COURT FILE NO.: 636/03

DATE: 20050503

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., LANE, PITT JJ.

B E T W E E N:

TAMIL CO-OPERATIVE HOMES INC.

Applicant

(Respondent in Appeal)

• and -

SIVA KANDIAH

Respondent

(Appellant)

Bruce D. Woodrow for the Applicant (Respondent in Appeal)

Joseph Kary for the Respondent (Appellant)

Reasons released: February 8, 2005

Pitt J.

ADDENDUM RE COSTS

1We have read and considered the submissions of the parties, and have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2We are required to make a disposition of the costs issue that is fair and reasonable to the unsuccessful litigant. Boucher v. Public Accountants Council for the Province, 2004 14579 (ON CA), [2004] O.J. No. 2634, 188 O.A.C. 201 (C.A.) and Stellarbridge Management Inc. v. Magnum International (Canada) Inc., 2004 9852 (ON CA), [2004] O.J. No. 2102, 187 O.A.C. 78 (C.A.).

3The difficult personal financial circumstances of the appellant is a theme that runs through every stage of this proceeding. While those difficulties ought not to be shifted onto the shoulders of the co-owners, they are a factor that the court is entitled to consider in making a cost award.

4To the extent that we could, we urged the respondent to take the special circumstances of the appellant into consideration in determining what course of action to follow in consequence of its success in the litigation. Notwithstanding our urging, the respondent appears to have done nothing that might have assisted the appellant. In particular, the failure of the Co-operative to co-operate with the City to enable Ms. Kandiah to obtain subsidy to which she is entitled, and the absence of which is the reason for her arrears, is particularly disturbing. The refusal of the Directors to obey the law and call the meeting requisitioned by other tenants on Ms. Kandiah’s behalf is an indicator of a motive beyond merely getting her rent situation regularized.

5Ferguson v. Hamilton Civic Hospitals (1985), 1985 2045 (ON CA), 18 D.L.R. (4th) 638; Pajelle Investments Ltd. v. Booth (1975), 1975 478 (ON SC), 7 O.R. (2d) 229; and Vanderwater v. Marsh (1913), 810 D.L.R. 110, aff’d 1913 559 (ON CA), 14 D.L.R. 737 (Ont. C.A.) provide support for our view that in the special circumstances of this case, the appeal ought to be dismissed either without costs or with nominal costs.

6We are of the view that the respondent is overreaching in its request that costs be awarded against the solicitor personally, and reject that request completely.

7In the result, there shall be no costs of this appeal.

8All of which is ordered.

Cunningham A.C.J.

Lane J.

Pitt J.

Released: May 3, 2005

COURT FILE NO.: 636/03

DATE: 20050503

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., LANE, PITT JJ.

B E T W E E N:

TAMIL CO-OPERATIVE HOMES INC.

Applicant

(Respondent in Appeal)

• and -

SIVA KANDIAH

Respondent

(Appellant)