Glionna v. Stiller, 2015 ONSC 4091

COURT FILE NO.: CV-10-414705

DATE: 20150625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew Glionna and Theraputix, The Wellness Centre Inc., Plaintiffs

AND:

Aaron Stiller, Defendant

BEFORE: Justice Matheson

COUNSEL: Armen Karapetyan, for the Plaintiffs

Defendant self-represented

HEARD: In writing.

COSTS/PJI ENDORSEMENT

[1] This endorsement arises from a trial judgment released on April 16, 2015. There was divided success. I made the following orders:

(i) the plaintiff Theraputix obtained judgment against the defendant for $12,600; and,

(ii) the claim by the plaintiff Mr. Glionna was dismissed.

[2] The parties were given an opportunity to make written submissions about costs and pre-judgment interest. The plaintiffs made costs submissions. Although I granted the defendant an extension of time, and an opportunity to seek a further extension, no submissions were received from him.

Costs

[3] The general principles applicable to the order of party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[4] In this case, Rule 57.05(1) is also relevant. It provides that if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.

[5] Theraputix was successful in its action. The plaintiffs’ materials included a letter in relation to an offer to settle, but they do not rely on their offer for costs consequences presumably because it called for a payment by the defendant of $100,000.

[6] The plaintiffs seek about $34,000, all inclusive, which is calculated on a substantial indemnity basis up to the pre-trial, and on a partial indemnity basis thereafter. This distinction appears to be predicated on the fact that the defendant’s counterclaim was dropped at the pre-trial.

[7] The plaintiffs submit that the counterclaim was vexatious. Upon my review of the counterclaim, and bearing in mind the trial evidence that related to many of its allegations, I conclude that it was not vexatious. Further, it is more measured than a number of the unproven propositions advanced by the plaintiffs in their statement of claim. Although not pursued through to trial, I find that the counterclaim does not justify an order for costs on a substantial indemnity basis.

[8] The plaintiffs further submit that the claim by Mr. Glionna was tactical and even though it was unsuccessful, it did not substantially increase the costs of the trial. It remains the case that Mr. Stiller successfully defeated that claim, which is a proper consideration under Rule 57.01. However, I have assumed that the additional costs associated with having Mr. Glionna as a personal plaintiff were not substantial.

[9] The plaintiffs further submit that the main focus on their claim was on the finding of breach of fiduciary duty, not damages, so the quantum of the damages recovered is not determinative. They presumably make this submission because the statement of claim seeks damages totalling $350,000, among other relief, and the judgment was for only $12,600. The plaintiffs’ offer to settle seems inconsistent with this submission. In addition, while the finding of breach of fiduciary duty was significant, it does not eliminate the quantum of damages as a relevant consideration. While I will not go so far as to proceed under Rule 57.05(1) and deny costs altogether, I have taken the quantum of damages awarded into account.

[10] Further, the defendant’s breach of fiduciary duty was not as serious as alleged. As found by me at para. 109:

It is certainly the case that the defendant breached his fiduciary duties. But he tried to meet his obligations, albeit partly unsuccessfully. His actions, though wrong, were born of extreme pressure and questionable conduct by Mr. Glionna.

[11] The plaintiffs further submit that other steps taken or not taken by the defendant increased the costs of the proceeding. The events they rely on are minor, especially in the context of a self-represented litigant. As well, the defendant’s co-operative conduct at trial served to shorten the trial.

[12] Upon my review of the dockets submitted in support of the plaintiffs’ costs claim, I also observe that they include entries that are not costs in this action. For example, it is apparent that the same counsel was assisting the plaintiffs in their complaints to certain regulatory bodies. As well, there are dockets that are properly part of a bill to a client, but not part of a party and party costs claim.

[13] In the exercise of my discretion, I have considered all of the relevant factors under Rule 57.01 and conclude that the defendant shall pay costs to Theraputix in the amount of $10,000, inclusive of disbursements and applicable tax.

Interest

[14] No submissions have been received in relation to pre-judgment interest. I order pre-judgment interest on the damages award at 0.8%, the default rate under s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Bearing in mind s. 128 of the Act, and my discretion under s. 130, I order that pre-judgment interest shall be calculated from October 31, 2010. In the ordinary course, the judgment shall bear post-judgment interest at the rate of 1.3%.

Justice Matheson

Date: June 25, 2015