Court File and Parties

COURT FILE NO.: 13-CV-472208

DATE: 20140320

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joan Jones, Applicant

AND:

Sue Anne Jones and Gideon Jacques, Respondents

BEFORE: Michael G. Quigley J.

COUNSEL:
Jennifer Klotz, for the Applicant

Sue Anne Jones and Gideon Jacques, Self-Represented Respondents

HEARD: In Chambers

COSTS ENDORSEMENT

[1] On February 3, 2014 I granted judgment in favour of the applicant in this case. My reasons for judgment are reported at 2014 ONSC 787.

[2] In her claim, the applicant sought both monetary and non-monetary relief as follows:

(i) A vesting order in her favour placing all legal and beneficial ownership of the subject Property in her name, with the name of the respondent, Sue Anne Jones, to be taken off the title of 25 Replin Road, Townhouse 3, Toronto, Ontario M68 2M8;

(ii) An order for sole possession of that Property to go in favour of the applicant;

(iii) An order requiring the respondent and her boyfriend, Gideon Jacques, to vacate the Property within a reasonable period of time, to be determined and established by the court;

(iv) Repayment or refinancing of the balance of the Nissan car loan, in the original principal amount of $12,000, for which the applicant co-signed as a guarantor;

(v) Repayment of $24,043.68 of unauthorized withdrawals from the Joint Line of Credit (including a $4,263.87 balance that remained owing);

(vi) Repayment of $5,700 of monies given by the applicant to the respondent for a down payment on an automobile in 2005, including $700 in respect of car insurance;

(vii) Repayment of a missed car payment of $800 and $2,000 in furniture costs, in both cases paid by the applicant; and

(v) Imputed net occupational rent of $85,648.84.

The total amount that the applicant claims is owed to her by her daughter, the respondent, and the second respondent, Gideon Jacques, was the very substantial sum of $134,456.40.

[3] At the commencement of the trial, which took the better part of two days, the respondent confirmed to me that she no longer opposed the reconveyance of the Property to her mother as sole legal and beneficial owner. She also agreed before me to consent to orders vesting title solely in her mother and reconveying the Property to her mother. She specifically consented before me to an order requiring her to vacate the premises.

[4] However, the applicant, her mother, was not so successful on her money-based claims. I refused to award the substantial and in my view unreasonable amount of imputed occupational rent that she sought, although I did require that the daughter pay an imputed amount of unpaid utility charges that I found her mother had to pay when she did not pay those amounts as they came due as she had promised. I also required the respondent to pay the net outstanding balance of the Line of Credit indebtedness, but only that amount because it could not be determined who had actually used the balance of funds drawn from that account: see Jones v. Jones, 2014 ONSC 787 at paras. 44-50.

[5] Thus the respondent was ordered to pay only $34,123 to the applicant, consisting of that net balance together with the imputed utility payment amounts, plus the claims under items (vi) and (vii), such amount to bear post-judgment interest in accordance with the Courts of Justice Act. In addition, she was required to either pay out or refinance the Nissan car loan referred to in (iv) in order to permit the discharge of her mother’s collateral obligation on that indebtedness.

[6] So it is in this context and against this background that the question of costs now arises in this case. The principal question of ownership and reconveying the Property to the applicant was settled on consent, and thus did not need to be litigated, with the time and complexity that would have added to the trial, but beyond that, the respondent was found liable to the applicant for only $34,123, (plus the Nissan car loan for a total of $43,627.96). As I noted in my reasons, that is only about one third of the very sizeable amount of $134,456.40 initially claimed by the applicant, Joan Jones from her daughter, the respondent Sue Anne Jones.

[7] Since the application has been granted, even if the success achieved was only a fraction of the amount claimed, Rule 57 provides that the applicant is presumptively entitled to costs. However, settlement discussions and offers that took place between the parties could also have an impact on that presumption. The extent to which the result obtained by the applicant exceeds or is exceeded by any settlement proposals that were made by either party would have an impact on costs. Moreover, the court always retains its discretion in an appropriate case to not make an award of costs and to require each of the parties to absorb their own costs.

[8] Now, the applicant, Joan Jones, seeks full recovery, that is, full indemnity costs of $36,504.85 including disbursements and HST from the respondents. That amount is $2,000 more than the actual money award that the respondent has been ordered to pay to her. Alternatively, if I conclude that full indemnity costs are not warranted, she seeks partial indemnity costs of $28,358.39 inclusive.

[9] Although it is quite surprising to me that such a claim is being made in the petition for costs of the applicant, if that was not enough, she also seeks a further $10,000 for trespass, $5,000 in respect of each of the respondents, in addition to costs. That amount is claimed in respect of the alleged trespass of the respondents when they failed to vacate the Property, after the applicant’s solicitors sent them a demand letter in 2013.

[10] Again, it bears remembering that the applicant and the respondent, Sue Anne Jones, are mother and daughter, though it is otherwise very hard to tell given the animosity that exists between them. After Joan’s husband died, Joan bought a townhouse and she invited Sue Anne to move in with her. She was getting older. They were on good terms at that time. She plainly hoped that Sue Anne would assist her as she aged, and also assist Sue Anne’s brother Michael, who is autistic.

[11] However, plainly the relationship has now gone very seriously and irreparably downhill. Its deterioration was evidently occasioned by two events: (i) Sue Anne’s invitation to her boyfriend, Gideon Jacques, to move into the town house without her mother’s consent, and (ii) a serious altercation that involved a police occurrence report, where Joan Jones accused Gideon Jacques of striking her autistic and non-communicative son, Michael, and Sue Anne counter attacked that it was in fact Joan who struck her own son.

[12] At para. 24 of my Reasons for Judgment I addressed the final irreparable effects of the police occurrence. It bears repeating here relative to the animus that exists between mother and daughter:

The report to the police is alleged to have been the final straw that precipitated this legal action. Whether the blame for that incident lies with the mother as claimed by the respondent, or lies with the respondent's boyfriend, as claimed by the applicant, is not a question that will assist in resolving the financial issues that remain between these parties. They are past the point of reconciliation. It was the point of no return. Only the parties alone know in their own hearts what transpired and what gave rise to the total breakdown in relationship between mother and daughter, leading to the applicant’s demand that they leave the Property, and her commencement of this litigation against them. Whatever that answer is, and regardless of whether that is what fuels their animosity, it is irrelevant to the quantum meruit and payment related questions that remain, i.e., who paid how much of the expenses, whether the applicant is entitled to recover what she claims from the respondent, and whether the respondent is entitled to be paid for her claimed contribution to the Property.

[13] There were offers made to settle between these parties, but the rancor between them is too deeply-seated to have permitted any reasonable settlement to have been reached.

[14] On September 14, 2013, the applicant made an offer under which she would make a payment to the respondent of $30,000, less repayment of the line of credit amount that was taken by the respondent and which was estimated at that time at about $5,000, and in consideration of the reconveyance of the Property from the respondent to her mother in sole ownership, and the respondents vacating the premises. That was refused. Then again, on January 22, 2014, just before the trial was to commence, the applicant made a further offer to pay $9,000 to the respondents, less the estimated $5,000 net repayment due on the line of credit, for a total payout to the respondents of $4,000. This offer also was refused.

[15] The respondents also made an offer to settle on January 24, 2014. They agreed to reconvey the Property to the applicant, provided that Sue Anne was paid $100,000 for her name to continue to be on title to the Property and the mortgages, or a payment of $80,000 for the removal of Sue Anne’s name from the title and the two mortgages. While I only found out about these offers and counter offers after the trial was completed, this struck me as about as outrageous an offer in the context of the facts here as was the applicant’s claim of $85,000 of imputed occupation rent from her own daughter. The applicant rejected this offer.

[16] Nevertheless, as a result of these offers, the applicant claims that she has been far more successful as a result of the decision of the court than the offers that she made, and thus she claims to be entitled to full recovery costs on the basis that the conduct of the respondents has been reprehensible and punitive. To my eye, however, the claimed monumental success of the applicant in this case is overstated insofar as she claimed $134,456.40 yet recovered only $34,123, just over a quarter of what she claimed was due to her. Thus her claim that she has been more successful than the offer she made to pay a small amount to her daughter, Sue Anne Jones, is only accurate in the context of the offers that were made, but not in the context that she also claimed $85,000 of imputed occupational rent, and claimed repayment of over $24,000 allegedly taken from the line of credit, only a fraction of which was awarded. However, just as she rejected the last “over the top” offer made by the respondents, so too I rejected her excessive claim for imputed rent.

[17] Dealing first with the brash claim for an amount on account of trespass being made in the applicant’s costs submission, I agree with the respondents that it is totally inappropriate. I was astonished that counsel could think such a claim could properly be included in costs submissions, or just tacked on as a sort of “by the way” add-on.

[18] The applicant may claim that the respondents were trespassing on her Property because she demanded that they vacate the premises when they continued to stay at the townhouse, but if she wanted to claim an amount of damages on account of trespass, and advance evidence that could have given rise to a finding of trespass, the proper place to do that was in her statement of claim, not in submissions on costs. While there is a fundamental breakdown in their relationship here, however, I would not have made a finding of trespass, at least during a time when the respondent appeared to be a co-owner of the Property, and given that she resided at that residence as in invitee of her mother, even if now spurned by her. That component of the applicant’s costs submissions, improper as it is, is dismissed.

[19] The applicant's daughter, Sue Anne Jones, and her boyfriend, Gideon Jacques, prepared a responding submission on costs that takes an entirely different approach to the subject. The respondents note first of all that they were unrepresented. They claim to have not appreciated or understood the nature and consequences of the proceedings. However, this is not a realistic or sensible position given all the mediation and pre-trial efforts that were made in this case, proceedings in which the respondents were participants. It is surprising to me insofar as Justice Roberts made an intensive, full day effort to bring this matter to a resolution that would have avoided the need for it to go to trial. Penny J. made further efforts more recently.

[20] At the opening of the trial, once again I strongly cautioned both parties of the potential consequences that could arise from continuing on with the litigation, particularly given that the principal issue of the respondents’ agreement to vacate the townhouse and to reconvey it to the applicant appeared by then to have been settled on consent. I admonished both of them to carefully consider their positions before proceeding further and I virtually begged them to try to resolve their differences. I remain firmly of the view that it should have been possible at that point for both parties to walk away, perhaps with de minimus financial recognition to each other of the respective claims that they make in the monetary dispute which continued to divide them, if only to permit both of them to save face.

[21] Regrettably, that was not to be. I was reminded of the famous phrase from William Congreve's restoration comedy, The Mourning Bride, written in 1697, (and frequently wrongly attributed to William Shakespeare), that

Heaven has no rage like love to hatred turned, nor Hell a fury like a woman scorned.

Plainly, this was poetry that fully described and applies to both of them.

[22] Here there has been a fundamental falling out between these parties. Nevertheless, as Sue Anne Jones points out in her submissions on costs, she has resided with her mother in the premises from shortly after the death of her father to the present time – with her mother’s blessing for most of that time. I also accept that she has generally cared for and she claims she continues to provide some care for her mother. Plainly her mother is somewhat frail, and it was obvious from the evidence she gave at trial that her memory is not particularly good.

[23] The applicant may not like Gideon Jacques living with her daughter at the townhouse premises, and there may be issues relative to amounts that have been taken from the line of credit, amounts that I have required in my judgment be repaid by Sue Anne Jones, but this is not like a commercial monetary dispute. Unfortunately, it does not have that typical civility to it. It does not have a level of reason which might have caused other parties to have avoided the psychological, emotional, and financial damage done to their relationship by continuing to pursue this litigation between themselves, including failing to settle at the last minute when they had every opportunity to do so, if only reason could have prevailed over the blind fury that exists between them.

[24] The respondents correctly submit that costs are a discretionary matter and they do not depend solely on who was successful and they do not depend solely on the existence of offers to settle. I agree with the respondents that whether costs should be awarded must take into account the factors enumerated in Rule 57.01 and that the exercise is not simply a mechanical one based upon the calculation of hourly rates and time spent by the solicitors for the successful party. I also agree with the respondents that an award of costs to a successful party should reflect what the court views as fair and reasonable under the circumstances.

[25] Here, at the commencement of this trial, rightly or wrongly, the respondents agreed on consent to reconvey the Property to the applicant, and they agreed to vacate the premises although I understand they are now refusing to leave even though they consented before me to an order requiring them to vacate. As such, this was effectively a complete victory for the applicant, Joan Jones, on the principal issue she was litigating, namely ownership and possession of the Property, before anybody was called upon to testify and before any further costs were incurred in the litigation.

[26] I understand that for two young people who are also trying to make their way in this world, being evicted from the place where they live, particularly when the party ordering you to vacate is your mother, is hardly an easy result to deal with. But vacate the Property they must, and without further delay. Relative to costs, however, neither of these individuals are earning enormous amounts of money. Sue Anne is a service manager who earns approximately $50,000 a year. Gideon Jacques operates a personal training program and allegedly earns approximately $22,000 per year, according to the responding costs submissions of the respondents. Further, it is plain that these were not complex or difficult proceedings. What was complex and difficult was the fact that neither of these parties was willing to take the high road and bring this matter to an end by settling it on the several occasions when that opportunity was made available to them.

[27] In my view they should have done that. They should have resolved this litigation. Perhaps if Joan Jones had not so severely disliked Gideon Jacques and come to so severely dislike her own daughter that she wanted them out of the premises because of the slight done to her, according to the respondents, by reporting that she was the one that struck her autistic son, then she might have been content to have resolved the monetary issues between them on a more conciliatory basis, rather than seeking to saddle them with a claim for $85,000 for imputed rent.

[28] On the other hand, the respondents’ claim that her mother had to pay them somewhere between $80,000 and $100,000 just for agreeing to take Sue Anne Jones’ name off the title and the mortgages, in circumstances where the evidence showed plainly that Sue Anne Jones did not even meet the financial obligation she agreed to with her mother as a condition for living at the townhouse, was frankly serious overreaching. Both parties took extreme positions. Neither party won.

[29] In my view, that is exactly the result that should prevail relative to costs, regardless of any offers made before the trial. The respondents are already subjected to a damages award in the amount of about $43,000, including the costs of discharging the Nissan car financing. It is an award which effectively forces the respondent, Sue Anne Jones, to pay the amounts that she agreed to pay as the consideration for being permitted to move into that townhouse with her mother after her father died, and by repaying the relatively small remaining balance of debt and the amount drawn down from the letter of credit account to fund expenses for her own use and benefit, and the other loans her mother claims and proved that she made to her.

[30] Effectively, in doing this and making those orders, I consider that I will be putting the two parties back in the net zero position that they ought to and would have been in if none of the bad relations between them had developed or persisted. However, to now double the economic burden of that obligation against the respondents by requiring them to absorb a full indemnity costs order that is frankly more than the amount of the damages that they are required to pay, is unreasonable and overreaching.

[31] I have reached the conclusion that the only fair and reasonable result in this case, at least relative to the issue of costs, is that each party bear their own. I realize this will effectively require the applicant, Joan Jones, to use virtually the entire monetary amount awarded to her under my judgment to pay the full indemnity costs sought by her solicitors, but in my view that is not an unfair result. It is a fair result given the reconveyance of the Property that she achieved. But it is also a result that could have been avoided if the parties would have had the good sense to settle the matter, and if counsel for the applicant had dealt with the parties in a less adversarial manner, and one that sought to bring about a resolution of this tragic dispute between a mother and a daughter without further damage being created in their personal relationship or payable by order of the court.

[32] Accordingly, there will be no order for costs in this case. Each party will bear their own costs.

Michael G. Quigley J.

Released: March 20, 2014