional security for costs; (

e) An order that until such security for costs has been posted, the plaintiff may not take any steps in the proceeding; (

f) An order that the plaintiff pay to Greyhound, its costs of this motion fixed and payable forthwith; and (

g) Such further and other relief as the Honourable Court may seem just. The defendants Hemsworth and Her Majesty the Queen in Right of Ontario, by motion dated July 9, 2012, requested the following relief: (

a) An order that the plaintiff pay into court $10,000.00 as security for the crown defendants’ costs; (

b) In the alternative, an order that the plaintiff pay into court such amount as the court deems just, as security for the crown defendants’ costs, without prejudice to the crown defendants’ ability to move for additional security for costs at a later date;

(

c) An order that until such security for costs has been posted, the plaintiff may not take any steps in this proceeding; (

d) An order that the plaintiff pay to the crown defendants its costs of this motion fixed and payable forthwith; (

e) Such further and other relief as the Honourable Court may deem just. The defendant, The Municipality of Wawa Police Services board, by motion dated June 28, 2012 requested the following relief: (

a) An order dismissing or staying the action on the basis of a prior settlement agreed by the plaintiff; (

b) In the alternative, dismissing the action for want of prosecution; and (

c) In the further alternative, an order that the plaintiff pay into court security for costs in favour of the defendant, The Municipality of Wawa Police Services Board.” [ 2 ] In the end result, the defendants were successful in obtaining an order for security for costs against the defendants but in a lesser amount than what was requested.

The other relief claimed by the defendants, Greyhound and Wawa Police Services Board was dismissed and, in particular, the court refused to dismiss the action of the plaintiff on the basis of an executed final release or for want of prosecution or for failing to serve the statement of claim three days outside the period prescribed by the Rules of Civil Procedure . [ 3 ] As set out in Section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. 43, costs are in the discretion of the court subject to any provision in the Rules that may assist the court in the exercise of its discretion. [ 4 ] In the exercise of its discretion under

Section 131 of the Courts of Justice Act , to award costs, the court may consider the result in the proceeding, any offer to settle made in writing and the factors st out in

Section 57.01(1) of the Rules of Civil Procedure . [ 5 ] In the written submissions on the issue of costs provided by counsel for the parties, no formal written offers to settle were referred to, which is not surprising given the nature of the relief requested in the motions. The result claimed was all or nothing which does not lend itself to compromise offers of settlement being made. [ 6 ] As to the success of the parties, this should be viewed globally considering the claims of the motions. My view is that success was divided.

Although the defendants were successful in obtaining an order for security for costs against the plaintiff, they obtained orders in amounts lesser than that claimed and were unsuccessful in having the plaintiff’s claim dismissed at this stage on the basis of the release executed by the plaintiff or on the basis of want of prosecution of the action. [ 7 ] Success on the motions having been divided, it is not appropriate to make an order for costs and each party will bear their own costs of the motions brought by the defendants earlier referred to. Justice E. Gareau Released: March 26, 2013 CITATION : Miyafuji v.

Greyhound Transportation et al., 2013 ONSC 1808 COURT FILE NO.: 25250/10 DATE: 2013-03-26 ONTARIO SUPERIOR COURT OF JUSTICE

MITSUHIRO MIYAFUJI Plaintiff – and – DAVID WAYNE ROBERTS, GREYHOUND CANADA TRANSPORTATION ULC, OFFICER HEMSWORTH, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AND THE MUNICIPALITY OF WAWA POLICE SERVICES BOARD Defendants REASONS ON COSTS Justice E. Gareau Released: March 26, 2013