Court File and Parties

CITATION: Covenoho v. HomeLife Response Realty Inc., 2023 ONSC 168

COURT FILE NO.: DC 008/22

DATE: 2023 01 06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JOSS COVENOHO

Self-Represented

Plaintiff (Appellant)

• and -

HOMELIFE/RESPONSE REALTY INC. and RIGHT AT HOME REALTY INC.

A. Jarvis, for Homelife/Response Realty Inc.

D.E. Heffernan, for Right at Home Realty Inc.

Defendants (Respondents)

HEARD: In writing

COSTS ENDORSEMENT

LeMay J.

1The Appellant had appealed a decision of the small claims court dismissing her action for commissions as against both Respondents. I dismissed the Appellant’s appeal by way of reasons released on October 19th, 2022 (2022 ONSC 5877). Costs submissions were originally due in early November.

2I was advised that the Appellant had settled the issue of costs with the Respondent Homelife Realty and signed an order to that effect. However, the issue of costs was not settled as between the Appellant and the real estate agency that had engaged her, Right at Home Realty Inc.

3Right at Home provided its costs submissions on time. My assistant followed up with the Appellant to see whether she wished to make costs submissions. In an e-mail dated December 12th, 2022, the Appellant stated “what I usually have to say never appears to matter.” My judicial assistant advised her, inter alia, that “the Court always takes into account the positions that litigants advance”. The Appellant provided her submissions by e-mail on December 14th, 2022.

Positions of the Parties

4Right at Home seeks costs for the appeal in the sum of $7,567.00 all inclusive on a full indemnity basis or, in the alternative, $5,027.00 all inclusive on a partial indemnity basis. Right at Home claims its’ costs on the basis that the appeal was complex, the Appellant was unsuccessful, and the Applicant took steps that unnecessarily increased the costs of this appeal.

5The Appellant argues that Right at Home deserves no costs. She argues that Right at Home misled the Court in their factum and that both myself and the Deputy Judge relied on their factum over hers because Right at Home was represented by counsel and the Appellant was self-represented. The Appellant also argues that the Respondents misled the Court about the merits of the case.

Analysis

6I have read the Appellant’s costs submissions several times. They are an attempt to re-litigate the merits of the appeal. I have already rejected these arguments for the reasons set out in my decision on the appeal and I repeat and rely on that analysis. However, I will specifically address two points raised by the Appellant.

7First, the Appellant argues that both Deputy Judge Martel and I accepted the Respondents’ arguments because they were represented by lawyers. There is no basis for that submission. I accepted the Respondents’ arguments because in my view they were correct in law. The Appellant’s theory of the law in this case does not accord with the law that actually applies to the facts of this case.

8Second, the Appellant has claimed bias against Martel D.J. I have explained in my reasons in detail that there is no basis for a claim of bias in this case. Nothing in the Appellant’s submissions affects that conclusion in any way.

9This brings me to the merits of Right at Home’s demand for costs. The provisions of Rule 57.01 of the Rules of Civil Procedure set out the principles that I am required to consider in determining what costs should be awarded in this case. I have considered all of those principles and will now touch on the most relevant ones.

10First, there is the complexity of the matter. This was a complicated appeal that was made more complicated by the Appellant’s arguments on contract law and her attempts to introduce new issues on the hearing of the appeal. Both of these factors support a significant order of costs as against the Appellant.

11Second, and related to the first issue, is the fact that the Appellant took steps that tended to lengthen the duration of the proceedings. Specifically, the Appellant by introducing new issues on the hearing of the appeal made this matter more complicated.

12Third, there are the reasonable expectations of the parties. The Appellant’s factum was very detailed and complex and required close attention from the Respondents to address all the arguments that were made in the factum. It would not be unreasonable for the Appellant to expect that the amount of time (and therefore the legal costs) to respond to her arguments would have been higher given the issues that she raised.

13Given these factors, I am of the view that the costs claims made by Right at Home are reasonable in the circumstances.

14While Right at Home has set out its costs both on a partial and a substantial indemnity basis, no real argument was made that substantial indemnity costs were appropriate in this case. Rule 49 does not apply in this case. Therefore, substantial indemnity costs should not be awarded except in rare and exceptional circumstances. Jassal v. Kaith, 2020 ONSC 3257. Generally, substantial indemnity costs are only awarded where a party has behaved in an abusive, egregious or otherwise reprehensible manner. Skourtis v. City of Toronto, 2021 ONSC 4492 at para. 7.

15The Appellant’s views on the law are misguided. Her unfounded claims of bias against judicial officers are concerning. However, at this stage her arguments do not cross the threshold into abusive, egregious or otherwise reprehensible conduct. As a result, I am of the view that costs should be payable on a partial indemnity scale.

16The partial indemnity costs sought by Right at Home are reasonable. The Appellant shall pay those costs within thirty (30) days of today’s date.

Conclusion

17The Appellant shall pay the Respondent Right at Home Realty the sum of $5,027.00 inclusive of HST and disbursements on account of the appeal within thirty (30) calendar days of today’s date.

18This Order is in addition to any costs that were ordered by the Deputy Judge and any costs that are payable to the other Respondent.

LeMay J.

Released: January 6, 2023

CITATION: Covenoho v. HomeLife Response Realty Inc., 2023 ONSC 168

COURT FILE NO.: DC 008/22

DATE: 2023 01 06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT