CITATION: 1615540 Ontario Inc. (Healing Hands Massage Therapy Clinic) v. Simon, 2016 ONSC 1811
COURT FILE NO.: 13-CV-479650
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1615540 ONTARIO INC., carrying on business as Healing Hands Massage Therapy Clinic
Plaintiff
– and –
JOY NICOLE SIMON and ALEN M. KATIC
Defendants
AND BETWEEN:
JOY NICOLE SIMON
Plaintiff by Counterclaim
– and –
HEALING HANDS MASSAGE THERAPY CLINIC and ASHER MAHMOOD
Defendants by Counterclaim
Jeffrey Radnoff for the Plaintiff and for Defendants by Counterclaim
Joy Nicole Simon, self-represented Defendant and Plaintiff by Counterclaim
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] As explained in my Reasons for Decision on competing summary judgment motions (See 1615540 Ontario Inc. (Healing Hands Massage Therapy Clinic) v. Simon, 2016 ONSC 1623), in May 2013, 1615540 Ontario Inc., carrying on business as Healing Hands Massage Therapy Clinic (the “Clinic”), whose principal is Dr. Asher Mahmood, brought an action against Dr. Joy Nicole Simon and her husband, Alen M. Katic. The Clinic’s main claims against Dr. Simon were for loss of income and for an accounting of the fees she earned providing chiropractic services to the Clinic’s patients. The Clinic’s main claims against Dr. Simon and Mr. Katic were for an injunction requiring them to return to the Clinic the patient files that they had removed on the evening/early morning of April 19 and 20, 2013, and damages of $100,000 for conversion for misappropriating the confidential property and goodwill of the Clinic. In September 2013, Dr. Simon brought a counterclaim against the Clinic and Dr. Mahmood. She claimed: (a) $50,000 for her share of the billings from her chiropractic practice at the Clinic; (b) $100,000 for damages for inducing breach of contract with respect to her contract with Dr. Lisa Caputo; and (c) $100,000 for the conversion of the patient records. After the Clinic successfully obtained an interlocutory injunction, the action ground to a halt until 2015, when the Clinic decided to ramp up the court proceedings and attended in Civil Practice Court to obtain a date for a summary judgment motion. The motion was scheduled for November 16, 2015.
[2] As noted in my Reasons for Decision, although Dr. Simon was aware that the summary judgment motion had been scheduled, on May 11, 2015, she noted the Clinic and Dr. Mahmood in default for failing to defend the counterclaim, and on August 11, 2015, she brought an ex parte motion for a default judgment in the counterclaim. Justice Dow reserved judgment, and he released his Reasons for Judgment on September 8, 2015. He granted Dr. Simon judgment against the Clinic and Dr. Mahmood for $67,852.21.
[3] After it became aware of the default judgment, the Clinic moved to have the judgment set aside, and on November 16, 2015, I set aside the default judgment, and I scheduled a hearing for the summary judgment motions of the Clinic’s claim and Dr. Simon’s counterclaim. The motions were heard on February 19, 2016.
[4] At the summary judgment motions, the Clinic and Dr. Mahmood’s position was that the Clinic was abandoning its claim against Dr. Simon and for the counterclaim the Clinic and Dr. Mahmoods’ position was that they were prepared to pay Dr. Simon $1,593.31 but without costs. For her part, Dr. Simon pressed forward with her counterclaim, limiting it to an accounting for her unpaid share of the fees, a claim of $1,664.75, and her loss of income from the disruption of her practice caused by the patient files being returned to the custodianship of the Clinic. She abandoned her claim with respect to her contract with Dr. Caputo.
[5] On her counterclaim, Dr. Simon claimed: (a) $66,342.80 for loss of income; (b) $500 for fees from Small Claims Court; (c) $12,500 for legal fees for the injunction; (d) $18,025 for legal fees for the claim and for the counterclaim; and (e) $600 for disbursements for a total claim of $97,967.80, all inclusive.
[6] It should be noted that Dr. Simon’s claim for costs did not include the costs after the Clinic ramped up the action.
[7] With respect to Dr. Simon’s counterclaim, I ruled that the fees from the Small Claims Court were not a recoverable head of damages, and I concluded that her damages were $28,000 for loss of income, $1,664.75 for unpaid fees, and $16,000 for costs, for a total award of $45,664.75, all inclusive.
[8] With respect to Dr. Simon’s claim for costs and disbursements, I noted that these claims were not, strictly speaking, a damages claim. At paragraph 18 of my Reasons for Decision, I stated:
The disbursements of $600 and the legal fees for the injunction and for defending the claim and for the counterclaim are not, strictly speaking, a damages claim and rather are a matter of the costs of this proceeding including the costs of the summary judgment motion. That said, I award Dr. Simon $16,000, all inclusive for the costs of the claim and the counterclaim. Dr. Simon, who was self-represented at the time of the summary judgment motions, was represented during the early stages of the litigation and this claim for legal fees is fair and within the reasonable expectations of a party who failed to prosecute its own claim and who abandoned it at the hearing of the summary judgment claim.
[9] In the result, the action was dismissed without costs and the counterclaim was granted against the Clinic for $45,664.75, inclusive of costs. The counterclaim was dismissed against Dr. Mahmood without costs.
[10] After I released my Reasons for Decision, I received a letter from the Clinic’s Counsel dated March 10, 2016. The letter stated:
Further to your release of Reasons for Decision dated March 7, 2016, on the motion to set aside the Default Judgment, costs were reserved to the hearing of the summary judgment motion.
Your Honour subsequently set aside the default Judgment. At paragraph 10 of your reasons you found that Dr. Simon was aware of the summary judgment motion, when Dr. Simon noted Healing Hands Massage Clinic and Asher Mahmood in default and brought an ex-parte motion for a default judgment. I enclose a cost outline for the default Judgment motion. My client requests that Your Honour order costs on a partial indemnity scale in the amount of $10,889.00 in favour of my client to be set off against the amount owed by the Clinic.
[11] By letter of the same date, Dr. Simon wrote me and asked that the judgment remain unchanged and that the Clinic not be awarded costs.
[12] I shall not be changing the judgment.
[13] Dr. Simon’s claim of $30,525 for costs did not include her costs after the action was revived, and when I awarded her $16,000 for costs, I took into account that she had lost: (a) the motion with respect to the interlocutory injunction; (b) the motion to set aside the default judgment; and (c) the action against Dr. Mahmood personally. And, I took into account that the Clinic had: (a) succeeded on the injunction motion; (b) succeeded in setting aside the default judgment; (c) abandoned its claim; (d) partially confessed judgment in the counterclaim; and (e) otherwise lost the counterclaim. Accordingly, there is no basis for a set-off for the costs of the motion to set aside the default judgment.
[14] Order accordingly.
Perell, J.
Released: March 15, 2016
CITATION: 1615540 Ontario Inc. (Healing Hands Massage Therapy Clinic) v. Simon, 2016 ONSC 1811
COURT FILE NO.: 13-CV-479650
DATE: 20160315
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1615540 ONTARIO INC., carrying on business as Healing Hands Massage Therapy Clinic
Plaintiff
‑ and ‑
JOY NICOLE SIMON and ALEN M. KATIC
Defendants
AND BETWEEN:
JOY NICOLE SIMON
Plaintiff by Counterclaim
‑ and ‑
HEALING HANDS MASSAGE THERAPY CLINIC and ASHER MAHMOOD
Defendants by Counterclaim
REASONS FOR DECISION - COSTS
Perell, J.
Released: March 15, 2016