Court File and Parties
Citation: Kedzior v. Pond, 2014 ONSC 6157 Divisional Court File No.: DC-12-103 Date: 2014-10-22
Ontario Superior Court of Justice Divisional Court
Between:
Tomasz Jan Kedzior Appellant
– and –
Natalie Kristina Pond; Megan Solomon; Abigail Ellen Post Menendez; Rachel Raine Vruezew Respondents
Counsel: Philip V. Hiebert, for the Appellant Cameron R.B. Fiske, for the Respondents
Heard: March 7, 2014
Endorsement Re: Costs
MacKenzie, J.
[1] By order dated March 14, 2014, I dismissed the appellant’s appeal from the order of Deputy Judge Pettipiere of the Guelph Small Claims Court as well as the putative appeal claimed as alternate relief from the order of Deputy Judge Sutherland of that court dismissing the appellant’s claim at a settlement conference conducted by Deputy Judge Sutherland.
[2] The case arose out of a claim filed in the Guelph Small Claims Court by the appellant as landlord against the respondents as tenants arising out of a residential tenancy. (There were earlier proceedings in the Landlord and Tenant Tribunal between these parties but they are of no moment in the present appeal from the orders of Deputy Judge Pettipiere and Deputy Judge Sutherland).
[3] As previously noted, Deputy Judge Sutherland had dismissed the appellant’s claim in the Small Claims Court action at a settlement conference. The appellant then brought a motion returnable before Deputy Judge Pettipiere seeking to set aside the judgment of Deputy Judge Sutherland. Deputy Judge Pettipiere dismissed the appellant’s motion to set aside or vacate the Order of Deputy Judge Sutherland on the basis that the process and relief being sought by the appellant before him was in effect an appeal garbed as a motion to set aside the judgment of Deputy Judge Sutherland.
[4] For the reasons set out in my Endorsement dated March 14, the appeal was dismissed.
[5] I directed cost issues to be dealt with by written submissions as set out in paragraph 33 of that Endorsement. (I note here that paragraph 33 directed that the “appellant” shall make written submissions with reply submissions by the “respondents” and any further submissions by the appellant. Reference to “appellant” and “respondents” there were the result of a typographical error; as the respondents were successful, the order of submission should be first, the respondents, with reply from the appellant and further reply, if any, by the respondents.
[6] I have since received written submissions of the parties as directed in paragraph 33.
[7] Before dealing with costs issues, I have been requested to deal with a clerical error, relating to the spelling of the surname of the last mentioned respondent. The respondents seek costs in their favour, either on a substantial or partial indemnity basis. In addition, the respondents seek an answer to the question whether they are entitled to costs in view of the fact that their counsel had argued the case on appeal on a pro bono basis. It must also be taken into account that no offers to settle within the meaning of the Rules of Civil Procedure were made by either party.
[8] The respondents refer to the provisions of section 131 of the Courts of Justice Act R.S.O. 1990 c.C. 43, as amended, providing for costs of an incidental to any proceeding or step in a proceeding to be in the discretion of the court, subject to the rules of court. The respondents observe that R. 57.01(1) is the governing rule for the exercise of the court’s discretion in fixing the amount of any costs award.
[9] The respondents seek costs on a substantial indemnity basis. Acknowledging that substantial indemnity costs are generally awarded only in rare cases where there has been reprehensible, scandalous or outrageous conduct, the respondents contend that there are two reasons for which substantial indemnity costs could be awarded in this case. The first of these is that the appellant has already demonstrated disrespect and contempt for court and tribunal orders when he failed to pay costs orders made by the Landlord and Tenant Board. As well, the landlord has sought relief against the respondents in Small Claims Court, at the same time ignoring the costs orders by the Landlord and Tenant Board imposed upon him in favor of the respondents. The second reason is that the appeal of Deputy Judge Pettipiere’s decision was really designed to appeal the order of Deputy Judge Sutherland dismissing his small claims court action.
[10] The respondents contend that the appellant’s factum in this matter was completely unrelated to the Notice of Appeal and this disregard for procedure arising therefrom is deserving of chastisement in the forum of a substantial indemnity costs award.
[11] On the pro bono issue, counsel for the respondents contends that costs have been awarded in pro bono cases and are important since they act as a possible means to reduce the financial sacrifices that pro bono counsel make in taking on such work. In this regard, counsel argues that awarding costs in pro bono cases increases access to justice since they encourage such work from members of the Bar and pro bono costs awards ensure that either students or impecunious clients are placed on an equal footing with parties who are financially able to retain counsel.
[12] In his responding materials, the appellant denies the validity of arguments relating to the access to justice issue on the basis that respondents’ concept of access to justice “in reality favors the applicant since he is the one to have his day in court while the respondents continue to oppose this.”
[13] This court is unable to fathom the appellant’s argument in this regard. On my interpretation, the appellant seems to be saying that by disputing the appellant’s claims in the context of the court proceedings, the respondents are denying the applicant access to justice.
[14] This fails to take into account that any party who is the defendant or respondent in a claim by another party is entitled to dispute the validity of the claims by that party but that in no way detracts from the applicant’s access to justice for the purpose of determining the validity of his or her claims. In this regard, the applicant continues, stating that the purpose of the respondents in “opposing the appellant’s action” is to prevent the case from ever coming to trial. This argument or position suffers from the same difficulty as the first mentioned argument: it is simply not tenable.
[15] The applicant denies that any costs should be awarded on the basis that, given the public interest element of the case and the lack of any monetary amount being sought at this stage, the case is not an appropriate one for costs awards: see paragraph 3 of the appellant’s submissions.
[16] There is no indication as to what the public interest element in the case is in terms of denying a successful party costs in accordance with the normal rule of costs following the event. It must be remembered, the respondents in the matter were wholly successful.
[17] The appellant contends that rule 57.01(1) does not assist the respondents in that the case was not a proceeding for a monetary award, but rather to clarify a question in procedure within the rules of Small Claims Court and that in substance it concerns purely a public benefit derived from clarifying the law. The appellant cites no case law in support of this interpretation of the objective and parameters for the operation of rule 57.01(1). I regard this submission as also being untenable in law.
[18] The appellant makes the following submission in relation to the pro bono issue in paragraph 8 of his responding materials. I set out paragraph 8 in its entirety:
It is also submitted that using costs as an incentive to encourage more lawyers to volunteer for pro bono will, notwithstanding the comments of the Ontario Court of Appeal in 1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al., at 2006 35819 (ON CA), 82 O.R. (3d) 757 at paragraph 35, (as provided by the Respondant [sic] at his Tab 3), will run the danger of diverting committed pro bono hours that are dedicated in advance by certain of the larger firms, from the most worthy causes to the potentially most lucrative causes, especially during periods of financial restraint, and therefore pose a risks [sic] to societal interest by the restructuring of the pro bono arena, so as the [sic] change the characterization of pro bono work to just another profit center.
[19] I am unable to discern any recognizable legal principle in the above passage. It would appear on its bare reading to be more of a political argument than a juristic argument, and I give no effect to it.
[20] I am persuaded that the respondents shall have their costs of this matter on a partial indemnity basis; I am not persuaded that the conduct of the appellant in the issue of unpaid costs in the Landlord and Tenant Board proceeding can be transported into the appellant’s conduct in this forum so as to constitute the necessary measure of reprehensibility to justify an award of substantial indemnity based costs.
[21] I have reviewed the costs outline prepared by the respondents and the submissions made by counsel for the respondents. I award the respondents their costs as follows: for preparation and counsel fee, a total of $2,500 plus disbursements of $57, inclusive of H.S.T.
[22] The $2,500 award inclusive of H.S.T. shall be made on a pro bono basis. This award shall be made directly to the respondents whose counsel shall be at liberty to enter into an appropriate indemnity arrangement with the respondents. I am persuaded that this award is properly made on a pro bono basis. In this regard, I refer to the dicta from the Ontario Court of Appeal in 1465778 Ontario Inc., previously referred to, on the principle of access to justice and pro bono costs awards, in the following terms:
The legal profession in Ontario has a history of commitment to ensuring access to justice and providing pro bono services through its members. That history is reflected in today’s litigation environment where it is both appropriate and necessary that costs awards be available to successful pro bono litigants in ordinary private law cases both at the end of the case and on interlocutory motions. The principles that will guide the exercise of the court’s discretion in deciding when such costs will be awarded should be developed over time on a case-by-case basis. para 48 (Emphasis added)
[23] I am persuaded that the access to justice concerns for these respondents trump any objections by the appellant against a pro bono costs order in this case.
[24] In the result,
a) an Order respecting costs shall issue in accordance with the above paragraph; and
b) an Order shall issue amending the surname of the last respondent from “Vruezew” to “Vriezen.”
MacKenzie, J.
Released: October 22, 2014
CITATION: Kedzior v. Pond, 2014 ONSC 6157 DIVISIONAL COURT FILE NO.: DC-12-103 DATE: 20141022
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
TOMASZ JAN KEDZIOR Appellant
- and -
NATALIE KRISTINA POND; MEGAN SOLOMON; ABIGAIL ELLEN POST MENENDEZ; RACHEL RAINE VRUEZEW Respondents
ENDORSEMENT RE: COSTS
MacKenzie J.
Released: October 22, 2014