Superior Court of Justice – Ontario

Court File No.: C-800-07
Date: 2014/11/18

RE: LAVRIJSEN CAMPGROUNDS LTD., Plaintiff

AND:

EILEEN REVILLE, STEVEN REVILLE and DOUGLAS REVILLE, Defendants

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
Anthony T. Keller, for the Plaintiff

Jay Herbert , for the Defendants

COSTS ENDORSEMENT

[1] The parties have been unable to agree on the costs of the motion and have now delivered their submissions on costs of the defendants’ motion to set aside the summary judgment obtained on default.

[2] At the conclusion of my endorsement I expressed the view, on a preliminary basis, that the plaintiff should be entitled to the costs of the motion, notwithstanding that the defendants were successful in having the judgment set aside, conditional upon payment of the plaintiff’s costs thrown away, as I considered the costs of the motion to be included in the costs thrown away. I expressed this view on a preliminary basis as I was not, of course, aware of any Offers to Settle which may have been served by the parties. There may very well have been other considerations which would affect the costs disposition of which I was unaware.

[3] Counsel for the defendants submits that as his clients were the successful parties on the motion, they are presumptively entitled to costs. He also points to two Offers to Settle which he delivered. The first was dated July 25, 2014 (6 days prior to argument of the motion) and provided for the judgment to be set aside and for the defendants to pay to the plaintiff costs thrown away in the sum of $2,500. The second Offer to Settle was dated July 30, 2014 (the day prior to the argument of the motion) and provided for the judgement to be set aside, payment of costs thrown away of $4,000 and payment into court by the defendants of $35,000 pending determination of the action.

[4] Neither of these offers satisfies the requirements of Rule 49.10, as neither was served at least 7 days prior to argument of the motion, and the terms of neither offer were as favourable or more favourable to the plaintiff than the outcome of the motion.

[5] I agree that the successful party on a motion is generally entitled to costs, however, that general rule is not without exceptions. It is well established, that on a successful motion to set aside a judgment obtained on default, the non-defaulting party opposing the motion, although unsuccessful, may be entitled to be made whole by having the costs of the motion included in the costs thrown away ordered to be paid as a condition of setting aside the judgment. See for example, four cases which were referred to in my endorsement, David Bradshaw Holdings Inc. v. Esmail (2009), 78 C.P.C. (6th) 313 (Ont. S.C.J.) at paras. 44 and 45 , St. Clair Roofing & Tinsmithing Inc. v. Davidson, 1992 7660 (ON SC), [1992] O.J. No. 483 (Ont. Master) at para. 49, McDonald v. United States of America, 2014 ONSC 1557 (Ont. S.C.J.) at paras. 15 and 16, and D. Crupi & Sons Ltd. v. Paveland Paving Ltd., [2009] O.J. No. 4435 (Ont. Master) at para. 20.

[6] In the present case, there was no failure on the part of the plaintiff to comply with the Rules of Civil Procedure. It was entitled to proceed in the manner that it did. The fact is that the defendants failed to respond or to communicate with counsel for the plaintiff following receipt of the Motion Record for summary judgment. Although, in my discretion, I determined that the judgment should be set aside to permit the defendants to defend the action on the merits, it should be done on a basis which is fair to both sides.

[7] In my view, it would be appropriate in this case to consider the partial indemnity costs of the plaintiff in responding to the motion to be included in its costs thrown away.

[8] Counsel for the plaintiff has advised that the parties are agreed on the quantum of the costs, being the sum of $4,000.00. This is less than the amount claimed by the defendants in the sum of $4,970.79 and accordingly must be considered to be within the defendants’ reasonable expectations.

[9] It is therefore ordered that the defendants pay the plaintiff’s costs of the motion fixed in the sum of $4,000.00 inclusive of fess, disbursements and HST. This amount is to be paid within 30 days.

D.A. Broad

Date: November 18, 2014