SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV – 11 - 429786

DATE: 20140609

RE: Kimberly Whaley, Creditor

AND:

Carol Frymer, Janice Stern and Stacy Mitchell, Clients

BEFORE: Kiteley J.

COUNSEL:
Craig Vander Zee, for the Creditor

Karen Zvulony, for the Clients

HEARD: in writing

ENDORSEMENT AS TO COSTS

[1] In an endorsement released February 4, 2014[^1], I set aside the Report and Certificate of Assessment and gave directions for another Assessment. I directed counsel to make submissions as to costs.

[2] In written submissions dated February 20^th, Mr. Vander Zee asked for costs in the amount of $2000. In her written submissions dated February 27, 2014, Ms. Zvulony asked for costs in the amount of $4435 plus HST plus disbursements in the amount of $1066.98 for a total of $6078.53.

[3] As indicated in the earlier reasons, the clients had advanced two principal submissions: they did not receive notice of the assessment hearing and they disputed the retainer.

[4] In paragraph 25 and 26, I explained the basis upon which that I could not be satisfied that service had been effected and ordered another assessment. I reviewed the evidence as it was before me and made observations about the incongruous and anomalous evidence. The Clients were successful in that outcome but their evidence left much to be desired. Given all of the circumstances described in those reasons, the Clients ought not to be rewarded with costs even though they were successful.

[5] In paragraphs 27 to 32, I explained the basis upon which I found that there was no bona fide dispute as to the retainer or the scope of the retainer. In the costs submissions, Ms. Zvulony provided a copy of a letter dated July 29, 2013 which was after service of the Notice of Motion to oppose confirmation of the Report and the Certificate of the Assessment which was returnable September 9, 2013. In that letter, counsel asked Ms. Whaley to consent to the motion on a without costs basis. Ms. Whaley did not consent. An Amended Notice of Motion was served on August 29, 2013 in which the following sentence was added: “The Assessment Officer lacked jurisdiction as the retainer was disputed.” From that sequence of events I infer that the amendment was made for strategic purposes. Leaving aside whether the letter dated July 29, 2013 is an offer to settle which is relevant to costs, based on my review of the evidence, it was reasonable for Ms. Whaley to decline to proceed as suggested. Notwithstanding taking what I consider to be a reasonable position, the Clients retaliated by making a strategic amendment to the Notice of Motion with potentially significant implications to the Creditor.

[6] The Creditor was wholly successful on the outcome on that issue. The retaliatory conduct described in the preceding paragraph is to be discouraged and warrants a modest order as to costs.

ORDER TO GO AS FOLLOWS:

[7] The Clients Carol Frymer and Janice Stern shall pay costs of the motion to the Creditor in the amount of $2,000.

Kiteley J.

Date: June 9, 2014

[^1]: 2014 ONSC 792