Court File and Parties

Court File No.: CV-16-00547435 Motion Heard: 20181017 Superior Court of Justice - Ontario

Re: Norman Wong, Plaintiff And: Shane Smith, Nadine Smith, Joseph Sereda and Sereda & Sereda, Defendants

Before: Master B. McAfee

Counsel: Charles Haworth for the Plaintiff Shane Smith Defendant in Person Scott Rosen for the Defendants, Joseph Sereda and Sereda & Sereda

Heard: October 17, 2018

Endorsement Re: Costs

[1] On May 19, 2017, reasons for decision on the motion brought by the plaintiff Norman Wong (the plaintiff) for leave to issue a certificate of pending litigation (CPL) against two properties and for leave to amend the statement of claim were released (see 2017 ONSC 2721). The motion was granted.

[2] As set out at paragraph 32 of the reasons for decision, if any party sought costs, and if after reasonable attempts to agree on costs the parties were unable to agree, the parties could return before me to speak to the issue of costs.

[3] On or about August 1, 2017, the plaintiff served an amended notice of motion seeking costs of the motion.

[4] The plaintiff seeks costs of the motion in the all-inclusive amount of $16,090.50, including costs on a substantial indemnity basis from February 23, 2017. The plaintiff seeks costs payable by the defendants on a joint and several basis.

[5] The defendants Joseph Sereda and Sereda & Sereda (the Sereda defendants) seek costs of the motion on a substantial indemnity basis in the all-inclusive amount of $13,000.00. The Sereda defendants argue that costs are payable on this scale due to allegations of contempt and fraud. In the alternative, the Sereda defendants submit that costs be reserved to the trial Judge.

[6] After the plaintiff made submissions in support of his request for costs, and during the submissions on behalf of the Sereda defendants, the Sereda defendants made reference to a further affidavit that the defendants sought to “walk in.” I did not permit the defendants to “walk in” an affidavit. The plaintiff first requested that the issue of costs be dealt with over a year ago. The affidavit had only been provided to plaintiff’s counsel that morning.

[7] I am satisfied that the plaintiff is entitled to costs of the motion, but not in the amount sought. I am also satisfied that a different order than payment within 30 days would be more just. I am not satisfied that the defendants are jointly and severally responsible for the payment of costs. I am not satisfied that any other party is entitled to costs of the motion.

[8] The plaintiff was successful on the motion.

[9] The relief concerning the CPLs was the original relief sought on the motion. The relief concerning the amendments to the statement of claim was added shortly after the initial return date (see paras. 3, 27 and 28 of the reasons for decision).

[10] To the extent that the Sereda defendants submit that it was always their position that the proposed amendments to the statement of claim were not opposed by them is not consistent with their requests for adjournments of the motion or with the offer to settle dated February 22, 2017.

[11] I am not satisfied that the plaintiff is entitled to substantial indemnity costs from the date of the offer of February 23, 2017, as argued by the plaintiff. The issue of the CPLs remaining on title after trial including any appeals was not relief addressed on the motion. I have not ordered costs payable within 30 days.

[12] I have reduced the costs sought by the plaintiff. I have removed time for drafting the amended pleading. I have also removed time with respect to certain adjournments that were granted. I am not satisfied that the plaintiff is entitled to costs of the adjournment of May 20, 2016, that was granted as a result of a health issue of then counsel for the defendants. I am not satisfied that the plaintiff is entitled to costs of the adjournment of February 28, 2017, that was granted as a result of a new version of the proposed amended pleading having recently been served. Costs of the August 25, 2016, attendance was previously determined. The disbursements for the issuance of the statement of claim and registration of the CPLs are more appropriately dealt with as costs of the action.

[13] I am not satisfied that the defendants are jointly and severally liable for costs. Unlike the circumstances in Girgis-Boktor v. Reddy, 2016 ONSC 7503 (Ont. S.C.J.) relied upon by the plaintiff, the defendants were not the moving parties on the motion. The defendants did not together initiate an unsuccessful step in the proceeding.

[14] In my view, the plaintiffs are entitled to costs of the motion as against the Sereda defendants in the all-inclusive sum of $2,000.00, which is a fair and reasonable amount that the Sereda defendants could expect to pay for costs.

[15] I am also satisfied that the plaintiffs are entitled to costs of the motion as against the Smith defendants in all-inclusive sum of $6,000.00, which is a fair and reasonable amount that the Smith defendants could expect to pay for costs.

[16] Given the nature of the allegations made by the plaintiff, which have not been proven at this stage in the proceeding, it is just that these costs be payable to the plaintiff in the cause.

Order

[17] Order to go as follows:

1. Costs of the motion are fixed in the all-inclusive amount of $2,000.00 payable by the defendants Joseph Sereda and Sereda & Sereda and in the all-inclusive amount of $6,000.00 payable by the defendants Shane Smith and Nadine Smith, all payable to the plaintiff in the cause.

Master B. McAfee Date: October 22, 2018