COSTS ENDORSEMENT
COURT FILE NO.: CV-11-27202
DATE: 2012-04-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Home Trust Company , Plaintiff
AND:
Barbara Sheehan and Timothy Sheehan, Defendant(s)
BEFORE: The Honourable Mr. Justice A.C.R. Whitten
COUNSEL: Amanda Jackson, Counsel for the Plaintiff
Barbara Sheehan and Timothy Sheehan, Self Representing
RELEASED: April 30, 2012
COSTS ENDORSEMENT
[ 1 ] This court, for reasons expressed in open court January 31 st , 2012, granted the plaintiff summary judgment and a writ of possession. The only outstanding issue was that of costs.
[ 2 ] One of the factors influencing the quantum of costs was an outstanding judgment of costs by my colleague Justice Lafreniere. That judgment has now been issued and taken into account by counsel for the plaintiff in calculating the costs attributable to this particular motion. Counsel for the plaintiff was to provide the net cost submissions, as it were, within 15 days of the receipt of the reasons of Lafreniere J. The Sheehans were to have 30 days from the receipt of those net submissions to submit their written argument on the issue. That time has come and gone without the court receiving the Sheehans’ submissions.
[ 3 ] This court indicated on January 31 st , 2012, that the rate applicable to the costs would be by virtue of the mortgage covenant, and the conduct of the Sheehans in resisting a potentially obvious motion for summary judgment by raising issues that they had allowed to lapse or failed to pursue in the past, at a substantial indemnity rate.
[ 4 ] The conduct of the Sheehans described in the oral reasons of January 31 h , 2012, is mindboggling, certainly within the parameters of Rule 57.01(1)(e) and (f) pertaining to “the conduct of a party that tended to lengthen unnecessarily...a proceeding and was vexatious or unnecessary”.
[ 5 ] The Sheehans appeared to have abandoned all common sense in discharging their contractual obligations to the plaintiff. They have, with Justice Lafreniere’s decision in this court, incurred costs which they could have so easily avoided by addressing their outstanding indebtedness on the original mortgage.
[ 6 ] Regrettably, this behaviour continues. The Sheehans have moved to transfer the proceeding to Toronto on a motion returnable May 4 th , 2012. They seek leave to appeal the decision of Lafreniere J. They seek leave to consolidate this motion for summary judgement with that appeal. Finally, they seek to stay the writ of possession.
[ 7 ] The profound hope is that the Sheehans will finally wake up and realize how they are hurting themselves. In the meantime it’s sad to see how two apparently intelligent people could so act.
[ 8 ] From a review of the revised cost outline, one makes the following observations:
a) that the fees associated with the initial efforts of William Walker appear to be somewhat high when the documentation produced would readily be available through precedent; and
b) some of the efforts of a principal counsel, Ms. Jackson, appear to be directed to the change of venue motion and leave to appeal, both which are yet to be heard.
[ 9 ] Taking these factors into consideration, costs are fixed at $13,000.00 inclusive of disbursements.
The Honourable Mr. Justice A.C.R. Whitten
Date: April 30, 2012