CITATION: Skrobacky v. Frymer, 2014 ONSC 7177
DIVISIONAL COURT FILE NO.: 433/14
DATE: 20141210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally and in their capacities as Trustees of the Skrobacky Family Trust 2 and MADELON NIMAN and SUZAN ZARNETT in their capacities as Trustees of the Skrobacky Family Trust 2, for and on behalf of Es-Lea Holdings Limited, Es-Lea Investments Limited and K.R.S. Construction Limited, and RACHEL SKROBACKY, by her guardians Madelon Niman and Suzan Zarnett, for and on behalf of 2127890 ONTARIO LIMITED
Plaintiffs
– and –
JACK FRYMER and SAMUEL STERN, (also known as SAM STERN), JANICE STERN, CAROL FRYMER GARFIN ZEIDENBERG LLP, STEINBERG MORTON HOPE & ISRAEL LLP, STACY MITCHELL, THE CANADA TRUST COMPANY, in its capacity as Estate Trustee during Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED, K.R.S. CONSTRUCTION LIMITED, CAMWOOD CONSTRUCTION LIMITED, CAMWOOD INVESTMENTS LIMITED, QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVSETMENTS INC., JANFAR HOLDINGS LIMITED, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDING LTD.,JORDALE MANAGEMENT INC., 1253174 ONTARIO LTD., MAX STERN INVESTMENTS LIMITED, BAYCREST CENTRE FOR GERIATRIC CARE, ISRAEL SOLDIERS FUND, JEWISH NATIONAL FUND OF CANADA, BETH DAVID SYNAGOGUE OF TORONTO, ZAREINU EDUCATION CENTRE, ADAM NIMAN, DALE NIMAN, JEREMY NIMAN, DARA ZARNETT, DAVID ZARNETT, FRANCIS CUTLER, (also known as FRANCES CUTLER HAHN) and MERCEDES STEWART
Defendants
AND BETWEEN:
QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED
Plaintiffs by Counterclaim
AND BETWEEN:
RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT, personally and in their capacities as Trustees of the Skrobacky Family Trust 2 and 2127890 ONTARIO LIMITED
Defendants by Counterclaim
AND BETWEEN:
JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., CAROL FRYMER, 1253174 ONTARIO LTD., QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED
Plaintiffs by Crossclaim
AND BETWEEN:
THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED and K.R.S. CONSTRUCTION LIMITED
Defendants by Counterclaim
Sheila R. Block for the Plaintiffs/Defendants by Counterclaim
David P. Chernos, for the Plaintiffs/ Defendants by Counterclaim
Marni D. Pernica¸ for the Defendants, Samuel Stern (also known as SAM STERN), Janice Stern, S. Stern Financial Corporation, Jan-Sam Holdings Ltd., and Jordale Management Inc.
Alan B. Dryer, for the Defendants, Jack Frymer, Carol Frymer and 1253174 Ontario Limited
Dominique S. Michaud, for the Defendant, Stacy Mitchell
Albert S. Frank, for the Defendants, King Peter Investments Inc., Queen Peter Holdings, Queen Brown Holdings Inc., Max Stern Investments Limited and Janfar Holdings Limited
HEARD at Toronto: December 10, 2014
CORRECTED DECISION
The text of the original judgment was corrected on January 21, 2015 and is reflected on page 7.
HARVISON YOUNG J. (orally)
[1] The plaintiffs/applicants seek leave to appeal a cost order made against them following their successful motion to amend the statement of claim. Greer J. awarded an amount totalling $24,000 in favour of certain defendants, which she stated was “a reasonable amount of costs to cover having to redraft documents and attend on further discoveries”: see paras. 20 of the appellant’s factum. The plaintiffs do not challenge that amount.
[2] The subject of the leave application is the $52,000 total amount that the motions judge awarded against the plaintiffs as costs of the motion.
[3] The plaintiffs submit that the decision is irrational and wrong in principle. They submit that it is one of those rare cost awards that is so “off base” that it should not be left unchallenged, and that it risks creating a change in the existing law that could have dangerous precedential effects. Ms. Block submits that the motions judge misapplied the “indulgence” principle upon which she relied in awarding costs against the plaintiffs despite the fact that they succeeded in their motion to amend.
[4] An amendment pursuant to Rule 26.01 is not an “indulgence” but rather something which “shall” be granted. By characterizing a presumptive entitlement as an indulgence and then relying upon that as a reason for departing from the general “costs follow the event” rule, Ms. Block argues the motions judge turned the costs regime on its head.
[5] Despite Ms. Block’s able submissions, I do not find that the stringent test for leave set out in Rule 62.02(4) is made out in this case.
[6] Turning first to Rule 62.04(4)(b), I am not persuaded that there are conflicting decisions on costs. Different results of the exercise of discretion will not constitute conflicting decisions within the meaning of Rule 62.02(4)(a). It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such discretion: Comtrade Petroleum Inc. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] O.J. No. 652 (Div. Ct.).
[7] Here, the essence of the appellant’s submission with respect to “indulgence” is that the motions judge misapplied the principle to this case, not that there are conflicting decisions on the principles that need resolution by an appellant level court.
[8] Turning to 62.02(4)(b), the plaintiffs’ argument is that there is serious reason to doubt the correctness of the motions judge’s decision because she misapplied the “indulgence” principle and derogated from the usual costs rule. Ms. Block points to the cases cited by the motions judge at para. 7 of her reasons where she referred to Freeman v. Turcott and Lionel v. Williamson, 2011 CarswellOnt. 5872 as illustrations. She submits that unlike the case at bar, the amendments there were necessary due to the moving party’s own mistakes and thus the amendments were in fact indulgences. Here, she argues the amendments sought arose after discovery of certain defendants which pointed to the need to add Mr. Mitchell as a defendant.
[9] There are two problems with this submission. First, the defendants do not concede that the plaintiffs could or should not have known pre-discovery that it would be necessary to amend the pleadings with respect to the role allegedly played by Mr. Mitchell. This was clearly a part of a factual dispute which the motions judge was well aware of as the case management judge. The characterization, for costs purposes of the amendment, as an “indulgence” was made in the context of a factual history and matrix in this case, which is emblematic of the reason for deference and the standard of palpable and overriding error that applies to findings of fact and mixed and law: Housen v. Nikolaisen,[2001] 2 S.C.R. 235. In the context of these very specific facts and circumstances, I am not persuaded that this characterization constituted a palpable and overriding error.
[10] This factual matrix, and the fact specific nature of the decision, leads me to the second limb of the conjunctive test in Rule 62.02(4)(b). I do not agree that the motions judge articulated any change in the law that is likely to wield a precedential effect on the law that would render this issue one of such importance that, in my opinion, leave to appeal should be granted.
[11] I also note that the motions judge was alive to the considerations to be applied in determining a cost award. She noted:
When fixing Costs, the Court must consider the circumstances of each case and the principle of proportionality. This case is a complex case with many Defendants. All parties have a lot at stake in its outcome.
[12] She considered each defendant’s claim and reduced the quantum awarded from that sought.
[13] In conclusion, I am not satisfied that this is one of those “rare cases” where it is obvious that the motions judge’s discretion with respect to costs was wrongly exercised, particularly when reading her reasons as a whole: Brad-Jay Investments v. Szijjarto, 2006 42636 (ON CA), [2006] O.J. No. 5078 at para. 21 (C.A.), McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA paras. 23-27 (C.A.).
[14] Here, even if there is reason to doubt the correctness of the motions judge’s cost decision, the proposed appeal is not of such importance that, in my opinion, leave to appeal should be granted. Given the nature and complexity of this litigation, along with the factual and procedural history between the parties, as well as the highly discretionary nature of costs, this is a “one-off” costs award and not one with a likely precedential impact.
[15] The appeal is therefore dismissed. I thank counsel very much for their assistance and material.
[16] I have endorsed the Supplementary Motion Record, “The application is dismissed for reasons delivered orally. Costs, on consent, payable by the plaintiffs/applicants as follows: $4,000 to Mr. Mitchell, $3,000 to all the other defendants to be divided up as agreed among themselves. The above amounts are all inclusive.”
HARVISON YOUNG J.
Date of Reasons for Judgment: December 10, 2014
Date of Release: December 16, 2014
Date of Correction: January 21, 2015
CORRECTION NOTICE
Corrected Decision: The text of the original judgment was corrected on January 21, 2015 and is reflected on page 7.
Corrected Decision: The text of paragraph 16 was corrected on January 21, 2015. Costs, on consent, payable by the plaintiffs/applicants as follows: $1,000 to Mr. Mitchell, has been changed to $4,000 to Mr. Mitchell. Paragraph [16] now reads:
[16] I have endorsed the Supplementary Motion Record, “The application is dismissed for reasons delivered orally. Costs, on consent, payable by the plaintiffs/applicants as follows: $4,000 to Mr. Mitchell, $3,000 to all the other defendants to be divided up as agreed among themselves. The above amounts are all inclusive.”
CITATION: Skrobacky v. Frymer, 2014 ONSC 7177
DIVISIONAL COURT FILE NO.: 433/14
DATE: 20141210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally and in their capacities as Trustees of the Skrobacky Family Trust 2 and MADELON NIMAN and SUZAN ZARNETT in their capacities as Trustees of the Skrobacky Family Trust 2, for and on behalf of Es-Lea Holdings Limited, Es-Lea Investments Limited and K.R.S. Construction Limited, and RACHEL SKROBACKY, by her guardians Madelon Niman and Suzan Zarnett, for and on behalf of 2127890 ONTARIO LIMITED
Plaintiffs
– and –
JACK FRYMER and SAMUEL STERN, (also known as SAM STERN), JANICE STERN, CAROL FRYMER GARFIN ZEIDENBERG LLP, STEINBERG MORTON HOPE & ISRAEL LLP, STACY MITCHELL, THE CANADA TRUST COMPANY, in its capacity as Estate Trustee during Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED, K.R.S. CONSTRUCTION LIMITED, CAMWOOD CONSTRUCTION LIMITED, CAMWOOD INVESTMENTS LIMITED , QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVSETMENTS INC., JANFAR HOLDINGS LIMITED, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDING LTD.,JORDALE MANAGEMENT INC., 1253174 ONTARIO LTD., MAX STERN INVESTMENTS LIMITED, BAYCREST CENTRE FOR GERIATRIC CARE, ISRAEL SOLDIERS FUND, JEWISH NATIONAL FUND OF CANADA, BETH DAVID SYNAGOGUE OF TORONTO, ZAREINU EDUCATION CENTRE, ADAM NIMAN, DALE NIMAN, JEREMY NIMAN, DARA ZARNETT, DAVID ZARNETT, FRANCIS CUTLER, (also known as FRANCES CUTLER HAHN) and MERCEDES STEWART
Defendants
AND BETWEEN:
QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED
Plaintiffs by Counterclaim
AND BETWEEN:
RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT, personally and in their capacities as Trustees of the Skrobacky Family Trust 2 and 2127890 ONTARIO LIMITED
Defendants by Counterclaim
AND BETWEEN:
JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., CAROL FRYMER, 1253174 ONTARIO LTD., QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED
Plaintiffs by Crossclaim
AND BETWEEN:
THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED and K.R.S. CONSTRUCTION LIMITED
Defendants by Counterclaim
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: December 10, 2014
Date of Release: December 16, 2014
Date of Correction: January 21, 2015