Court File and Parties

Court File No.: C-06-4231-SR
Date: 2012-11-20
Superior Court of Justice – Ontario

RE: Karen Primeaux-Kostka, Plaintiff

and

Aventine Co-operative Homes Inc., Defendant

Before: The Honourable Mr. Justice R.D. Reilly

Counsel:
P. Machado, for the Plaintiff
R. Simmons, for the Defendant

ruling as to costs by
the honourable mr. justice r.d. reilly

Ruling as to Costs

[ 1 ] The parties have now filed written submissions as to costs. The trial took place over four days in 2009 and 2012. After consideration of all the evidence, I denied the plaintiff’s claims for compensation for medication, for physical pain and suffering and emotional pain and suffering, together with her claim for “mental anguish” and what she referred to as “the delay in proceedings”. I did grant to the plaintiff compensation for rent paid in the amount of $294.00 and $850.00, representing the return of her “member deposit”. The principal award of damages was for $12,000.00 to compensate the plaintiff for the loss of her personal property removed from her residence by the defendant. Thus, the plaintiff received a total damages award of $13,144.

[ 2 ] The plaintiff now seeks an award of costs given her relative success at trial. The defendant concedes in effect that some award of costs would be appropriate, but quarrels with the quantum which is requested by the plaintiff. The court has a discretion to award costs pursuant to section 131 of the Courts of Justice Act . It is accepted that a successful party has a presumptive entitlement to costs in a civil action. Even that presumptive right, however, is not absolute (see Rule 57.01(2)). The court clearly has a discretion as to the quantum of costs guided however by the principles set out in Rule 57.01(1). I am mindful of those principles. In this case, I am particularly mindful of the principles enunciated in Rule 57.01(1)(0.b), (a), (c), (d) and (i). I am mindful for instance that the defendant is a non-profit co-operative. I am also mindful that the plaintiff, at least historically, was not well off.

[ 3 ] The plaintiff was represented by two different law firms during the course of this litigation. It was a lawyer for the firm of Matlow, Miller, Harris & Thrasher that appeared for her at trial. Prior to that representation, she was apparently represented by another law firm and paid fees according to her claim of $1,323.58 to her initial lawyers. As best I can conclude from her bills of costs, she paid fees to her counsel at trial in the amount of $1,800.00. Her disbursements for the most part seem straightforward and are not contested by the defendant.

[ 4 ] In all candour, I find the bills of costs submitted by the plaintiff to be difficult to decipher and interpret. There is a costs outline submitted by the plaintiff and signed by her dated October 23, 2012, claiming total costs in the amount of $8,766.74. There is also a bill of costs submitted by the plaintiff dated October 15, 2012 claiming total costs of $8,762.34. There is as well a costs outline dated October 24, 2012 signed by the plaintiff claiming total costs of $4,343.65, together with a bill of costs dated the same day, October 24, 2012 in that same amount, $4,343.65. No explanation is given, nor is one apparent for the difference between these claims. It may be, given the lack of detail, with respect to her claims, that the plaintiff simply reconsidered her

position as of October 24, 2012 and decided to claim the lower amount. I would note that the plaintiff’s claim for reimbursement for the time which she herself spent in dealing with this litigation (describing herself as a “law clerk”), I discount as being unjustified. I note as well the inclusion in the plaintiff’s claim for costs dated October 23, 2012, an award of costs apparently directed by Milanetti J. on October 28, 2010. I have no idea what that costs order involved (presuming it was made). If such costs order was made, it should not be part of a costs order made by this court in any event (unless the original costs order specifically so stated).

[ 5 ] In sum, I find the plaintiff’s written submissions as to costs to be somewhat confusing. Taking all factors into account, I direct that the plaintiff shall be entitled to costs set at $3,950.00, inclusive of disbursements and taxes. Costs are payable forthwith.

R.D. Reilly J.

Released: November 20, 2012