Court File and Parties

COURT FILE NO.: CV-09-387119
DATE: 20140625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HRH INVESTMENTS INC., Plaintiff

AND:

NITA WEXLER, also known as NITA KATZ and HART KATZ, Defendants

BEFORE: B. P. O’Marra J.

COUNSEL:
Michael A. Winterstein, for the Plaintiff

Douglas Christie, for the Defendants

HEARD: April 17, 2014

costs ENDORSEMENT

[1] On April 17, 2014 I heard submissions on a motion to either set aside a default judgment or lower the interest rate from 18% to 6%. I reserved and counsel for both parties filed written cost submissions. The defendant did not request that I defer submissions on costs pending a decision on the motion.

[2] On May 5, 2014 judgment was released. The motion to set aside the default judgment was dismissed but the interest rate payable was reduced to 6%. Costs were awarded to the plaintiff fixed at $5,500.00 all in.

[3] After the judgment was released counsel for the defendant filed written submissions claiming there had been a Rule 49 offer before the motion was heard to settle on terms identical to the judgment of May 5, 2014. The defendant claims that the plaintiff is disentitled to costs. Further, she seeks an order for her costs related to the motion.

[4] The plaintiff’s position is as follows:

(a) the defendant failed to request that the issue of costs be deferred until after the motion was decided

(b) the offer did not conform to Rule 49

(c) the defendant did not achieve an equal or better outcome on the motion

analysis

[5] The motion to set aside the default judgment arose because the defendant had failed to respond to the plaintiff’s claim. Even if the defendant had been successful on the motion to set aside, the defendant would usually pay the costs of the motion and any other costs thrown away on account of the default.

[6] R. 49.10 sets out costs consequences of a failure to accept an offer to settle in certain circumstances. The R. 49.10 regime has been held not to apply to offers to settle pending appeal.

Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd., 1987 4149 (ONCA) at p. 6.

Meadowfield Ventures Inc. v. Kennedy, 1990 6989 (ON CA), [1990] O.J. No. 2174 (C.A.).

Calebre v. 1082909 Ontario Limited (Amerispec Inspection Services) 2007 41267 (ON Div. Crt.).

[7] In my view, the same reasoning would apply on a motion to set aside a default judgment. The reference in R. 49.03 to an offer to settle made “at any time” confers the right to make an offer at any time before the giving of judgment by a court of first instance.

Niagara Structural Steel (supra), at p. 7.

conclusion

[8] The R. 49.10 regime does not apply in these circumstances.

result

[9] The costs order in my judgment released May 5, 2014 is confirmed.

B. P. O’Marra J.

Date: June 25, 2014