Denardi v. Opie

CITATION: 2014 ONSC 2058

COURT FILE NO.: 12-37617; 14-45819

DATE: 2014-04-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julie Christine DeNardi, applicant

AND: Janice Opie, respondent (12-37617)

AND RE: Janice Opie, applicant

AND: Julie Christine DeNardi, respondent (14-45819)

BEFORE: Mr Justice Ramsay

COUNSEL: Mr Brad J. Wiseman for Julie DeNardi, Ms Margaret Hoy for Janice Opie

HEARD: 2014-04-01

ENDORSEMENT

[1] At Ms Hoy’s request I have reconsidered my decision on costs (2014 ONSC 1990) now that I have received her belated submissions and Mr Wiseman’s reply.

[2] The point is whether I can order costs against the respondent, when in the notice of application costs were only requested from the incapable person.

[3] There would be no prejudice to the respondent, because she had ample notice that costs payable by her were in issue. She knew this from the applicant’s offer to settle, from the earlier appearance on the application, in which I fixed costs of the day at $500 and reserved them to the application judge, who I turned out to be, and when an order was made restricting access to the incapable person by the respondent’s husband, at which time costs were reserved to the application judge.

[4] As a matter of policy, it would be unfortunate if the respondent were able to protract the proceedings by, among other things, committing perjury, all without risk. It would put all the litigation risk on the applicant, which is contrary to the general principle that costs follow the result and the particular principle that family members should not be penalized for trying to help an incapable person.

[5] Finally, nothing in the rules prevents making a cost order in the circumstances. I find persuasive Master Glustein’s ruling in Royal Bank of Canada v. Orletsky, [2009] O.J. No. 2801, in which costs were given on a motion. The reasoning applies equally to an application. An order for costs against a party is ancillary to the relief sought in the application.

[6] I confirm my cost order of March 28.

J.A. Ramsay J.

Date: 2014-04-01