ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-29844
DATE: 2012-09-25
B E T W E E N:
TERRANCE FULTON, STEPHEN FULTON and DAVID FULTON
Robert W. Collins, Counsel for the Applicants
Applicants
- and -
802048 ONTARIO LTD. and 849893 ONTARIO LTD.
Jonathan Jacobs, Counsel for the Respondent 802048 Ontario Ltd.
Respondents
RULING ON COSTS
GLITHERO J.
[ 1 ] For written reasons released on June 29, 2012, I granted the application and ordered that two mortgages be discharged. The first was instrument VM73817 and it was ordered to be discharged because the evidence before me indicated that the debt that it secured had been paid. That order was not contested.
[ 2 ] I also ordered that a fourth mortgage on the property, as described in para. [5] of the earlier reasons, be discharged. That discharge was based on the fact that I found recovery on that mortgage to be statute barred by reason of the Real Property Limitations Act, R.S.O. 1990 c.L.15. Nothing had been paid on the mortgage for in excess of 20 years, and there had been no written demands for payment, and no written acknowledgment of the debt.
[ 3 ] In para. [33] of my reasons I suggested that this may not be an appropriate for costs, but left it to counsel if they wished to make submissions. If so, I directed that the submissions be in writing and that they be sent to my chambers in Kitchener at a stated address within three weeks of the release of the ruling, and with responding submissions three weeks thereafter.
[ 4 ] Nothing was heard from counsel until submissions from counsel for the applicants, dated September 4, 2012, and faxed the same day, were received at judge’s chambers in Hamilton. The applicants seek costs for this half day application on a substantial indemnity basis in the total amount of $22,417.78 for fees, disbursements and HST. Then on September 24, 2012 submissions bearing that date were received by fax at judge’s chambers in Hamilton.
[ 5 ] The factors said to entitle the applicants to such an order of costs are that they were successful in the application, the factual record was diverse and complex, the legal issues were numerous, diverse and complex, and that I shouldn’t have any sympathy for the financial consequences of a costs order.
[ 6 ] I’ve had regard to the factors enumerated in r. 57 of the Rules of Civil Procedure. I acknowledge that the applicants were successful.
[ 7 ] As far as the other factors go, I do not accept that this was a complex matter or involved overly complex issues. I am of that view even though both sides urge me to conclude otherwise. Once a description of how the mortgages came to exist was placed before the court, the fact of the matter is that very little happened for over 20 years.
[ 8 ] I take into account that I have not been advised of any offers to settle this matter.
[ 9 ] I also note that subsection (i) requires me to consider “any other matter relevant to the question of costs.” I take into account here that the result of this application is that the applicants have avoided paying what was a valid and legal debt in a principle amount of $142,300. While they took the position that the property in respect of which the mortgage was given was not worth what they had agreed to pay, they did nothing by way of any court proceeding to establish that position in order to be relieved of their responsibility for that debt.
[ 10 ] The fact of the matter is, at least on my findings, the respondents did nothing to demand payment in writing as is required by the statute. The applicants were either smart enough or lucky enough to have done nothing the duration of the limitation period such as to become the beneficiary of the windfall created by the limitation period. This is not a case where the applicants had to come to court to resist efforts by the respondents to enforce the debt. Rather, it is a situation where the applicants waited until the expiration of the limitation period and then sought to extinguish their liability, even though no efforts were being made to collect from them.
[ 11 ] The submissions on behalf of the applicants were extremely late.
[ 12 ] The submissions on behalf of the respondents consist of 25 paragraphs. The first 10 paragraphs repeat the submissions advanced by the respondents on the merits during the hearing of the motion. The next 3 paragraphs express disagreement with various submissions advanced by the applicants. The next 2 paragraphs quote the Courts of Justice Act, and the provisions of Rule 57.
[ 13 ] The remaining paragraphs assert the reasons why the respondents urge that there be no order as to costs. Amongst them is the submission that the issues were extremely important to not only the parties, but rather to “the general jurisprudence”. If this is meant to assert some level of great public importance, I simply observe that in my experience relatively few debts in relation to real estate, as between arm’s length participants, go unpaid and without demand for over 20 years.
[ 14 ] I need not detail these arguments as I have reached that same result after considering the applicants’s submissions.
[ 15 ] After considering all the circumstances, I am of the view that this is not an appropriate for costs, and none will be ordered.
“C. S. Glithero”
Glithero J.
Released: September 25, 2012.
COURT FILE NO.: 11-29844
DATE: 2012-09-25
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TERRANCE FULTON, STEPHEN FULTON and DAVID FULTON Applicants
- and –
802048 ONTARIO LTD. and 849893 ONTARIO LTD. Respondents
RULING ON COSTS
Glithero J.
CSG//dm
Released: September 25, 2012