SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 24727/09
DATE: 2012 11 26
RE: Shelley Nylander, Plaintiff/Moving Party
AND:
Catherine Martin and James Martin, Defendants/Responding Parties
BEFORE: E.J. Koke
COUNSEL:
Counsel, for the Plaintiffs/Moving Party, Libero C. Paci
Counsel, for the Defendants/Responding Parties, Augusto Palumbo
Costs ENDORSEMENT
[ 1 ] The plaintiff, Shelley Nylander commenced an action for damages against the defendants, Catherine and James Martin with respect to the purchase of a house from the defendants.
[ 2 ] The matter was originally placed on the December, 2009 assignment court list to set a trial date. It was not reached at the December, 2009 sittings and thereafter the parties have been unsuccessful in obtaining a trial date from the court.
[ 3 ] Eventually, the plaintiff brought a motion for summary judgment, in which she argued that there was no genuine issue requiring a trial in the action. The motion was heard on November 1, 2012 and she was unsuccessful. In dismissing the motion, the court ordered the following terms and ancillary relief:
a. The matter was to be pre-tried again on an expedited basis, following a period of 60 days from the release of the decision.
b. Since it appeared that both parties required amendments to their pleadings, they were given an opportunity to so, provided they did so within 60 days.
c. Since it appeared that there was good reason for both parties to consider retaining other experts, or obtain updated and amended reports, they were given 60 days to do so and to exchange reports. Also, if the parties deemed it necessary to bring other motions for relief, they were to do so within 60 days.
d. The parties were ordered to provide a statement setting out what material facts are not in dispute at the pre-trial.
e. The parties were to provide a witness list and a written summary of the evidence to be given by each of the witnesses, at the pre-trial.
f. The parties were to provide a concise statement of their opening statement at the pre-trial.
g. The parties were to be in a position to set a trial date, in conjunction with the trial co-ordinator and the pre-trial judge at the pre-trial.
[ 4 ] The defendant, Catherine Martin filed a motion for summary judgment as well. At the hearing, the plaintiff consented to the withdrawal of the action against Catherine Martin.
[ 5 ] The defendants have submitted a bill of costs in the total sum of $7,232.65 calculated as follows:
Fees: $6,255.00 ($300 per hour times 20.85 hours)
HST on Fees: $813.15
Disbursements: $187.00
HST on disbursements: $7.80
Total: $7,232.65
[ 6 ] I have decided to fix costs in the amount of $3000 for fees, plus disbursements and HST and my reasons for doing so are as follows:
[ 7 ] Firstly, I am not prepared to grant costs to the defendants with respect to Ms. Martin’s motion for summary judgment. In my view, it was entirely reasonable for the plaintiff to issue the claim against both defendants. They were joint owners of the house and the plaintiff was purchasing it from the two of them. Although the SPIS, on which she alleges she relied was only signed by Mr. Martin, it was not unreasonable for her to assume that it was delivered to her on behalf of both vendors, thereby making them both liable for any misrepresentations contained therein.
[ 8 ] It was clear that the reason why the plaintiff was persuaded to withdraw the claim against Ms. Martin was because she accepted the evidence at the hearing that Ms. Martin was experiencing health issues and was unable to communicate at the time of the real estate transaction. The defendants argue that Ms. Nylander should have consented to the withdrawal of the claim against Ms. Martin when asked to do so prior to the date of the motion. I would agree with this submission if Ms. Martin had pleaded this disability in her statement of defence. To the contrary, the defendants pleaded in their defence that they had communicated a prior issue with respect to water damage to the plaintiff prior to accepting the plaintiff’s offer to purchase.
[ 9 ] Secondly, it was clearly not the plaintiff’s first choice to proceed by way of summary judgment motion. At the time the motion was filed the plaintiff had waited approximately two and a half years for a trial date. In the circumstances, it was not unreasonable for her to consider a more efficient avenue to obtain redress, even if it involved the risk that the court would determine that there were some issues which did require a trial.
[ 10 ] Thirdly, in my view, both parties have benefited from the decision of the court. The matter is now effectively being case managed and arrangements have been made for them to receive a fixed court date at the pending pre-trial.
[ 11 ] Fourthly, the amount claimed by the plaintiff is modest, comprising the sum of $39,480. The defendants have assessed damages at $5000. A claim for costs in excess of $7000 is disproportionate to the amount claimed.
[ 12 ] Fifthly, I find that the amount of costs claimed is in excess of the amount which the plaintiff could reasonably have expected to pay. The motion took a mere one hour and twenty minutes to argue. The affidavits were brief, comprising little more information than that contained in the pleadings, as well as expert reports. This is not a complex proceeding.
[ 13 ] In conclusion, I am fixing costs payable to the defendants as follows:
Fees: $3,000
HST on Fees: $390
Disbursements: $187.00
HST on disbursements: $24.31
Total: $3601.31
[ 14 ] Although the usual practice is to order costs of a motion to be paid within 30 days, in this case I am ordering that they be paid at the conclusion of the trial. In deciding to delay the payment of costs I note that the plaintiff purchased her house almost 4 years ago, in December of 2008. She discovered that water was flooding into her basement a mere 22 days after the transaction closed. Although she commenced her claim in a timely manner, she has now waited almost three years for a trial date. Also, she will incur costs in proceeding to trial. The circumstances of this case are such that it was not unreasonable for her to commence this action and it is not my desire to place any more obstacles in her path.
E.J. Koke J.
Date: November 26, 2012