COURT FILE AND PARTIES

COURT FILE NO.: CV-13-5630

DATE: 20131122

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bert Whitmell and Judith Whitmell v. Steven James Ritchie and Magdalene Ritchie

BEFORE: Ellies J.

COUNSEL: Joseph D. Kennedy, for the Respondents

Ian N. McLean, for the Appellants

HEARD: November 22,2013

ENDORSEMENT

[1] The appellants had been declared vexatious litigants and sought leave to commence an action against the respondents under the Road Access Act. On July 2, 2013 their application was dismissed and Valin J. ordered that the respondents receive their costs of the application on a full indemnity basis, following assessment.

[2] In this appeal, the appellants seek to set aside the assessment, which took place on October 22, 2013. Although there is no dispute that they received a copy of the Notice of Appointment for Assessment of Costs well ahead of time, they argue that they inadvertently failed to attend on that date.

[3] The record in this case is far from satisfactory. The appellants have failed to file any affidavit evidence in support of their contention. The only affidavit was filed by the respondents, in which it is indicated that, following the assessment, Mr. Whitmell contacted Mr. Kennedy’s office “to confirm the date of the (a)ssessment of (c)osts” (see para. 21).

[4] In addition to the woefully inadequate record, the appellants have failed to follow the proper procedure to contest an assessment prior to bringing an appeal. Section 17 (b) of the Courts of Justice Act provides that an appeal lies to the Superior Court of Justice from a certificate of assessment of costs issued in a proceeding in the Superior Court of Justice, on an issue in respect of which an objection was served under the rules of court. Rule 58.10 of the Rules deals with objections to assessments. It provides:

58.10 (1) On request, the assessment officer shall withhold the certificate for seven days or such other time as he or she directs, in order to allow a party who is dissatisfied with the decision of the assessment officer to serve objections on every other interested party and file them with the assessment officer, specifying concisely the grounds for the objections. R.R.O. 1990, Reg. 194, r. 58.10 (1).

(2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer. R.R.O. 1990, Reg. 194, r. 58.10 (2).

(3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly. R.R.O. 1990, Reg. 194, r. 58.10 (3).

(4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections. R.R.O. 1990, Reg. 194, r. 58.10 (4).

[5] It will be seen that Rule 58.01 provides a review process whereby the assessment officer may revisit his or her own assessment upon the timely filing of an objection. No such objection was filed in this case.

[6] Despite these shortcomings, I have concluded that the appeal should be allowed. The notice of appeal was filed within the seven days referred to in Rule 58.10. Moreover, counsel for the respondents admits that the certificate of assessment was issued on the very day the assessment took place and could not have been withheld, even if an objection had been filed as soon as the fact of the assessment came to the attention of the appellants.

[7] The process by which an objection to an assessment can be filed is a creature of the Rules. Rule 2.01 provides that failure to comply with the Rules is an irregularity only and does not render a proceeding a nullity. The court may grant all necessary relief on such terms as are just to secure the just determination of the real matters in dispute.

[8] The affidavit evidence filed by the respondents does provide some support for the appellants’ contention that they failed to attend the assessment through inadvertence. In the circumstances, it is my view that compliance with the rules ought to be dispensed with in order to allow the appellants an opportunity to participate in an assessment. Therefore, the appeal is allowed and the matter is remitted to the assessment officer to set a new date for the assessment of costs.

[9] Although the costs of this appeal would ordinarily follow the event, I believe that this is an appropriate case in which to award costs against the appellants. Inadvertent or not, the appellants are solely to blame for failing to attend the assessment. The respondents provided them with proper and timely notice of the date of the assessment. Further, the appellants would not have succeeded on this appeal had counsel for the respondents not brought the evidence of Mr. Whitmell’s phone call to the attention of the court, for which he should be commended. Therefore, I award the costs of the appeal to the respondents and fix those costs in the amount of $1,500, payable forthwith. In fixing this amount, I have taken into account the costs thrown away by the respondents in the first assessment.

Ellies J.

Date: November 22, 2013