Court File and Parties

Court File No.: CV-09-371181 Date: 20160608 Superior Court of Justice - Ontario

Re: Gladys Levy, Plaintiff And: Sylvie Levy, Defendant

Before: Carole J. Brown, J

Counsel: Jayson Thomas, for the Plaintiff Sylvie Levy, representing herself

Costs Endorsement

[1] The plaintiff, Gladys Levy, who was successful at trial on the claim and successful in defeating the counterclaim, seeks her costs on a substantial indemnity basis of $55,837.02 or, alternatively, on a partial indemnity basis of $44,889.01.

[2] The proceeding lasted some 24 days, due in large part, to the conduct of the defendant, Sylvie Levy, as set forth in my Reasons for Decision dated March 16, 2016, at paragraph 3 and Appendix 1 to the Decision.

[3] The plaintiff successfully claimed for repayment of monies owed by the defendant in the amount of $21,183.20. The plaintiff also successfully defended the defendant's counterclaim for $160,000 in compensatory damages and $150,000 for punitive damages, which counterclaim was dismissed.

[4] Costs are intended to compensate the successful party to the litigation for some of the legal expenses that the party has incurred. While costs are normally awarded on a partial indemnity scale, substantial indemnity costs are awarded in two circumstances: (a) where there is an offer to settle under rule 49.10 and (b) where there is a clear finding of reprehensible, scandalous or outrageous conduct on the part of the party against whom the costs award is made. A substantial indemnity award is generally made in exceptional circumstances. Where the court wishes to express disapproval of the conduct of the unsuccessful party, the appropriate award is for costs to be payable on a substantial indemnity basis.

[5] I must emphasize the conduct of the defendant, which was inappropriate throughout and served to lengthen the proceedings and to exacerbate the unfortunate situation and the breakdown of family relations between the two sisters, Gladys and Sylvie, as I found in the Reasons for Decision, most particularly at paragraph 145 and Appendix I. This Court cannot in any way condone the conduct and behaviour of the defendant during the proceedings. While I must consider the fact that the defendant was self-represented, such does not justify the outbursts in the courtroom and the arguments with the Court following rulings made against the defendant. The defendant was warned throughout the proceedings that her conduct, which would unnecessarily lengthen the proceedings, may result in significant costs being awarded against her.

[6] The factors to be considered in assessing damages are set forth in rule 57.01 of the Rules of Civil Procedure. Included are complexity of the proceedings and importance of the issues, as well as conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceedings, and, whether any steps in the proceedings were improper, vexatious or unnecessary, as well as a party's denial of or refusal to admit anything that should have been admitted. The principle of proportionality is also to be considered.

[7] In this case, as indicated above, the conduct of the defendant caused the proceedings to be unnecessarily lengthened, which increased the trial costs of the plaintiff, who was represented by counsel. As indicated in my Reasons for Decision, the defendant requested numerous adjournments for a number of reasons, including her wish to seek counsel, which was something she indicated she wished to do several years before this trial date and reiterated throughout the trial, although nothing had previously been done. As well, she indicated that she wished to change the venue of the trial, something she also had indicated to the court for several years prior to the trial, but never did. She reiterated her adjournment requests and the reasons therefor throughout the trial, which consumed significant time in terms of her arguments as regards thereto. The actual issues at trial were not complex, but were simple, and much of the trial could have been shortened and expedited by admitting facts, which should have been admitted, but which the defendant chose to deny or to argue without evidence.

[8] Further, the defendant made serious allegations of breach of trust and wrongdoing on the part of the plaintiff, which the plaintiff had to defend in order to defend her reputation, and which were unfounded.

[9] In all of the circumstances of this case, and the reasons indicated above, I am satisfied that costs on a substantial indemnity basis are appropriate and award the plaintiff costs in the amount of $55,837.02, inclusive of HST and disbursements, payable forthwith by the defendant. As regards the application before Justice Morawetz and his endorsement of February 8, 2008, which reserved costs to the trial judge, I award costs to the plaintiff in the amount of $5,000, all-inclusive.

Carole J. Brown, J. Date: June 8, 2016

Addendum to Costs Endorsement

Court File No.: CV-09-371181 Date: 20160810 Superior Court of Justice - Ontario

Re: Gladys Levy, Plaintiff And: Sylvie Levy, Defendant

Before: Carole J. Brown, J

Counsel: Jayson Thomas, for the Plaintiff Sylvie Levy, representing herself

[1] As regards paragraph 9 of the Costs Endorsement released June 8, 2016, I am advised that the $5,000 award to the plaintiff as regards the application before Justice Morawetz and his endorsement of February 8, 2008, was included in the total amount of substantial indemnity costs awarded to the plaintiff in the amount of $55,837.02.

[2] Accordingly, paragraph 9 of the Costs Endorsement will now read:

[9] In all of the circumstances of this case, and the reasons indicated above, I am satisfied that costs on a substantial indemnity basis are appropriate and award the plaintiff costs in the amount of $55,837.02, inclusive of HST and disbursements, payable forthwith by the defendant.

Carole J. Brown, J. Date: August 10, 2016