ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-93 Cayuga File
DATE: 2012/02/01
BETWEE N:
JOZEF ZUBRZYCKI
H. Szpiech, for the Plaintiff
Plaintiff
- and -
GREGORY KOPER
C. Argiropoulos, for the Defendant
Defendant
The Hon. Mr. Justice Arrell
JUDGMENT ON COSTS
Introduction:
[ 1 ] The plaintiff brought this motion for summary judgment on the basis that there was no issue for trial as the defendant was not engaged in farming on the mortgaged property as that term is defined in the Farm Debt Mediation Act , S.C. 1997 C. 21.
[ 2 ] I concluded that the plaintiff was correct and awarded judgment and possession under the mortgage.
[ 3 ] The parties were invited to make written submissions on costs if they could not agree. I have received submissions from the plaintiff but nothing from the defendant.
Analysis:
[ 4 ] The plaintiff seeks substantial indemnity costs.
[ 5 ] The plaintiff has been totally successful in this application. It was clear that the defendant was not engaged in farming on the property and had defaulted on the mortgage.
[ 6 ] The charge on the property #200033 states at paragraph 8 that the plaintiff is entitled to legal fees incurred to recover the possession of the land on a solicitor and client basis.
[ 7 ] The plaintiff also served a rule 49 Offer more than 7 days before the hearing of this matter offering to accept possession and costs. No Offer has been filed by the defendant. The plaintiff has obtained judgment as favourable as his offer. The rule provides that the plaintiff is entitled to partial indemnity costs up to the date of the offer and substantial indemnity thereafter.
[ 8 ] The plaintiff urges me to find that the defendant acted in bad faith or unreasonably for the sole purpose of delay pursuant to rule 20.06. I disagree.
[ 9 ] The defendant’s position was not accepted by me and indeed I found that the evidence of the defendant lacked credibility in regard to his view as to whether he was farming. That occurs in many cases and does necessarily mean bad faith as the term has been defined in the case law. I am also not persuaded that the defendant acted unreasonably in seeking a hearing on the issue of farming on the property, even though unsuccessful.
[ 10 ] The fact remains however that the parties entered into a contract that provided for substantial indemnity costs if the very circumstances transpired that occurred in the case at bar. There is no evidence to suggest that the plaintiff engaged in any inequitable conduct or that there are any special circumstances which might render the imposition of substantial indemnity costs harsh or unfair.
[ 11 ] I conclude that based on the contract the plaintiff is entitled to substantial indemnity costs. In determining quantum the court is to consider the various factors set out in Rule 57.01 of the Rules of Civil Procedure . I have considered those factors.
[ 12 ] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.) and find that costs to the plaintiff on a substantial indemnity basis in all the circumstances is fair and reasonable to both sides and within their respective expectations.
[ 13 ] The plaintiff claims substantial indemnity costs of $ 9989.79 plus $1500.00 owing from the hearing before Campbell J. regarding the setting aside of the default judgment, inclusive of disbursements and taxes. I find some of the mileage disbursements to be non-recoverable against the defendant. I also consider the amount of time spent somewhat excessive under the proportionality criteria especially considering that the actual hearing was not much more than 1 hour. I acknowledge that cross-examinations on affidavits did take place and were helpful to the court.
[ 14 ] I conclude that fair and reasonable costs under all the circumstances should be fixed at $10,000 inclusive of taxes and disbursements payable by the defendant to the plaintiff forthwith.
ARRELL, J.
Released: February 1, 2012
Additional Text
COURT FILE NO.: CV-11-93 Cayuga File
DATE: 2012/02/01
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: JOZEF ZUBRZYCKI Plaintiff - and - GREGORY KOPER Defendant REASONS FOR JUDGMENT ARRELL, J.
Released: February 1, 2012