Ferreira v. Macedo et al., 2015 ONSC 3317
COURT FILE NO.: CV-14-499908
DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTONIO FERREIRA
Applicant
- and -
GILDO MACEDO and MARIA PIA PAGIULA
Respondents
Samuel Kazen,
for the applicant
Peter D. Woloshyn,
for the respondents
READ: May 25, 2015
F.L. Myers J.
REASONS FOR decision for costs
Background
[1] By reasons dated April 24, 2015, reported at 2015 ONSC 2656, I dismissed the applicant’s claim for partition and sale of a piece of jointly held property and ordered the respondents to pay the applicant $13,000 from the proceeds of a future sale or refinancing of the property. The applicant seeks his costs up to April 6, 2015 when the respondents offered to pay him $40,000 to settle this application.
[2] The respondents say that they admitted their willingness to pay $13,000 throughout. It was the applicant’s claim for 50% of the value of the property that they rejected and they were wholly successful on that issue in this proceeding.
[3] By offer to settle dated February 13, 2015, the applicant offered to reduce his claim to 45% of the net proceeds of sale of the property.
[4] The applicant did not bring this claim and incur almost $20,000 in legal fees to recover $13,000. Had that been his request and claim, he could and should have brought his action before the Small Claims Court. Under Rule 57.05(1) I would decline to award costs to the applicant on that aspect of his claim in any event.
[5] The respondents were wholly successful on the real issue being protecting the value of the equity of the property. They succeeded in equity to restrain the applicant from enforcing his title to the property in light of the applicant’s failure to pay anything toward the property for more than 15 years and his standing idly by as the respondents incurred costs while openly treating the property as their own.
[6] The respondents incurred costs of over $20,000 in this proceeding. They see an order for costs fixed in the amount of $13,000.
[7] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[8] In my view, the respondents should be entitled to their costs on a partial indemnity basis in the ordinary course. $13,000 is a fair and reasonable amount for the applicant to pay to the respondents for the full application on a partial indemnity basis. This is worth slightly more than the amount awarded to the applicant in para. 31 of my prior reasons in light of the time value of money. Nevertheless, it is just and equitable that the two amounts be set off and erased. Accordingly, the formal judgment in this matter should simply declare the respondents’ ownership of the property with all claims by the applicant being dismissed.
F.L. Myers J.
DATE: May 25 2015
CITATION: Ferreira v. Macedo et al. 2015 ONSC 3317 COURT FILE NO.: CV-14-499908 DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTONIO FERREIRA
Applicant
- and -
GILDO MACEDO and MARIA PIA PAGIULA
Respondents
REASONS FOR DECISION
F.L. MYERS J.
Released: May 25, 2015