Court File and Parties
Citation: Kipiniak v. Dubiel, 2014 ONSC 4515 Divisional Court File No.: 81/13 Date: 2014-07-30 Superior Court of Justice – Ontario Divisional Court
Re: Andrew Kipiniak, Appellant - v. - Ewa Dubiel, Respondent
And Re: Andrew Kipiniak, Appellant - v. - Kinga Dubiel, Respondent
Before: Mr. Justice H.J. Wilton-Siegel Counsel: Andrew Kipiniak, acting in person Joseph Kary, for the Respondents
By Written Submissions
Supplemental Endorsement
[1] This supplemental endorsement supplements the Court's endorsement dated March 3, 2014 (the "Endorsement"). It addresses an issue raised by Mr. Kipiniak subsequent to the release of the Endorsement as well as costs of the appeal. Capitalized terms herein have the meaning ascribed thereto in the Endorsement.
The Calculation of Occupation Rent Payable
[2] Pursuant to the Endorsement, among other things, the Court awarded Kipiniak $23,000 by way of occupation rent for the period May 3, 2008 to May 3, 2008.
[3] Kipiniak believed there was a typographical error and sought a correction on the basis that, because the occupation rent pertained to a period of 24 months, the correct amount should be $24,000. Mr. Kary, on behalf of Kinga, submitted that the figure of $23,000 was correct because the rent for the first month claimed fell due two years and four days before the claim was issued and was therefore outside the two-year limitation period. In addition, he submitted that, if this matter were "re-opened", Kinga should be permitted to argue that $1,000 was an illegal rent for the unit. He submits that the Deputy Judge had failed to determine what a reasonable rent would have been if she had not decided against Kipiniak on jurisdictional grounds.
[4] I do not consider the issue raised by Kipiniak to involve "a re-opening" of the issue of occupation rent. In any event, the issue of the quantum of occupation rent was before both the Deputy Judge and the Court on the appeal. It cannot be raised after the Court has rendered its decision on the appeal.
[5] With respect to the issue of quantum, the Court's decision was based on a different consideration from that identified by Kinga's counsel. There are 24 payment dates that fall within the period May 3, 2008 to May 3, 2010. I considered that the last, being for the month of May, 2010, should be disregarded as it represented only 3 days rent. However, after further consideration as a result of Mr. Kipiniak's submission, I have concluded that this reflected a conceptual error that should be corrected. The Court's reasoning ignored the fact that rent accrues on a daily basis and the decision therefore disregarded the accrual for the period May 3 to May 31, 2008 as well as the accrual for the period May 1 to May 3, 2010. The same conclusion is reached by an alternative approach, which recognizes that treating each payment due on the 24 rental payment dates in the period May 3, 2008 to May 3, 2010 as payable on the relevant date.
[6] Accordingly, I am of the opinion that the Court's award should have been $24,000 rather than $23,000. As the order has not been issued in this matter, I remain seized of the appeal. Accordingly, the award in the Endorsement is varied to provide that Kinga is obligated to pay occupation rent in the amount of $24,000.
Costs of the Appeal and the Small Claims Court Trial
[7] With respect to costs of the appeal, Mr. Kipiniak seeks costs of $6,700.73 in his costs submission. Kinga and Ewa collectively seek $15,448.38, of which $15,339.75 represents legal fees on a full indemnity basis using a rate of $375/hr.
[8] There are a number of items in Kipiniak’s costs submission that can be dealt with on a preliminary basis. First, included in the costs are $500 as compensation for alleged improper and delaying conduct on the part of counsel for Kinga and Ewa during the appeal process. There is no basis in the record for such an award. Also included is an amount of $349 for costs incurred in respect of an alleged false Notice of Motion for Leave to Appeal to the Court of Appeal in respect of the decision of this Court. This cannot be the subject of the present costs award, which can only fix costs of the appeals before the Court. Lastly, Kipiniak seeks $200 as the costs of labour to photocopy and produce court documents. This is not a reimbursable cost. It also appears there was a transposition error in Kipiniak's costs submission. Kipiniak's remaining costs therefore actually total $3,531.73.
[9] I have proceeded on the basis that, in each case, the costs sought by the parties should be apportioned on a 50/50 basis as between the costs relating to the appeal of the decision of the Deputy Judge in respect of the claims against Kinga and the costs relating to the appeal of the decision in respect of the claims against Ewa. This determination is based on the amount of time required on the hearing of the appeals in respect of the claims against each party.
[10] Ewa was entirely successful in respect of the appeal of the Deputy Judge's decision regarding Kipiniak's claims against her on the appeal. Ewa is therefore entitled to her costs on a partial indemnity basis. Kipiniak's offer to settle with her is therefore irrelevant. Given the complexity of the issues involved, the seniority of counsel, the amounts involved, and the fact that one claim was below the appeal threshold, I find fair and reasonable costs to be $4,000 payable by Kipiniak within 30 days.
[11] Kipiniak was successful in respect of the principal issue involving Kinga. He is therefore entitled to a portion of his costs attributable to his appeal of the Deputy Judge's decision regarding his claims against Kinga. However, Kinga was successful on the appeals of the decisions regarding the three other claims against her, as these claims were below the appeal threshold. Her reasonable costs of these appeals on a partial indemnity basis should be netted against Kipiniak's costs of the remaining appeal.
[12] I have proceeded on the basis that the appeal of the principal issue involving Kinga required approximately one-half of the total time spent by Kipiniak on the appeals of the decisions regarding the four claims against Kinga. On the other hand, the time required by Mr. Kary to address the three claims in which Kinga was successful was not extensive. I also note that some of Kipiniak's expenses are not permitted under the tariff. In addition, there is an evident excess of photocopying given the unnecessary documentation filed in this appeal.
[13] On the basis of the foregoing, I find fair and reasonable costs of the appeals of the Deputy Judge's determination of Kipiniak's claims against Kinga to be $1,500 payable by Kinga and $750 payable by Kipiniak for a net amount of $750 payable by Kinga within 30 days.
[14] With respect to the costs awarded in the small claims court trial, I agree with Mr. Kary that Ewa, being successful on her appeal in this Court, should remain entitled to one-half of the representation fee, being $3,750, together with the cost of the interpreter, being $712.50, and one half of the remaining disbursements, being $510, for a total of $1,222.50 in respect of disbursements.
[15] With respect to the costs awarded to Kinga in the small claims court trial, a portion of such costs should be reversed to reflect the outcome on this appeal of the principal claim against her. Given the 50/50 allocation of time in respect of the claims against Kinga mentioned above, each of Kipiniak and Kinga would have been entitled to costs of $1,875 in the small claims court trial, resulting in a netting of each award against the other. While the record does not contain the disbursements claimed by Kipiniak in the small claims court action, I think one-quarter of his reasonable expenses (being his proportionate entitlement on the principles above) would have approximated Kinga's proportionate entitlement. On this basis and given the disbursements awarded in the small claims court trial, each of Kinga and Kipiniak must bear their own costs of the small claims court trial in respect of Kipiniak's claims against Kinga.
Wilton-Siegel J.
Date: July 30, 2014