CITATION: Cheadles LLP v. Zanewycz, 2016 ONSC 1116
COURT FILE NO.: CV-09-0467 & CV-10-0131
DATE: 2016-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF: The Creditor’s Relief Act
B E T W E E N:
Court File No: CV-09-0467
Cheadles LLP, Claimant
K. Daniel Reason, for the Claimant
- and -
Walter Zanewycz, Debtor
Michael Cupello and Roy Karlstedt, for the Debtor
AND BETWEEN:
Cheadles LLP, Claimant
Court File No: CV-10-0131
K. Daniel Reason, for the Claimant
- and -
Walter Zanewycz, Debtor
Michael Cupello and Roy Karlstedt, for the Debtor
HEARD: Via written submissions
Regional Senior Justice D. C. Shaw
Decision On Costs
[1] This is a decision on the costs of two motions brought by Cheadles LLP in files CV-09-0467 and CV-10-0131.
[2] The motions were heard on May 14 and August 19, 2015.
[3] Cheadles requested that a writ of seizure and sale be issued with respect to a Certificate of Proof of Claim obtained by Cheadles in each file under the Creditors’ Relief Act, R.S.O. 1990, c. C.45. Each of the Certificates of Proof of Claim related to certain accounts rendered by Cheadles, as solicitors, to the debtor, Walter Zanewycz, as client.
[4] Mr. Zanewycz took the position that this court had no jurisdiction to make an order that a writ of seizure and sale be issued.
[5] Mr. Zanewycz also requested that the accounts related to each of the two Certificates of Proof of Claim be referred for assessment on the basis that there were special circumstances.
[6] I held that the motion in file CV-09-0467 be dismissed. In file CV-10-0131, I ordered that the Sheriff of the District of Thunder Bay enforce the Certificate of Proof of Claim as a writ of seizure and sale in the amount of $49,715. This sum was a reduction in the amount that Cheadles had asked to be enforced.
[7] I rejected Mr. Zanewycz’s request that the accounts be referred for assessment.
[8] On March 5, 2015, Justice Pierce had scheduled CV-09-0467 and CV-10-0131 for hearing on May 14, 2015. There was a third file before her, CV-15-0091, which was an application brought by Mr. Zanewycz. Justice Pierce had adjourned CV-15-0091 to May 14, 2015, to be spoken to, for the purpose of scheduling only and not for argument.
[9] On May 14, 2015, counsel for Mr. Zanewycz sought to adjourn all three matters. Counsel for Cheadles objected. I refused the request for an adjournment of CV-09-0467 and CV-10-0131. The hearing of those two matters proceeded on that date and was concluded on August 19, 2015.
[10] Counsel for Cheadles objected to counsel for Mr. Zanewycz referring on the hearing of CV-09-0467 and CV-10-0131 to affidavit material filed by Mr. Zanewycz in CV-15-0091. I held that the affidavit material in CV-15-0091 could not be referred to on the hearing of CV-09-0467 and CV-10-0131.
[11] In his submissions on costs, counsel for Cheadles seeks costs in all three files, including CV-15-0091, notwithstanding that I did not hear CV-15-0091. He also asks in his costs submissions that CV-15-0091 be dismissed. In CV-15-0091, Mr. Zanewycz, among other relief, wanted the court to order that the accounts which were the basis for the Certificates of Proof of Claim in CV-09-0467 and CV-10-0131 be referred for assessment. This was the same relief that, during the hearing of CV-09-0467 and CV-10-0131, counsel for Mr. Zanewycz had requested that I grant and which I denied.
[12] Counsel for Mr. Zanewycz objects to costs being awarded in CV-15-0091 on the basis that the file has not yet been heard and remains outstanding.
[13] I agree that CV-15-0091 was not before me on the hearing. Having agreed with the request of counsel for Cheadles on May 14, 2015, that CV-15-0091 not be heard on that date, it would not be appropriate for me to dismiss that file or award costs with respect to that file. However, it is appropriate in exercising my discretion in dealing with the costs in CV-09-0467 and CV-10-0131 to take into consideration that during the hearing on those two files, counsel for Mr. Zanewycz did, in fact, argue for an order that the accounts be assessed. That request had to be dealt with in my decision on the two motions that I heard.
[14] If and when CV-15-0091 is heard, it may well be that my decision in CV-09-0467 and CV-10-0131, to reject Mr. Zanewycz’s express request for assessment of the accounts related to those two matters, will be raised by Cheadles as an answer to the application. That remains to be determined.
[15] Each party requests costs in each of CV-09-0467 and CV-10-0131.
[16] Cheadles seeks costs of $5,000 in CV-09-0467 on the basis that I rejected Mr. Zanewycz’s request that the accounts in that file be re-assessed and held that the judgment of the Assessment Officer remains in effect.
[17] Cheadles requests costs of $11,000 in CV-10-0131 on the basis that the Sheriff was instructed to issue a writ of seizure and sale, albeit in an amount reduced from the amount Cheadles was seeking.
[18] On the other hand, Mr. Zanewycz submits that because he was entirely successful in CV-09-0467 and partially successful in CV-10-0131, he should receive costs of $28,216.10. In the alternative, Mr. Zanewycz submits that if Cheadles receives credit for its partial success in CV-10-0131, he should be awarded costs of $18,000.
[19] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of the court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[20] In my opinion, a just and reasonable outcome is that neither party be awarded costs.
[21] Mr. Zanewycz was successful on the motion in CV-09-0467. Cheadles was substantially successful on the motion in CV-10-0131. Mr. Zanewycz was unsuccessful in his request that all his accounts be referred for assessment, or re-assessment, as the case may be. All issues before me, on both motions, were inextricably intertwined.
[22] I am of the view that the results of the motions, and the result of Mr. Zanewycz’s request, made in his submissions on the motions for assessment or re-assessment of the accounts, were such that one cannot reasonably say that, in totality, one party or the other was more or less successful than the other on the hearing. Consequently, there shall be no order as to costs of either motion in CV-09-0467 and CV-10-0131. I decline to make any decision on costs in CV-15-0091.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 12, 2016
CITATION: Cheadles LLP v. Zanewycz, 2016 ONSC 1116
COURT FILE NO.: CV-09-0467 & CV-10-0131
DATE: 2016-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
B E T W E E N:
Court File No: CV-09-0467
Cheadles LLP, Claimant
- and -
Walter Zanewycz, Debtor
Court File No: CV-10-0131
AND BETWEEN:
Cheadles LLP, Claimant
- and -
Walter Zanewycz, Debtor
DECISION ON COSTS
Shaw R.S.J.
Released: February 12, 2016
/mls