SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: CV-11-431741
DATE: 20130125

RE: John David Ekpenyong

In Person

• and -

Versacold Logistics

Defendant/Moving Party

BEFORE: The Honourable Mr. Justice Robert F. Goldstein

COUNSEL:
John David Ekpenyong,

In Person

Frank Cesario,

for the Defendant/Moving Party

HEARD: Written submissions

E N D O R S E M E N T

AS TO COSTS

[1] On October 1 2012 I struck the Plaintiff’s Statement of claim pursuant to Rule 21.01(1)(b) as disclosing no reasonable cause of action: see: Ekpenyong v. Versacold Logistics, [2012] O.J. No. 4592, 2012 ONSC 5530. I found that the lawsuit was frivolous and vexatious.

[2] On May 2 2012, Madam Justice Chapnik granted the same relief to two other parties who had been sued by Mr. Ekpenyong for alleged torts arising out of similar. Her Honour fixed costs in the amount of $2,500 payable to each of the two parties, for a total of $5000. See: Ekpenyong v. Staff Plus Temporary & Permanent Personnel Service, [2012] O.J. No. 2002, 2012 ONSC 2663.

[3] The Defendant here seeks costs of $10,367.59 on a partial indemnity basis.

[4] Costs are within the discretion of the Court: Courts of Justice Act, s. 131(1). Rule 57.01(1) sets out the factors that the Court may consider in awarding costs. The over-arching principle is that the Court should fix an amount that is fair and reasonable: Boucher v. Public Accountants Council for Ontario, 2004 14579 (Ont.C.A.), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.).

[5] I see no reason to depart from the principle that a successful party is entitled to costs unless there are very good reasons not to award such costs: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2. Thus, the Defendant will be awarded costs.

[6] In my view, the amount sought by the Defendant was high but not unreasonably so. It is admittedly higher than the amount awarded by Madam Justice Chapnik but the Defendant was also required to do more work: the Plaintiff noted the Defendant in default in the face of correspondence from the Defendant’s counsel that it would be responding to the Statement of Claim with a motion to strike. Setting aside the noting in default required work and expense that was entirely unnecessary.

[7] I also note that the result of the motion before me was completely and entirely predictable after Madam Justice Chapnik released her reasons. The parties could reasonably expect that the Defendant here would be successful, and that the Defendant would be awarded costs.

[8] The Plaintiff states that he has no funds to pay a costs award. I take this into account, but I do not know what the Plaintiff’s financial position will be in the future.

[9] In my view, an award of $7,500 takes into account the reasonable expectations of the parties, reflects the reality of the costs of the litigation, and is fair and reasonable in the circumstances.

[10] The Plaintiff will have 60 days from the date of today’s judgment to pay $7,500 to the Defendant.

GOLDSTEIN, J.

DATE: January 25, 2013