Citation: Miaskowski v. Persaud, 2015 ONSC 2776
COURT FILE NO.: 08-CV-347755 PD1
DATE: 20150428
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PHIL MIASKOWSKI, Minor by his Litigation Guardian, OWEN MIASKOWSKI, Minor by his Litigation Guardian, ERIC MIASKOWSKI, minor by his Litigation Guardian and ZACHARY BELL, Minor by his Litigation Guardian
Plaintiffs
– and –
DUSTAFF PERSAUD and TERENCE CATNEY
Defendants
– and –
STEVEN CATNEY, 1440415 ONTARIO INC. c.o.b. ALLIANCE YOUTH SERVICES INC., BETHS SUEPAUL and 889961 ONTARIO INC. c.o.b. RE/MAX REALTY SPECIALISTS INC.
Third Parties
Counsel:
B. Robin Moodie for the Plaintiffs
Zeitoon Vaezzadeh for the Defendant Dustaff Persaud
Jonathan Kulathungam for the Defendant Terence Catney
Jonathan Kulathungam for the Third Parties Steven Catney and 1440415 Ontario Inc., c.o.b. as Alliance Youth Services Inc.
Amanda S. Gibson for the Third Parties Beths Suepaul and 889961 Ontario Inc. c.o.b. Re/Max Realty Specialists Inc.
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] This is a Costs Decision following my Reasons for Decision: see Miaskowski v. Persaud, 2015 ONSC 1654.
[2] The plaintiff Phil Miaskowski slipped and fell on ice and snow at his place of employment. He was an employee of the third party, 1440415 Ontario Inc., which carries on business as Alliance Youth Services Inc. After his fall, Mr. Miaskowski sued Dustaff Persaud, who was the owner of the premises where Alliance Youth Services Inc. was operating. He advanced a $650,000 claim. Mr. Miaskowski did not sue the tenant of the premises until three years after the accident, when he joined Terence Catney ("Terence"), whom he learned was the tenant of the property, as a co-defendant.
[3] Mr. Persaud cross-claimed against Terence and about six years after the accident, he commenced third party proceedings for contribution and indemnity from Steven Catney ("Steven"), who is Terence's son and the owner of Alliance Youth Services Inc., which was the genuine occupant of the premises, i.e. Terence was a nominal or the notional tenant. In his third party claim, Mr. Persaud also sued Beths Suepaul, a real estate agent, and 889961 Ontario Inc., which carries on business as Re/Max Realty Specialists Inc. ("Re/Max"). These third parties had been retained in 2007 and had placed Terence as the tenant.
[4] Submitting that the claim was statute-barred under the Limitations Act, S.O. 2002, c. 24, Sched. B, Terence brought a summary judgment motion to have Mr. Miaskowski's claim dismissed. This motion was successful.
[5] Submitting that he was neither an occupier nor negligent, Mr. Persaud brought a summary judgment motion to have Mr. Miaskowski's claim dismissed. This motion was successful.
[6] Submitting that the third party claim was statute-barred under the Limitations Act, Steven and Alliance Youth Services Inc. brought a summary judgment motion to have Mr. Persaud's third party claim dismissed. Mr. Persaud brought a cross-motion for a declaration that his third party claim was not statute-barred. Steven's and Alliance Youth Services Inc.'s motion was successful and Mr. Persaud's cross-motion was unsuccessful.
[7] As noted above, I granted Mr. Persaud's and Terence's respective summary judgment motions in the main action, and I dismissed Mr. Miaskowski's action. That outcome made the third parties' summary judgment motions moot because there were no remaining claims for contribution and indemnity. However, because of the possibility of appeals, I granted the third parties' summary judgment motions, and I dismissed the third party claim in its entirety. I held that Mr. Persaud's third party claims were all statute-barred.
[8] Terence, whose limitation period defence was successful, now requests that Mr. Miaskowski pay costs of $31,392.53, all inclusive, on a partial indemnity basis. Of this sum, $4,330.53 is for disbursements and HST.
[9] Mr. Miaskowski submits that this costs claim should be reduced on account of his impecuniosity because he is a single father of twin boys and has not worked since the accident. His only source of income is the Ontario Disability Support Program. Mr. Miaskowski also submits that there should be a reduction on account of Terence's involvement in the misunderstanding about who the tenant of Mr. Persaud's property was. In other words, the expense of the main action should not include the expense of the cross-claim or third party proceedings.
[10] Mr. Persaud, whose defence that he was not an occupier or not negligent was successful, now requests that Mr. Miaskowski pay costs of $72,959.51, all inclusive, on a partial indemnity basis. Of this sum, $7,399.75 is for disbursements and HST.
[11] Mr. Miaskowski, once again, submits that there should be a reduction on account of his impecuniosity. He also submits that Mr. Persaud's claim should be reduced on account of the time expended on the third party proceedings. Mr. Miaskowski submits that the latter reduction should reduce Mr. Persaud's request for costs to $24,827.00, all inclusive.
[12] Although impecunious, Mr. Miaskowski sued for a substantial sum of money, and he would in the normal course have expected to recover costs if successful and to pay costs if unsuccessful. I would not reduce the costs claims of Terence or of Mr. Persaud on account of Mr. Miaskowski's impecuniosity.
[13] I would, however, reduce the costs claims against Mr. Miaskowski to reflect a reasonable sum of costs for litigating the issues in the main action and the narrow issues that were litigated in the summary judgment motions, which in the main were legal arguments about the operation of the Limitations Act, 2002.
[14] Accordingly, I award Terence costs of $29,000, all inclusive, and I award Mr. Persaud costs of $32,000, all inclusive.
[15] In the third party proceedings, the third parties Beths Suepaul and Re/Max benefited from the dismissal of the third party claim, and they request that Mr. Persaud pay $5,822.92 on a substantial indemnity basis. In the alternative, they claim $4,931.96, all inclusive, on a partial indemnity basis. Having regard to the usual factors that influence a court's discretion with respect to costs, I award Ms. Suepaul and Re/Max, $5,000, all inclusive.
[16] In the third party proceedings, Steven and Alliance Youth Services Inc., whose limitation period defence succeeded, requests that Mr. Persaud pay $49,966.93, all inclusive, on a substantial indemnity basis, or $42,576.43 on a partial indemnity basis, all inclusive. Of either sum, $2,456.93 is for disbursements and HST.
[17] The claim for substantial indemnity is primarily based on Mr. Persaud having made an unproven allegation of fraudulent concealment which he persisted in making in his costs submissions. I, however, did not make a finding one way or the other about fraudulent concealment, and rather I concluded that Mr. Persaud's third party claim was statute-barred in any event. In these circumstances, in my opinion, Mr. Persaud should pay costs for his unsuccessful third party proceedings on a partial indemnity basis in accordance with the normal factors that guide the exercise of the court's discretion.
[18] On a partial indemnity basis, in my opinion, the fair and reasonable sum for Steven and Alliance Youth Services Inc. to recover for costs in all the circumstances of this case is $35,000, all inclusive.
[19] Orders accordingly.
Perell, J.
Released: April 28, 2015
CITATION: Miaskowski v. Persaud, 2015 ONSC 2776
COURT FILE NO.: 08-CV-347755 PD1
DATE: 20150428
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PHIL MIASKOWSKI, Minor by his Litigation Guardian, OWEN MIASKOWSKI, Minor by his Litigation Guardian, ERIC MIASKOWSKI, minor by his Litigation Guardian and ZACHARY BELL, Minor by his Litigation Guardian
Plaintiffs
– and –
DUSTAFF PERSAUD and TERENCE CATNEY
Defendants
– and –
STEVEN CATNEY, 1440415 ONTARIO INC. c.o.b. ALLIANCE YOUTH SERVICES INC., BETHS SUEPAUL and 889961 ONTARIO INC. c.o.b. RE/MAX REALTY SPECIALISTS INC.
Third Parties
REASONS FOR DECISION - COSTS
PERELL J.
Released: April 28, 2015