SUPERIOR COURT OF JUSTICE
CITATION: Andrews v. Ballantry Homes, 2015 ONSC 97
COURT FILE NO.: 2605/12
DATE: 2015/01/06
ONTARIO
B E T W E E N:
Mary Ann Peggy Andrews
Self-represented
Plaintiff
- and -
Oakdown Holdings Inc. o/a Ballantry Homes and Weston Hardwood Design Centre Inc.
Robert B. Macdonald, for Oakdown Holdings Inc. o/a Ballantry Homes
Alistair Riswick, for Weston Hardwood Design Centre Inc.
Defendants
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I released my decision on this long motion heard at Welland on September 10, 2014.
[2] I invited costs submissions from all of the parties and have received and reviewed the submissions of all parties.
Position of Oakdown Holdings Inc. o/a Ballantry Homes
[3] Oakdown Holdings Inc. o/a Ballantry Homes was fully successful in its response to the motion of the plaintiff/moving party.
[4] Ballantry Homes seeks costs on a partial indemnity basis against the plaintiff in the amount of $23,780.93 in accordance with its submitted bill of costs.
[5] Ballantry Homes submits it had three lawyers who worked on this lengthy file in addition to utilizing the services of a law clerk where appropriate.
[6] This motion, according to Ballantry Homes, due to its own particular circumstances, required two cross-examinations, and was heard on two separate occasions before two different judges. Ballantry Homes was required to prepare, serve and file affidavits and documents on two separate occasions.
[7] The issues raised by the plaintiff were of importance to all parties and required appropriate responses, specifically since allegations of fraud were raised by the plaintiff against both defendants.
[8] Ballantry Homes submits the plaintiff’s motion was also procedurally flawed, filled with much irrelevant documentation, and thus caused Ballantry Homes to incur substantial and unnecessary legal costs.
[9] Ballantry Homes asks that it be awarded costs on a partial indemnity basis, all inclusive in the amount of $23,780.93 as against the plaintiff.
The Position of Weston Hardwood Design Centre Inc.
[10] The defendant Weston Hardwood Design Centre Inc. requests costs on a full indemnity basis in the amount of $11,580.24, or in the alternative on a partial indemnity basis in the amount of $8,653.43.
[11] The defendant Weston Hardwood Design Centre Inc. also claims it had to defend (successfully) allegations of fraud and misrepresentation and thus costs should be awarded on a full indemnity basis.
[12] It relies on the case of DiBattista v. Wawanesa Mutual Insurance Co., 2005 41985 (ON SC), [2005] O.J. No. 4865, where the court noted in para. 5:
“I have reviewed the case law submitted by counsel and am satisfied that costs should be awarded on a substantial indemnity basis where unfounded allegations of a fraud or dishonesty or other improper conduct seriously prejudicial to the character or reputation of the party are made …”
[13] Given that Weston Hardwood Design Centre Inc. was also completely successful against the plaintiff’s claim and succeeded in defeating the claims of fraud and misrepresentation, it should also be granted an award of costs.
The Position of the Plaintiff
[14] The plaintiff asks the court to award no costs to either of the defendants and continues to allege that “they have acted in bad faith” and should not be rewarded for their actions.
[15] The plaintiff states that she too has incurred substantial legal costs and “thousands of dollars supplying court documents”.
[16] The plaintiff submitted a list of legal expenses incurred by her for the court’s consideration including as follows:
Lawyer fees $32,721.12
Clerk fees $ 9,647.49
Disbursements $ 6,893.91
Total Expenses Incurred by Plaintiff: $49,262.52
The Law and Analysis
[17] Rule 57.01(1) of the Rules of Civil Procedure lists specific factors the court may consider in its discretion in an award of costs.
[18] It is clear that the defendants were, according the Rules, the successful parties and according to Rule 57.01 should be awarded costs.
[19] Rule 57.01(3) directs the court to fix the quantum of costs and to consider those factors outlined in Rule 57.01.
[20] The cases have established that the “overwhelming principle” is that of a “fair and reasonable amount” should be paid by the unsuccessful party in costs.
[21] Cases have further ruled that a fair and reasonable amount include a consideration of:
• What would the losing party expect to pay?
• The time reasonably required to prepare and present the motions;
• The amount at stake;
• The court is to balance costs with access to justice issues.
[22] I have considered the costs submissions of both successful defendants and the submissions of the plaintiff.
[23] The costs submitted on a partial indemnity scale by both defendants are reasonable.
[24] I have considered the plaintiff’s costs submissions. The plaintiff’s costs are not reasonable. The plaintiff is not entitled to recover costs as the plaintiff is not the successful party on the motion.
[25] The plaintiff’s allegations against the defendants included fraud and misrepresentation. These allegations were not proven. It was necessary for both defendants to vigorously put forth their positions with respect to these allegations. These allegations were ultimately dismissed by the court.
[26] For the court, the delicate balance is to take into consideration the costs of both successful defendants as well as what is “fair and reasonable” for the unsuccessful self-represented plaintiff to pay in these circumstances.
[27] I am persuaded that the unsuccessful self-represented litigant should be ordered to pay some costs to both defendants given the circumstances in this motion.
[28] Having considered all of the submissions I am persuaded that what is fair and reasonable under these circumstances is that the plaintiff must pay to the defendant Oakdown Holdings Inc. o/a Ballantry Homes its costs fixed at $6,000.00 all inclusive and pay to the defendant Weston Hardwood Design Centre Inc. its costs fixed in the amount of $2,200.00 all inclusive.
Orders Made
[29] Orders made are as follows:
The plaintiff shall pay costs to the defendant Oakdown Holdings Inc. o/a Ballantry Homes in the amount of $6,000.00 all inclusive.
The plaintiff shall pay costs to the defendant Weston Hardwood Design Centre Inc. in the amount of $2,200.00 all inclusive.
Costs are payable within 60 days.
Maddalena J.
Released: January 6, 2015
CITATION: Andrews v. Ballantry Homes, 2015 ONSC 97
COURT FILE NO.: 2605/12
DATE: 2015/01/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mary Ann Peggy Andrews
Plaintiff
- and –
Oakdown Holdings Inc. o/a Ballantry Homes and Weston Hardwood Design Centre Inc.
Defendants
COSTS ENDORSEMENT
Maddalena J.
Released: January 6, 2015