Layland v. Canadian Co-Operative Association, 2015 ONSC 3347

Court File and Parties

Citation: Layland v. Canadian Co-Operative Association, 2015 ONSC 3347 Divisional Court File No.: 443/14 Court File No.: 97-CU-121825 Date: 2015-05-26 Superior Court of Justice – Ontario Divisional Court

Re: Greta Layland, Plaintiff (Respondent) And: Canadian Co-Operative Association and Co-Operators Life Insurance Company, Defendants (Respondents)

Before: Lederer J.

Counsel: Plaintiff (responding party), in person Pamela Miehls, for Co-Operators Life Insurance Company, Defendant (moving party)/Respondent No one appeared for Canadian Co-Operative Association, Defendant/Respondent

Costs Endorsement

1This was a motion for leave to appeal.

2The action was commenced by Notice of Action, dated April 10, 1997, and a Statement of Claim which was delivered on May 5, 1997.

3The action was stayed as of July 10, 2001.

4On January 23, 2014, a motion was heard seeking to lift the stay and dismiss the action for delay. The former was granted (the stay was lifted); the latter was not (the action was left to proceed). This motion was for leave to appeal the refusal of the motion judge to dismiss the action.

5Leave was granted.

6The defendant seeks its costs of the motion for leave to appeal in the amount of $9,544.79, including $8,791.40 for fees and $753.39 for disbursements. This is said to be far below the value of the time actually taken up by the motion.

7For her part, the plaintiff says she is impecunious and unable to pay and reiterates the position taken at the motion that the defendant shares the blame for the delay.

8In the circumstances of this case, I am unprepared to find that the financial circumstances of the plaintiff have any role to play in this decision. Quite apart from the cases on which the defendant relies, to say that this issue should not be part of any decision as to costs¹ is the fact that the plaintiff has not acted in a fashion that is consistent with these difficulties. If a party is prepared to let a matter drag on as this one has, it has to be anticipated that there could be cost consequences. Even those unfamiliar with the process of the courts have to recognize that excessive delay bears that risk. Repeating the submission made on the merits is similarly unhelpful.

9Having said this, what is being requested is too high. Proportionality is a consideration. Ultimately, this argument would have repeated much of what was said before the motion judge. The relevant factors would not have been new.

10Costs are awarded to the defendant, to be paid by the plaintiff, in the amount of $3,500, inclusive of fees, disbursements and HST.

Footnotes

1. 1Robb v. St. Joseph’s Health Care Centre, [1999] O.J. No. 1461 (Sup. Ct.) and Cicinski v.Ontario (Minister of Transportation) 2014 ONSC 1052