ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-00465441-0000
DATE: 20130627
BETWEEN:
ELLEN McGREAL HOUSING
CO-OPERATIVE INC.
Applicant
– and –
MELANIE MOYER
Respondent
Bruce D. Woodrow, Counsel for the Applicant
Alysha Shore, Counsel for the Respondent
HEARD: JUNE 27, 2013
endorsement: greer j.:
[1] The Applicant Ellen McGreal Housing Co-operative Inc. (“the Co-Op”) and the Respondent, Melanie Moyer (“the Tenant”) have entered into Minutes of Settlement dated June 18, 2013, respecting the Co-Op’s Eviction decision regarding the Tenant over her arrears of rent and her repeated failure to pay housing charges in full and on time. The Tenant rents Unit 602 in the Co-Op and has lived there with her son for the past 12 years, having moved in around May 1, 2001.
[2] The parties agree that there has been a history of late payments and partial payments for the rent by the Tenant. The Tenant has set out in her Affidavit, some of the difficulties she experienced both financially and personal during that period. These can be summarized as follows:
Her son, Jayden, was 2 years old when they moved into the unit. In kindergarten, Jayden was diagnosed as having Tourette’s Syndrome. Later he had the additional diagnoses of ADHD and Obsessive Compulsive Disorder. He will be 16 next month. He requires consistency in his life.
In 2003 she lost her job and did work full-time after that until 2011.
In March 2011, she was on long-term disability.
In February 2012, the Board notified her of arrears of $524 and paid the arrears off at $10 per month.
On October 12, 2012, she was served with an eviction notice by the Board. Rent owing was $l,929. Her monthly rent was $l,094 per month.
By December 2012, all arrears were paid up.
[3] Currently, the Tenant receives Ontario Works of $1,700 per month. Under the Settlement, she is to pay an additional $50 per month against any Costs award made against her. She is looking for employment. The father of her son pays no child support.
[4] The Co-Op seeks Costs on a full indemnity basis. The Costs, as set out in its Bill of Costs of $21,269.70 inclusive of $501.57 for disbursements and HST of $2,384.86 plus HST of $1.67 on disbursements.
[5] It is the position of the Tenant that such Costs are excessive, unfair and unreasonable. In her view, the Costs should be reduced accordingly. She says the Costs are disproportionate to the amount, which is at stake in this proceeding. She says the Co-Op would not try to settle the issue of Costs, leaving no room for negotiations, when the arrears were paid in full.
[6] It is the Co-Op’s position that Housing Co-operatives are democratic organizations, based on a concept of collective co-ownership. There are by-laws and rules, which tenants must comply with. The relationship between the Co-Op and the Tenant is fundamentally different from a landlord-tenant relationship. It operates under the Co-Operative Corporation Act (“the Act”).
[7] Costs of an application under the Act are in the discretion of the judge hearing the application under subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Co-Op’s By-Laws, however, in this case, provide that in eviction matters, the legal costs are to be on a solicitor and his or her own client scale. This says the Co-Op, translates into the current full indemnity scale.
[8] The Co-Op relies on the decision of Mr. Justice Quinn in Cornerstone Co-Operative Homes Inc. v. Spilchuk, [2004] O.J. 3219 (S.C.J.) at paras. 107 to 110, where he held that solicitor-and-client costs are the equivalent “on a substantial indemnity basis.” See also: City Park Co-Operative Apartments v. Becher, [2006] O.J. No. 2685 (Div.Ct.).
[9] The Co-Op says the rationale for this is that the other tenants should not have to pay anything for such legal proceedings. It says the Tenant was aware of this and was warned that it would be seeking an order for all of its Costs.
[10] The Tenant asks the Court to exercise its discretion and reduce the Costs award accordingly. She has agreed to pay the extra $50 per month for Costs but says the Costs being asked for are excessive, given the amount in question in the first place, and the fact that all arrears were paid in full by December 1, 2012.
[11] The Tenant pleads undue hardship and the unfairness of such Costs being asked for. The Tenant points to recent decisions by our Court where such Costs have been reduced in certain circumstances: she points to, John Bruce Village Co-Operative v. Goulding, 2007 CarswellOnt 6872 (O.C.J.) at para. 9. There Mr. Justice Belobaba held that the fact that the parties may have contractually agreed, that costs are to be paid on a substantial indemnity basis, is not determinative and does not exclude the Court’s discretion to award a lower amount in the circumstances, if the imposition of substantial indemnity costs would be “unfair or unduly onerous”.
[12] Costs must be fair and reasonable. Our Courts also look at proportionality in making such decisions in non-Co-Operative cases. The Court looks to the expectation of the parties. See: Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521 (ONCA) at paras. 24 and 37.
[13] The Tenant put forward a number of cases to support her position that the Costs should be reduced and that the Courts in recent decisions regarding co-operatives have done just that. She also points to the fact that the Court can take into account the hardship it will create for her if she has to pay the full Costs. In my view, the math of the $50 extra per month shows that it would take 35 years at $600 per year to pay off the Costs. This I find to be so out of proportion on the facts of this case. It leads to an absurdity. This is so, even if the Tenant does find employment and could pay more per month. In addition, it is unfair in the circumstances, which equates to being unreasonable.
[14] I have carefully examined the Co-Op’s Bill of Costs presented by its counsel. Counsel is very experienced in this area of the law and acts for many co-operatives in these circumstances. He should have precedents at his fingertips to use to begin such proceedings, and all the cases summarized and cited in other cases to be used in this one. By March 7, 2013 when the first hearing was scheduled to take place, the legal fees shown on the Bill of Costs was $5,244. To this was added between that date and preparation for the second hearing another 28.9 hours, which adds up to an additional $8,259 on top of the already tallied $5,244. Further hours were added on for Settlement discussions and attendance at Court on the second hearing.
[15] At one point, in the litigation, when the Tenant was told in February 2013 that Costs already exceeded $5,000, the Tenant took the position that even those Costs were beyond her capability of paying. At $50 per month, those would take her approximately 8 years to pay.
[16] I have reviewed all the case law both counsel presented to me. I adopt the reasoning of Mr. Justice Belobaba in John Bruce, supra. This was a simple application. The Tenant is now aware that she can no longer be tardy in her payment of monthly rent. The Minutes of Settlement make clear the consequences of that.
[17] Taking into account the hardship which would be brought on the Tenant if full indemnity Costs were awarded, the havoc it would play with her son if they were evicted out of his home and his school area, given what the medical reports say how he would be affected, and given the unreasonable amount of the Costs, I award the Co-Op the sum of $4,000 plus $220 HST + $50 in disbursements for a total of $4,721 to be paid by the Tenant in accordance with the terms of the Minutes of Settlement.
[18] I have entered that amount in the Judgment counsel provided to me. The Judgment as signed by me shall issue accordingly.
Greer J.
Released: June 27, 2013
TYPED VERSION OF
WRITTEN ENDORSEMENT
COURT FILE NO.: CV-12-00465441-0000
DATE: 20130627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELLEN McGREAL HOUSING CO-OPERATIVE INC.
Applicant
– and –
MELANIE MOYER
Respondent
ENDORSEMENT
Greer J.
Released: June 27, 2013
TYPED VERSION OF
WRITTEN ENDORSEMENT