COURT FILE AND PARTIES

COURT FILE NO.: 99-CV-165261

DATE: 20140606

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SHARON COHEN AS ESTATE TRUSTEE WITH A WILL, Plaintiff

-and-

LESLIE CHARLES COHEN, Defendant

BEFORE: Stinson J.

COUNSEL:
James C. Davies, for the plaintiff/responding party

Leslie Charles Cohen, defendant/moving party, appearing in person,

HEARD: by written submissions

COSTS ENDORSEMENT

[1] On February 7, 2014 I released my endorsement dismissing the motion of the defendant Leslie Charles Cohen to set aside the order of Spence J. dated December 20, 1999 in which he granted default judgment against Mr. Cohen. The parties have now made written submissions as to the costs of that motion.

Liability for costs

[2] The motion brought by Mr. Cohen failed. The responding party was completely successful. Except in extraordinary circumstances, the costs of such a motion should be paid by the unsuccessful party. Since there are no such circumstances in the current case, I conclude that the prevailing “loser pays” rule should apply and that Mr. Cohen should pay the costs of the motion to the successful respondent.

[3] I should note that in his written submissions, Mr. Cohen claimed expenses relating to obtaining the file from Cooksville, reading the file, preparing pleadings, etc. As the unsuccessful party in the litigation (and the party against whom the court has rendered a binding judgment for liability) I see no basis whatsoever to make an award of costs in his favor. His request is therefore refused.

Scale of costs

[4] Ordinarily, an order of costs is made on a partial indemnity basis. Only in exceptional cases is it appropriate to depart from that rule. Such cases include situations where the underlying conduct of the party is egregious or where allegations of fraud or other reprehensible conduct are made against an opponent but not proven.

[5] In my view, both those circumstances are applicable in the present case. The judgment against Mr. Cohen which he sought to set aside is based upon complaints of fraud, misappropriation of funds and other misconduct. That conduct would warrant an order for substantial indemnity costs.

[6] Additionally, in his motion materials seeking to set aside the judgment, Mr. Cohen made numerous unsupported and unsupportable allegations of misconduct as against the responding party. These broad allegations of illegal activity and suggestions that the respondent misled the court were made without any detail or evidence to support them. I conclude they are unsupportable and unfounded. They are an additional basis upon which to make an order of substantial indemnity costs.

[7] I therefore order costs to be paid by Mr. Cohen on a substantial indemnity basis.

Quantum of costs

[8] The bill of costs submitted by the responding party seeks total fees and disbursements of $8044. Mr. Cohen objects on the basis that some of the amounts claimed are duplicates for charges related to Mr. Cohen’s motion to pass accounts. He has provided no evidence to support that allegation and I therefore conclude it is unsupportable. Instead, given the amount of historical research and analysis that was necessary in order to respond properly to Mr. Cohen’s motion, I consider the amount of time expended to be reasonable, fully warranted and justified.

[9] Turning to the considerations specified in rule 57.01(1), I note as follows:

a) The amount sought is based on the principle of indemnity for the expenses incurred in responding to the motion, and is therefore warranted;

b) Mr. Cohen should have anticipated that his attempt to set aside a default judgment granted more than a dozen years previously would result in considerable effort on the part of the respondent and her counsel. In my view, the amount sought is a fair reflection of that fact and should come as no surprise to the defendant;

c) The amount sought is not disproportionate to the amount claimed in the proceeding as against Mr. Cohen;

d) The respondent was wholly successful;

e) The issues were important for the respondent since an order setting aside the default judgment would have opened up a range of issues relating to the estate. She resisted the motion with suitable vigour;

f) Mr. Cohen made a variety of unsupportable allegations – such as a denial he had seen the statement of claim – which made it necessary for additional effort to be undertaken by the respondent to respond to the motion.

[10] Taking into account all the foregoing considerations, I would not reduce the amount claimed at all.

Conclusion and disposition

[11] I therefore order the defendant judgment debtor Leslie Charles Cohen to pay costs to Sharon Cohen as estate trustee with a will in the total amount of $8044. To the extent any funds remain payable to Leslie Charles Cohen out of the estate of Jack Cohen, I direct that this cost award be offset against any amount so payable.

Stinson J.

Date: June 6, 2014