2017 ONSC 7500, 2017 ONSC 7500

CITATION : Clatney v. Noel, 2017 ONSC 7500 COURT FILE NO.: 15-64752 DATE: 20171214 SUPERIOR COURT OF JUSTICE - ONTARIO RE: MARK CLATNEY, Plaintiff -and- JAIMIE NOEL and QUINN THIELE MINEAULT GRODZKI LLP , Defendants BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Paul H. Auerbach, for the Plaintiff Joseph Y. Obagi, for the Defendants HEARD: By written submissions costs ENDORSEMENT [ 1 ] The Defendants brought a motion seeking the dismissal of this action or, in the alternative, an order granting a stay of the action pending the outcome of an assessment under the Solicitors Act , R.S.O. 1990, c. S.15.

The Plaintiff’s entitlement to that assessment was then before the Court of Appeal of Ontario. In the further alternative, the Defendants sought an extension of time to deliver a Statement of Defence. [ 2 ] On November 24, 2016, I adjourned the motion to permit the Plaintiff to deliver a Fresh as Amended Statement of Claim. I remained seized of the matter. The Plaintiff has since delivered an amended pleading and the Defendants now seek their costs of the motion.

The Defendants’ Position [ 3 ] The Defendants submit that the primary basis for their motion was that this action raised identical issues as those in the assessment under the Solicitors Act and that this action resulted in an unnecessary duplication of proceedings.

Most of the allegations contained in the Statement of Claim, as originally drafted, pertained to legal fees, conduct related to those legal fees and the fee arrangement between the parties as well as the alleged economic damages resulting therefrom. [ 4 ] At the hearing of the motion, the Plaintiff acknowledged and undertook to limit the scope of the Statement of Claim to matters outside of the jurisdiction of the assessment, but sought to proceed nevertheless with the Statement of Claim as pleaded.

The Plaintiff resisted the suggestion that he amend his pleadings to reflect a narrower scope. [ 5 ] At the hearing of the motion, I found that the Statement of Claim, as drafted, was overly broad and poorly drafted to capture that part of the claim which would fall outside the scope of the assessment. [ 6 ] That assessment eventually proceeded and was settled on terms acceptable to the parties. Notwithstanding that settlement, the Plaintiff is pursuing additional relief in this action.

The Defendants are prepared to plead to the Amended Statement of Claim as it now limits the scope of relief sought. [ 7 ] The Defendants seek their costs of the motion in the amount of $4909.04 all-inclusive on the basis that they repeatedly and consistently requested that the Plaintiff merely agree to amend his pleading and to limit its scope. They submit that the result achieved mirrored precisely their repeated requests. They maintain that the Plaintiff acted unreasonably. In support of their arguments, the Defendants set out an exchange of correspondence between counsel.

The Plaintiff’s Position [ 8 ] The Plaintiff disputes the claim for costs since no relief was granted by me, and he argues that the motion was unnecessary. The Plaintiff says that any costs awarded should be in the cause, and if any costs are to be fixed, they should not exceed $1500 inclusive of HST. [ 9 ] The Plaintiff maintains that counsel for the Defendants never suggested that the Defendants could not have defended the claim earlier because the pleading was not sufficiently clear.

The Plaintiff argues that the position of the parties was that they should await the outcome of the appeal of the assessment proceeding before proceeding with the claim for punitive and other damages arising from the Defendant’s conduct. [ 10 ] The Plaintiff says that it was only when the Defendants were asked to deliver a defence following the appeal, that the motion seeking a stay of proceedings was brought. The Plaintiff accuses the Defendants of not wanting to proceed, and states that there was no difficulty in figuring out the nature of the Plaintiff’s claim or how to respond to it.

[ 11 ] The Plaintiff notes that the Defendants did not seek any particulars relating to the Statement of Claim and did not raise any issues with the pleading in their motion materials. The Plaintiff submits that there was never any real possibility that the court would grant a stay in the proceedings and that the changes now made to the Statement of Claim are extremely minor. [ 12 ] In the end, the Plaintiff submits that the Defendants’ motion was not successful as it was not actually heard by the court.

Secondly, the Plaintiff maintains that the motion was brought well before there was any request from the Defendants to amend the Statement of Claim. Finally, the Plaintiff says that if any costs are to be awarded, they should be limited to the attendance before me and not for the motion as a whole. Conclusion [ 13 ] It is clear from the correspondence from Mr. Obagi and Mr. Auerbach that the Defendants were seeking a Fresh Statement of Claim before proceeding with their motion. On June 12, 2016, Mr.

Obagi wrote: I need to finalize my part of the motion this week as we are not sitting on Monday, Tuesday or Wednesday.

If we are to avoid the motion, then send me a Fresh Statement of Claim. [ 14 ] He followed this up on an email dated June 14, 2016 where he wrote: Shall I assume that we are proceeding with the motion or are you going to draft a Fresh and/or Amended Statement of Claim narrowing down the issues and the prayer for relief? [ 15 ] While the Defendants originally sought an order dismissing the action or a stay of proceedings, it is clear that the Statement of Claim, as originally drafted, was the cause of concern to the Defendants.

Once the matters raised by the assessment were resolved, the Defendants were entitled to some clarity with respect to the claims that would proceed in this action. [ 16 ] The scope of an action, including discoveries and all other interlocutory proceedings is governed by the pleadings. More importantly, the allegations in a Statement of Claim can trigger an insurers’ obligation to defend or indemnify a claim.

Defendants are not required to accept assurances contained in correspondence from opposing counsel purporting to limit the scope of a claim. [ 17 ] Further, should the matter proceed to trial, all of the irrelevant or damaging allegations in the Statement of Claim, as currently drafted, will be placed in the Trial Record before the trial judge. The Defendants were entitled to have that record reflect the only issues remaining in dispute. [ 18 ] While the Defendants did not achieve the exact result sought in their Notice of Motion, they obtained the substantive relief they were seeking.

For this reason, they are entitled to their costs of this motion which I fix in the amount of $2,500 inclusive of HST payable in any event of the cause. Mr. Justice Robert N. Beaudoin Date: December 14, 2017 CITATION : Clatney v. Noel, 2017 ONSC 7500 COURT FILE NO.: 15-64752 DATE: 20171214

ONTARIO SUPERIOR COURT OF JUSTICE RE: MARK CLATNEY, Plaintiff -and- JAIME NOEL and QUINN THIELE MINEAULT GRODZKI LLP , Defendants BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Paul H. Auerbach, for the Plaintiff Joseph Y. Obagi, for the Defendants costs ENDORSEMENT Beaudoin J. Released: December 14, 2017